1201	----	None 
1341	----	"THE ALTRUIST IN POLITICS" By Benjamin Cardozo Transcriber's Note: "The Altruist in Politics" was delivered by Cardozo as his commencement oration at Columbia College in 1889. It was never copyrighted. Columbia University, which administers Cardozo's literary estate, has explicitly granted permission to Project Gutenberg to publish it. ***** There comes not seldom a crisis in the life of men, of nations, and of worlds, when the old forms seem ready to decay, and the old rules of action have lost their binding force. The evils of existing systems obscure the blessings that attend them; and, where reform is needed, the cry is raised for subversion. The cause of such phenomena is not far to seek. "It used to appear to me," writes Count Tolstoi, in a significant passage, "it used to appear to me that the small number of cultivated, rich and idle men, of whom I was one, composed the whole of humanity, and that the millions and millions of other men who had lived and are still living were not in reality men at all." It is this spirit-the spirit that sees the whole of humanity in the few, and throws into the background the millions and millions of other men-it is this spirit that has aroused the antagonism of reformers, and made the decay of the old forms, the rupture of the old restrictions, the ideal of them and of their followers. When wealth and poverty meet each other face to face, the one the master and the other the dependent, the one exalted and the other debased, it is perhaps hardly matter for surprise that the dependent and debased and powerless faction, in envy of their opponents' supremacy, should demand, not simple reform, but absolute community and equality of wealth. That cry for communism is no new one in the history of mankind. Thousands of years ago it was heard and acted on; and, in the lapse of centuries, its reverberations have but swelled in volume. Again and again, the altruist has arisen in politics, has bidden us share with others the product of our toil, and has proclaimed the communistic dogma as the panacea for our social ills. So today, amid the buried hopes and buried projects of the past, the doctrine of communism still lives in the minds of men. Under stress of misfortune, or in dread of tyranny, it is still preached in modern times as Plato preached it in the world of the Greeks. Yet it is indeed doubtful whether, in the history of mankind, a doctrine was ever taught more impracticable or more false to the principles it professes than this very doctrine of communism. In a world where self-interest is avowedly the ruling motive, it seeks to establish at once an all-reaching and all-controlling altruism. In a world where every man is pushing and fighting to outstrip his fellows, it would make him toil with like vigor for their common welfare. In a world where a man's activity is measured by the nearness of reward, it would hold up a prospective recompense as an equal stimulant to labor. "The more bitterly we feel," writes George Eliot, "the more bitterly we feel the folly, ignorance, neglect, or self-seeking of those who at different times have wielded power, the stronger is the obligation we lay on ourselves to beware lest we also, by a too hasty wresting of measures which seem to promise immediate relief, make a worse time of it for our own generation, and leave a bad inheritance for our children." In the future, when the remoteness of his reward shall have weakened the laborer's zeal, we shall be able to judge more fairly of the blessings that the communist offers. Instead of the present world, where some at least are well-to-do and happy, the communist holds before us a world where all alike are poor. For the activity, the push, the vigor of our modern life, his substitute is a life aimless and unbroken. And so we have to say to communists what George Eliot might have said: Be not blinded by the passions of the moment, but when you prate about your own wrongs and the sufferings of your offspring, take heed lest in the long run you make a worse time of it for your own generation, and leave a bad inheritance for your children. Little thought has been taken by these altruistic reformers for the application of the doctrines they uphold. To the question how one kind of labor can be measured against another, how the labor of the artisan can be measured against the labor of the artist, how the labor of the strong can be measured against the labor of the weak, the communists can give no answer. Absorbed, as they are, in the principle of equality, they have still forgotten the equality of work in the equality of pay; they have forgotten that reward, to be really equal, must be proportionate to effort; and they and all socialists have forgotten that we cannot make an arithmetic of human thought and feeling; and that for all our crude attempts to balance recompense against toil, for all our crude attempts to determine the relative severity of different kinds of toil, for all our crude attempts to determine the relative strain on different persons of the same kind of toil, yet not only will the ratio, dealing, as it does, with our subjective feelings, be a blundering one, but a system based upon it will involve inequalities greater, because more insidious, than those of the present system it would discard. Instances, indeed, are not wanting to substantiate the claim that communism, by unduly exalting our altruistic impulses, proceeds upon a false psychological basis. Yet if an instance is to be chosen, it would be hard to find one more suggestive than that afforded by the efforts of Robert Owen. The year 1824 saw the rise of Owen's little community of New Harmony, and the year of 1828 saw the community's final disruption. Individuals had appropriated to themselves the property designed for all; and even Owen, who had given to the enterprise his money and his life, was obliged to admit that men were not yet fitted for the communistic stage, and that the moment of transition from individualism to communism had not yet arrived. Men trained under the old system, with its eager rivalry, its selfish interests, could not quite yet enter into the spirit of self-renunciation that communism demands. And Owen, therefore, was led to put his trust in education as the great moulder of the minds of men. Through this agency, he hoped, the eager rivalry, the selfish interests, the sordid love of gain, might be lost in higher, purer, more disinterested ends; and, animated by that hope-the hope that in the fullness of time another New Harmony, free from contention and the disappointments of the old one, might serve to immortalize his name-animated by that hope, Owen passed the last thirty years of his life; and with that hope still before his eyes he died. But years now have passed since Owen lived; the second New Harmony has not yet been seen; the so-called rational system of education has not yet transformed the impulses or the aims of men; and the communist of today, with a history of two thousand years of failure behind him, in the same pathetic confidence still looks for the realization of his dreams to the communism of the future. And yet, granting that communism were practicable, granting that Owen's hopes had some prospect of fulfillment, the doctrine still embodies evils that must make it forever inexpedient. The readers of Mr. Matthew Arnold's works must have noticed the emphasis with which he dwells on the instinct of expansion as a factor in human progress. It is the refutation alike of communism and socialism that they thwart the instinct of expansion; that they substitute for individual energy the energy of the government; that they substitute for human personality the blind, mechanical power of the State. The one system, as the other, marks the end of individualism. The one system, as the other, would make each man the image of his neighbor. The one system, as the other, would hold back the progressive, and, by uniformity of reward, gain uniformity of type. I can look forward to no blissful prospect for a race of men that, under the dominion of the State, at the cost of all freedom of action, at the cost, indeed, of their own true selves, shall enjoy, if one will, a fair abundance of the material blessings of life. Some Matthew Arnold of the future would inevitably say of them in phase like that applied to the Puritans of old: "They entered the prison of socialism and had the key turned upon their spirit there for hundreds of years." Into that prison of socialism, with broken enterprise and broken energy, as serfs under the mastery of the State, while human personality is preferred to unreasoning mechanism, mankind must hesitate to step. When they shall once have entered within it, when the key shall have been turned upon their spirit and have confined them in narrower straits than even Puritanism could have done, it will be left for them to find, in their blind obedience and passive submission, the recompense for the singleness of character, the foresight, and the energy, that they have left behind them. In almost every phase of life, this doctrine of political altruists is equally impracticable and pernicious. In its social results, it involves the substitution of the community in the family's present position. In its political aspects, it involves the absolute dominion of the State over the actions and property of its subjects. Thus, though claiming to be an exaltation of the so-called natural rights of liberty and equality, it is in reality their emphatic debasement. It teaches that thoughtless docility is a recompense for stunted enterprise. It magnifies material good at the cost of every rational endowment. It inculcates a self-denial that must result in dwarfing the individual to a mere instrument in the hands of the State for the benefit of his fellows. No such organization of society-no organization that fails to take note of the fact that man must have scope for the exercise and development of his faculties-no such organization of society can ever reach a permanent success. However beneficent its motives, the hypothesis with which it starts can never be realized. The aphorism of Emerson, "Churches have been built, not upon principles, but upon tropes," is as true in the field of politics as it is in the field of religion. In a like figurative spirit, the followers of communism have reared their edifice; and, looking back upon the finished structure, seeking to discern the base on which it rests, the critic finds, not principles, but tropes. The builders have appealed to a future that has no warrant in the past; and fixing their gaze upon the distant dreamland, captivated by the vision there beheld, entranced by its ideal effulgence, their eyes were blinded to the real conditions of the human problem they had set before them. Their enemies have not been slow to note such weakness and mistake; and perhaps it may serve to clear up misconceptions, perhaps it may serve to lessen cant and open the way for fresh and vigorous thought, if we shall once convince ourselves that altruism cannot be the rule of life; that its logical result is the dwarfing of the individual man; and that not by the death of human personality can we hope to banish the evils of our day, and to realize the ideal of all existence, a nobler or purer life. 
14783	----	Proofreading Team THE TWELVE TABLES _prefaced, arranged, translated, annotated_ BY P.R. COLEMAN-NORTON PRINCETON UNIVERSITY DEPARTMENT OF CLASSICS INTRODUCTION The legal history of Rome begins properly with the Twelve Tables. It is strictly the first and the only Roman code,[1] collecting the earliest known laws of the Roman people and forming the foundation of the whole fabric of Roman Law. Its importance lies in the fact that by its promulgation was substituted for an unwritten usage, of which the knowledge had been confined to some citizens of the community, a public and written body of laws, which were easily accessible to and strictly binding on all citizens of Rome. Till the close of the republican period (509 B.C.-27 B.C.) the Twelve Tables were regarded as a great legal charter. The historian Livy (59 B.C.-A.D. 17) records: "Even in the present immense mass of legislation, where laws are piled on laws, the Twelve Tables still form the fount of all public and private jurisprudence."[2] This celebrated code, after its compilation by a commission of ten men (_decemviri_), who composed in 451 B.C. ten sections and two sections in 450 B.C., and after its ratification by the (then) principal assembly (_comitia centuriata_) of the State in 449 B.C., was engraved on twelve bronze[3] tablets (whence the name Twelve Tables), which were attached to the Rostra before the Curia in the Forum of Rome. Though this important witness of the national progress probably was destroyed during the Gallic occupation of Rome in 387 B.C., yet copies must have been extant, since Cicero (106 B.C.-43 B.C.) says that in his boyhood schoolboys memorized these laws "as a required formula."[4] However, now no part of the Twelve Tables either in its original form or in its copies exists. The surviving fragments of the Twelve Tables come from the writings of late Latin writers and fall into these four types: (1) Fragments which seem to contain the original words (or nearly so) of a law, "modernized" in spelling and to some extent in formation; (2) Fragments which are fused with the context of the quoter, but which otherwise exhibit little distortion; (3) Fragments which not only are fused with the sentences of the citer but also are much distorted, although these preserve in paraphrase the purport of the provisions of a law; (4) Passages which present only an interpretation (or an opinion based on interpretation) or a title or a convenient designation of a law. Only in very few cases do we know or can we conjecture the number of the tablet whereon any law appeared. Consequently of the arrangement very little is ascertainable and the attribution of some items to certain tablets is debatable. The probable order of the fragments, which total over 115, has been inferred from various statements and from other indications of ancient authors. The amount of detail apparently varies either with the importance of the matter or with the degree of general or particular knowledge of the subject supposed by the commissioners to be held commonly by the citizens. The style is characterized by such simplicity and by such brevity that the meaning in some instances borders upon obscurity,--at least so far as modern interpretation is concerned. The value of the Twelve Tables consists not in any approach to symmetrical classification or even to terse clarity of expression, but in the publication of the method of procedure to be adopted, especially in civil cases, in the knowledge furnished to every Roman of high or low degree as to what were both his legal rights and his legal duties, in the political victory won by the plebeians, who compelled the codification and the promulgation of what had been largely customary law interpreted and administered by the patricians primarily in their own interests. THE TWELVE TABLES[5] TABLE I. PROCEEDINGS PRELIMINARY TO TRIAL 1. If he (the plaintiff) summon [the defendant] to court (_in ius_), he (the defendant) shall go. If he (the defendant) go not, he (the plaintiff) shall call a witness thereto. Then only he (the plaintiff) shall take [the defendant] by force. 2. If he (the defendant) attempt evasion or take to flight, he (the plaintiff) shall lay hand [on the defendant]. 3. If disease or [old] age shall be an impediment, he who shall summon [the defendant] to court (_in ius_) shall grant [him] a conveyance; if he (the plaintiff) shall not wish, he (the plaintiff) shall not spread [with cushions] a covered carriage. 4. For a freeholder (taxpayer whose fortune is valued at not less than 1,500 _asses_[6]) a freeholder shall be surety (_vindex_) [for his appearance at trial]. For a proletary (non-taxpayer whose fortune is rated at less than a freeholder's) any one who shall be willing shall be surety (_vindex_). 5. When they (the parties) come to terms, [an official] shall announce [it].[7] 6. If they (the parties) agree not on terms, they shall state [their] case in the _comitium_ (meeting-place) or, in the _forum_ (market-place) ere noon. Both (parties) shall appear in person and shall argue the matter. 7. [If one of the parties shall not have appeared,] after noon [the judge] shall adjudge the case (_lis_) in favor of him present. 8. If both (parties) be present, sunset shall be the time-limit [of the proceedings]. 9. [Both parties shall post] sureties (_vades_) and subsureties (_subvades_) [for their appearance]. TABLE II. TRIAL 1. The legal action of solemn deposit (_sacramenti actio_) [demands that each litigant shall wager either 500 _asses_ or 50 _asses_]: 500 _asses_ for solemn deposit (_sacramentum_) when the subject of the dispute [is valued at] 1,000 _asses_ or more, 50 _asses_ when [estimated at] less [than 1,000 _asses_]. [But] if the controversy concerns the liberty of a human being [, however valuable may be the person], the solemn deposit (_sacramentum_) [shall be] 50 _asses_. 2. A dangerous disease or a day appointed [for the hearing of a case] with an alien [, when the latter is a party] ... If any of these (circumstances) be an impediment for judge (_index_)[8] or arbitrator (_arbiter_)[9] or party (_reus_),[10] on this account the day of trial shall be deferred. 3. Whoever shall have need of evidence, he shall go on every third day[11] to cry[12] before the doorway [of the witness's house]. TABLE III. DEBT 1. Of debt acknowledged and for matters judged in court (_in iure_) thirty days shall be allowed by law [for payment or for satisfaction].[13] 2. After that [elapse of thirty days without payment] hand shall be laid on (_manus iniectio_) [the debtor]. He shall be brought into court (_in ius_). 3. Unless he (the debtor) discharge the debt or unless some one appear in court (_in iure_) to guarantee payment for him, he (the creditor) shall take [the debtor] with him. He shall bind [him] either with thong or with fetters, of which the weight shall be not less than fifteen pounds or shall be more, if he (the creditor) choose. 4. If he (the debtor) choose, he shall live on his own [means]. If he live not on his own [means], [the creditor,] who shall hold him in bonds, shall give [him] a pound of bread daily; if he (the creditor) shall so desire, he shall give [him] more. 5. Unless they (the debtors) make a compromise, they (the debtors) shall be held in bonds for sixty days. During those days they shall be brought to [the magistrate] into the _comitium_ (meeting-place) on three successive market-days and the amount for which they have been judged liable shall be declared publicly. Moreover on the third market-day they (the debtors) shall suffer capital punishment (_capite poenae_) or shall be delivered for sale beyond the Tiber [River]. 6. On the third market-day they (the creditors) shall cut pieces.[14] If they shall have cut more or less [than their shares], it shall be with impunity (_s[in]e fraude_). TABLE IV. PATERNAL POWER 1. A dreadfully deformed child shall be killed quickly. 2. If a father thrice surrender a son for sale, the son shall be free from the father.[15] 3. [To repudiate his wife her husband] shall order her to mind her own affairs, shall take [her] keys [, shall expel her]. 4. Into a legal inheritance he who has been in the womb (_in utero_) is admitted [, if he shall have been born].[16] TABLE V. INHERITANCE AND GUARDIANSHIP 1. Women shall remain under guardianship (_tutela_), even though they shall become of full age (_perfecta aetas_)[17] ... the Vestal Virgins are excepted [and] shall be free [from control]. 2. The mancipable (conveyable or movable) possessions of a woman who is under tutelage of [her] agnates[18] shall not be acquired rightfully by usucapion (long usage or long possession), save if these (possessions) by herself shall have been delivered with the sanction of [her] guardian (_tutor_).[19] 3. According as a person shall have ordered regarding his property or the guardianship (_tutela_) of his estate, so shall be the law (_ita ius esto_). 4. If a person die intestate (_intestatus_) and have no self-successor (_suus heres_), the [deceased's] nearest male agnate shall have possession of the estate. 5. If there be no male agnate, the [deceased's] clansmen[20] shall have possession of the estate. 6. To persons[21] for whom a guardian (_tutor_) shall not have been appointed by will (_testamentum_), to them [their] agnates shall be guardians. 7. If a person be insane (_furiosus_), if there be not a guardian (_custos_) for him, rightful authority over his person and over his property shall belong to [his] agnates and [in default of these] to [his] clansmen. If a person be a spendthrift (_prodigus_), he shall be prohibited from [administering his own] goods and he shall be under the guardianship (_curatio_) of [his] agnates. 8. If a freedman (_libertus_) shall have died intestate without self-successor, [his] patron (_patronus_) shall take the inheritance of a Roman citizen-freedman ... from said household into said household. 9. Items which are in the category of debts [due to or incurred by a deceased person] shall be divided [among his consuccessors] by mere operation of law (_ipso iure_) [in proportion] to [their] portions of the inheritance.[22] 10. Apportionment of an estate (_actio familiae erciscundae_) [occurs], when coheirs (_coheres_) wish to withdraw from common [and equal] participation [in the inheritance].[23] TABLE VI. OWNERSHIP AND POSSESSION 1. When a person shall make bond (_nexum_) and conveyance (_mancipium_), according as he has specified with [his] tongue, so shall be the law (_ita ius esto_). 2. Both conveyance (_mancipatio_) and surrender in court (_in iure cessio_) are confirmed. 3. Articles which have been sold and delivered are not acquired by the buyer otherwise than if he has paid the price to the seller or has satisfied him in some other way, that is, by providing a guarantor (_expromissor_) or a security (_pignus_). 4. It shall be sufficient to make good those [faults] which have been named by [one's] tongue, [while] for those [flaws] which he (the vendor) has denied expressly [, when asked about these,] he (the vendor) shall undergo a penalty of double [damages].[24] 5. For a loyal person and for a person restored to allegiance there shall be the same right (_ius_) of bond (_nexum_) and of conveyance (_mancipium_) with the Roman people.[25] 6. Against an alien (_hostis_) title of ownership (_auctoritas_) shall be [valid] forever.[26] 7. A prescriptive title (_usucapio_) of movable things is completed by one year's [possession], but [a prescriptive title] of an estate and of buildings [is completed] by two years' [possession]. 8. A person [who had been a slave and] who has been declared to be a free man [in a will on some condition], if he shall have given 10,000 [_asses_] to the heir, although he (the slave) has been alienated by the heir, by giving the money to the purchaser shall enter into his freedom. 9. If any woman [not married by _confarreatio_[27] or by _co-emptio_[28]] be unwilling to be subjected in this manner [by _usus_ (possession)] to the hand of her husband (_in manum mariti_), she shall be absent [from his house] for three successive nights in every year and by this means shall interrupt the _usus_ (possession) of each year.[29] 10. If the (the parties) join [their] hands [on the disputed property when pleading] in court (_in iure_), [the actual possessor shall retain provisional possession; but, when it is a case of personal freedom, the magistrate] shall grant the right of claim (_vindicia_) [provisionally to the party] asserting [the person's] freedom. 11. [If he find that another has used his timber (_tignum_)[30] in building a house or in supporting vines,] a person shall not dislodge from the framework the timber fixed in buildings in vineyard; [but he shall have the right of action] for double [damages] against him who has been convicted of fixing [such timber]. 12. Whenever [the vines] have been pruned, until fruit shall have been gathered [therefrom, the owner shall not recover the timber]. TABLE VII. REAL PROPERTY 1. [Ownership] within [a strip of] five feet [along a boundary] shall not be acquired by long usage (_usucapio_).[31] 2. The way round [each outer wall of a building] shall be two and one-half feet. 3. If they (the parties) disagree, boundaries shall be marked by three arbitrators (_arbiter_).[32] 4. [Regulations relating to] inclosures, inherited plots, cottages.[33] 5. The width of a road [extends to] eight feet on a straight [stretch], [but it extends to] sixteen [feet] on a bend. 6. [Neighboring] persons shall mend the roadway. If they keep it not laid with stones, one shall drive [one's] beast vehicles [across the land] where one shall wish. 7. If rain-water do damage [through artificial diversion from its natural channels, the offending owner] shall be restrained by an arbitrator (_arbiter_). 8. If a water-course directed through a public place shall do damage to a private person, to the [same] private person shall be [the right to bring] an action (_actio_), that damage shall be repaired for the owner. 9. Branches of a tree may be lopped all around to a height of fifteen feet.[34] If a tree on a neighbor's farm [be bent crooked] by the wind [and] lean over one's farm, [one can take] legal action (_agere_) for removal of that [tree or at least of the offending part of it]. 10. [The owner of a tree] may gather its fruit which falls upon another's farm. TABLE VIII. TORTS OR DELICTS 1. If any person had sung or had composed a song,[35] which caused slander[36] or insult to another person ... he should be clubbed to death.[37] 2. A person who had sung an evil spell ...[38] 3. If a person has broken another's limb (_membrum_),[39] unless he make agreement [for compensation] with him, there shall be retaliation in kind (_talio_).[40] 4. If a person has broken or has bruised a bone with hand club, he [shall] undergo a penalty of 300 [_asses_, if] to [an injured] freeman, [or] of 150 [_asses_,] if to [an injured] slave. 5. If a person shall have done [simple] harm (_iniuria_) to another, penalties shall be 25 _asses_. 6. [If] a person shall have caused loss ... [41] 7. If a quadruped shall be said to have caused damage (_pauperies_), legal action (_actio_) [shall be sanctioned] either for the surrender of the thing which made the damage[42] or for the offer of assessment for the damage. 8. [If a person] pasture [his] cattle [on a neighbor's land, he shall be liable to a legal action].[43] 9. He who has enchanted crops[44] ... nor should he decoy another's corn ... [45] 10. For pasturing on or for cutting secretly by night [another's] crops acquired by tillage [shall be] in the case of an adult hanging and death [by sacrifice] to Ceres;[46] a person under the age of puberty (under 15 years of age) [shall] either be scourged at the discretion [of the magistrate] or make composition by [paying] double [damages] for the harm [done]. 11. Who shall have destroyed by burning a building or a stack of corn set alongside a house is ordered to be bound, scourged, burned to death, provided that knowingly and consciously he shall have committed this; but if this be by accident [, that is] by negligence, either he is ordered to repair the damage or, if he be too poor to be competent for such punishment, he shall be chastised more lightly. 12. Any person who shall have felled wrongfully (_iniuria_) other persons' trees shall pay 25 asses for every [tree]. 13. If theft has been done by night, if [owner] has killed him (the thief), he (the thief) shall be [held] killed lawfully (_iure_). 14. It is forbidden that a thief be killed by day ... Unless he (the thief) defend himself with a weapon, even though he (the thief) shall have come with a weapon, unless he (the thief) shall use that weapon and shall resist, you shall not kill him. And even if he (the thief) resist, [you] shall shout [, that some persons may hear and assemble].[47] 15. In the case of all other thieves caught in the act [it is ordained] that freemen be scourged and be adjudged [as bondsmen] to the person against whom the theft has been committed, provided that they had done this by day and had not defended themselves with a weapon; that slaves caught in the act of theft be whipped with scourges and be thrown from the rock;[48] that boys below the age of puberty (under 15 years old) be flogged at [the magistrate's] discretion and that damage done by them be repaired. 16. Thefts which have been discovered through [use of] platter and loincloth [shall be punished just as if the culprits had been caught in the act]. For cases of stolen goods discovered (_furtum conceptum_) [by other means than by platter and loincloth] or introduced (_furtum oblatum_) the penalty is triple [damages].[49] 17. If a person plead on case of theft, in which [the thief] shall not be caught in the act, [the thief] shall compound for the loss by [paying] double [damages].[50] 18. A stolen thing is debarred from prescription (_usucapio_).[51] 19. No person shall practise usury at a rate of more than one-twelfth[52] ... [if he do,] a usurer shall be condemned for quadruple [damages]. 20. In a suit concerning an article deposited [with a person who has failed to return the article] legal action (_actio_) for double [damages is granted]. 21. [If] guardians (_tutor et curator_) [be suspected of mal-administration, there is] the right to accuse [them] on suspicion ... the legal action (_actio_) against guardians (tutor) [shall be] for double [damages]. 22. If a patron (_patronus_) shall have defrauded a client (_cliens_), he shall be forfeited solemnly (_sacer_).[53] 23. Whoever shall have allowed himself to be called as a witness or shall have been a scales-bearer (_libripens_),[54] if he [as a witness] pronounce not his testimony, he shall be dishonored and incapable of giving evidence (_intestabilis_). 24. The penalty for false testimonies [is] that any person who has been convicted of speaking false witness [shall be] precipitated from the Tarpeian Rock. 25. If a weapon has sped from one's hand rather than [if the wielder] has hurled [it, ... he shall atone for the accidental deed by providing] the substitution of a ram [as a peace-offering to prevent blood-revenge]. 26. [For administering] a noxious drug ... 27. No person shall hold nocturnal meetings in the city. 28. Members of guilds have the power to make for themselves any binding rule which they may wish, provided that they violate nothing in accordance with public law (_publica lex_). TABLE IX. PUBLIC LAW 1. Laws of personal exception (_privilegium_)[55] shall not be proposed. 2. [Laws] concerning the person (_caput_)[56] of a citizen shall not be passed except by the greatest assembly (_maximus comitiatus_)[57] and through those whom they (the consuls)[58] have placed upon the registers of the citizenry. 3. A judge (_iudex_) or an arbitrator (_arbiter_) legally (_iure_) appointed, who has been convicted of receiving money for declaring a decision, shall be punished capitally (_capite_). 4. [Provisions pertaining to] the investigators of murder (_quaestor parricidii_) [appointed to have charge over capital cases]. 5. Whoever shall have incited a public enemy (_hostis_) or whoever shall have delivered a citizen (_civis_) to a public enemy shall be punished capitally (_capite_). 6. It is forbidden to put to death ... unconvicted any one whomsoever. TABLE X. SACRED LAW 1. A dead person shall not be buried or burned in the city.[59] 2. More than this shall not be done. The funeral pyre (_rogum_) shall not be smoothed with the axe.[60] 3. [Expenses of a funeral shall be limited to] three [mourners wearing] veils and one [mourner wearing] small purple tunic and ten flute-players. 4. Women shall not tear their cheeks or have a _lessus_ (sorrowful outcry)[61] on account of the funeral. 5. The bones of a dead person shall not be collected that one may make a funeral afterward.[62] An exception is for death in battle or on foreign soil.[63] 6. Anointing by slaves and every kind of drinking-bout is abolished ... [there shall be] no costly sprinkling, no myrrh-spiced drink, no long garlands, no incense-boxes. 7. Whoever wins a crown (_corona_)[64] himself or through his chattel[65] or by his valor, [a crown] is bestowed on him [, when he is burned or buried] ... on him (who has won it) and on his father [it shall be laid] with impunity (_sine fraude_). 8. This also shall not be done: to make more than one funeral and to spread more than one bier for one person. 9. Gold shall not be added [to a corpse]. But him whose teeth shall have been fastened with gold, if a person shall bury or shall burn him with that (gold), it shall be with impunity (_sine fraude_). 10. It is forbidden for a new pyre (_rogum_) or a burning-mound (_bustum_) to be erected nearer than sixty feet to another person's buildings without the owner's consent.[66] 11. It is forbidden for a vestibule of a sepulcher (_forum_) and a burning-mound (_bustum_)[67] to be acquired by usucapion. TABLE XI. SUPPLEMENTARY LAWS 1. Intermarriage (_conubium_) between plebeians and patricians shall not occur.[68] 2. [Regulations] concerning intercalation. 3. [Declaration concerning] days deemed favorable for official legal action (_dies agendi_). TABLE XII. SUPPLEMENTARY LAWS 1. [There shall lie] a levy of distress (_pignoris capio_)[69] against a person who has bought an animal for sacrifice and pays not the price; likewise against a person who makes not payment for that yoke-beast which any one has lent for this purpose, that therefrom he may raise money to spend on a sacred banquet (sacrifice). 2. If a slave shall have committed theft or shall have done damage ... with his master's knowledge ... the action for damages (_actio noxalis_) is in the slave's name. Arising from delicts committed by children and by slaves of a household ... actions for damages (_actio noxalis_) shall be appointed, that the father or the master can be allowed either to undergo assessment of the suit (_litis aestimatio_) or to deliver [the delinquent] for punishment.[70] 3. If a person has taken [a thing by] a false claim,[71] if he should wish ... the magistrate shall grant three arbitrators (_arbiter_); by their [adverse] arbitration (_arbitrium_) ... [the defendant] shall compound for loss caused by [paying] double [damages from enjoyment of the article].[72] 4. It is forbidden to dedicate for consecrated use (_in sacrum_) any thing of which there is a controversy [about its ownership]; otherwise a penalty of double [the amount involved] shall be suffered.[73] 5. Whatsoever last the people have ordained, this shall be binding and valid (_ius ratumque_).[74] UNPLACED FRAGMENTS There are extant about a dozen fragments of whose place in the Twelve Tables we are ignorant. In nearly every instance these fragments consist of only one word or phrase, which later Latin antiquarians have preserved to illustrate an ancient spelling or to explain an archaic usage or to point a definition. The longest fragment only is worth reproduction for the present purpose: To appeal from any judgement (_inuicium_) and sentence (_poena_) is allowed.[75] NOTES [1] The code was known under two titles: _Lex Duodecim Tabularum_ (Law of Twelve Tables) and _Duodecim Tabulae_ (Twelve Tables). [2] _Ab Vrbe Condita_, III. 34. 6. This claim--that these statutes were the source of all public and private law--is exaggerated. Rather the code is chiefly an exposition of private law, derived from customary law, which already existed, and contains some public and religious law as well. For another estimate see Cicero, _De Oratore_, I. 44. 195, where the advocate asserts that "the small manual of the _Twelve Tables_ by itself surpasses the libraries of all the philosophers both in weight of authority and in wealth of utility." [3] Such is the almost unanimous tradition; but one source says ivory (_eboreas_). Since some scholars scout the use of ivory in Rome at that time, the emendation of _eboreas_ to _roboreas_ (wooden) is suggested. [4] _De Legibus_, II. 23. 59: _ut carmen necessarium_. [5] Words between [ ] complete the sense of a sentence. Words between ( ) are either definitions or translations. [6] The _as_ originally was a bar (one foot in length) of _aes_ (copper), then a weight, then a coin weighing one pound and worth about $.17. From time to time the _as_ was reduced in weight and was depreciated in value, until by the provisions of the Lex Papiria in 191 B.C. the _as_ weighed one-half ounce and was valued at $.008. [7] Some scholars suggest that this statute should be translated thus: "When the parties agree on preliminaries, each party shall plead." [8] The _index_ hears cases in which a fixed amount is to be adjudged. [9] The _arbiter_ hears cases in which an indefinite sum is to be assessed. [10] At this time in the language _reus_ means any litigant; in later Latin _reus_ is restricted to signify the defendant. [11] Perhaps "on every other day" or "on three market-days" is meant. [12] This means, we suppose, that the litigant requiring evidence must proclaim his need by shouting certain legal phrases before the residence of the person who is capable of supplying such evidence and who thereby is summoned to court. [13] Some scholars suggest that the Latin represented by the words "and for matters in court" should be omitted and that the passage should open "For persons judged liable for acknowledged debt", thus restricting the period of thirty days' grace only to matters of debt. Even if this view be correct, it disproves not the probability that the thirty days applied to various kinds of cases. [14] "Shall cut pieces" (_partes secanto_) is explained variously: "to divide the debtor's functions or capabilities", "to claim shares in the debtor's property", "to divide the price obtained for the sale of the debtor's person", "to divide the debtor's family and goods", "to announce to the magistrate their shares of the debtor's estate"; the old Roman writers, however, understand by the phrase that the creditors can cut their several shares of the debtor's body! [15] In primitive times a father can sell his son into slavery. If the buyer free the son, the son reënters his father's control (_patria potestas_). Here apparently we have an old _formula_ surviving in a sham triple sale, whereby a descendant is liberated from the authority of an ascendant, or after a triple transfer and a triple manumission the son is freed from his father and stands in his own right (_sui iuris_). [16] Otherwise (an interpretation probably, perhaps not a paraphrase): "After ten months from [the father's] death a child born shall not be admitted into a legal inheritance." [17] "Full age" for females is 25 years. For keeping women of full age under a guardian almost no reason of any worth can be urged. The common belief, that because of the levity of their disposition (_propter animi levitatem_) they often are deceived and therefore may be guided by a guardian, seems more plausible than true. According to Roman Law of this period a woman never has legal independence: if she be not under the power (_potestas_) of her father, she is dependent on the control (_manus_) of her husband or, unmarried and fatherless, she is subject to the governance (_tutela_) of her guardian. [18] Agnates (_agnati_) are relatives by blood or through adoption on male side only; cognates (_cognati_) are blood-relatives on either male or female side. The family of the _ius civile_ is the agnatic family; the family of the _ius gentium_ is the cognatic family. [19] Beside a guardian (_tutor_) for a child of certain age (sixth statute of this Table; cf. p. 7, n. 21) there is provided also a guardian (_custos_, later _curator_) for a lunatic and for a prodigal (seventh statute of this Table). [20] Clansmen (_gentiles_) are persons all belonging to the same clan (_gens_) as the deceased and of course include agnates, when these exist. [21] Boys between the ages of 7 and 15, girls between the ages of 7 and 13, women neither under paternal power (_patria potestas_) nor under marital control (_in manu mariti_). [22] Another version of this provision reads thus: "Debts bequeathed by inheritance shall be divided by automatic liability (_ipso iure_) proportionally [among the heirs], after the details shall have been investigated." [23] That is, the judicial division of an estate by a _iudex_ among the disagreeing coheirs. [24] That is, double the proportionate part of the price or of the things transferred. [25] This statute is set in Table I by some scholars. [26] This probably means that a foreigner resident in Roman territory never can obtain rights over any property simply by long possession (_usu-capio_) thereof; but the meaning of _auctoritas_ in this clause is disputed. At any rate _usucapio_ is peculiar to Roman citizens. This provision sometimes is placed in Table III by scholars. [27] This is an exclusively patrician type of wedding, wherein is made a mutual offering of bread in the presence of a priest and ten witnesses. [28] This type of wedlock, used originally by plebeians, is a fictitious sale, by which a woman is freed from either _patria potestas_ or _tutela_. It comes perhaps from the primitive custom of bride-purchase. [29] This method explains how a wife can remain married to a husband without remaining in his _manus_ (rights of possession). If the _usus_ be interrupted, the time of the _usus_ must begin afresh, because the previous possession (_usus_) is considered as cancelled. [30] Apparently _tignum_, as "timber" in English covers material for construction, includes every kind of material used in buildings and in vine-yards. [31] This strip is reserved as a path between any two estates belonging to different owners. Both owners can walk on the whole space, but neither owner can claim possession of the strip through continued usage. [32] In view of the ancient tradition that the decemvirs sent to Athens a committee to study the laws written by Solon (c. 639 B.C.--c. 559 B.C.) for the Athenians (Livy, _op. cit_., III. 33. 5), it may not be out of place to record what Gaius (_ob. c_. 180 A.D.) reports about marking boundaries (_Digesta_, X. 1. 13): "We must remember in an action for marking boundaries (_actio finium regundorum_) that we must not overlook that old provision which was written in a manner after the pattern of the law which at Athens Solon is said to have given. For there it is thus: 'If any man erect a rough wall alongside another man's estate, he must not overstep the boundary; if he build a massive wall, he must leave one foot to spare; a building, two feet; if he dig a trench or a hole, he must leave a space equal or about equal in breadth to depth: if a well, six feet; an olive tree or a fig tree he must plant nine feet from the other man's property and any other trees five feet.'" While there is no evidence whatever that any enactment of the Twelve Tables reproduced in any form the terms of the Athenian statute here quoted, still the Twelve Tables may have contained some such provisions. [33] What were these conditions we know not; all that we have from this item are the unbracketed words, which are quoted as examples of how words change their meanings and which are assigned to the Twelve Tables. [34] Some scholars suppose that only branches over fifteen feet above ground are meant. In any case the idea is that shade from the tree may not damage a neighboring estate. [35] We know that this item was interpreted to include prose as well as verse. [36] Slander and libel are not distinguished from each other in Roman Law. [37] The severity of the penalty indicates that the Romans viewed offence not as a private delict but as a breach of the public peace. [38] Apparently an incantation against a person, for the ninth statute in this Table treats such practice against property. [39] The penalty points to an incurable maim or break, because the next statute seems to provide for injuries which can be mended. [40] Thus the injured person or his next of kin may maim or break limb for limb. Cf. the Mosaic _lex talionis_ recorded in _Leviticus_, 24. 17-21. [41] Most scholars connect this fragment with damage to property and conjecture that the rest of it must have been concerned with compensation for accidental damage. [42] That is, the animal which committed the damage may be surrendered to the aggrieved person. [43] From the context, wherein the unbracketed words are preserved, we can reconstruct the sense of this statute. [44] Not apparently into one's own fields, but to destroy these where these were. [45] Apparently into one's own fields by means of magical incantation. [46] Properly the goddess of creation, occasionally (by extension) the goddess of marriage, usually the goddess of agriculture, especially the goddess of cultivation of grain and of growth of fruits in general. Ceres is represented commonly as a matronly woman, always clad in full attire of flowing draperies, crowned either with a simple ribband or with ears of grain holding in her hand sometimes a poppy, sometimes a scepter, sometimes a sickle, sometimes a sheaf of grain, sometimes a torch, sometimes a basket full of fruits or of flowers, seated or standing in a chariot drawn by dragons or by horses. [47] That is, the slayer must call aloud, lest he be considered a murderer trying to hide his own act. Our sources leave it uncertain whether the law forbids that a thief be killed by day, unless he defend himself, with a weapon, or the law permits that a thief be killed, if he so defend himself. [48] A southern spur of the Capitoline Hill, which overlooks the Forum, and named after Tarpeia, a legendary traitress, who, tempted by golden ornaments of besieging Sabines, opened to them the gate of the citadel, of which her father was a governor during the regal period. As they entered, the enemy by their shields crushed her to death: Tarpeia was buried on the Capitoline Hill, whereon stood the citadel, and her memory was preserved by the name of the Tarpeian Rock (Rupes Tarpeia), whence certain classes of condemned criminals, in later times, were thrown to their death. [49] Our sources tell us that a person who searched for stolen property on the premises of another searched alone and naked, lest he be deemed later to have brought concealed in his clothing any article, which he might pretend then to have found in the house, save for a loincloth and a platter, on the latter of which he probably placed the stolen articles when found. We hear also that a man could institute a search in normal dress, but only in the presence of witnesses. If in the latter case stolen goods were discovered, the thief on conviction was condemned to pay thrice their value for _furtum conceptum_ (detected theft). But in either case, if the accused householder could prove that a person other than himself for any reason had placed the stolen articles in his house, he could obtain from that person on conviction damages of thrice their value for _furtum oblatum_ ("planted" theft). Search by platter and loincloth (_lanx et licium_) became obsolete; search with witnesses present survived. [50] The ancient commentators take this statute to mean "double in kind" not in value: for example, two cows surrendered for one cow stolen. [51] That is, neither a thief nor a receiver of stolen goods, whether acquired through purchase or by other method, can acquire title to property in stolen goods through long possession of such. [52] The uncia (whence our "ounce") is the unit of division of the as and is used also as one-twelfth of anything. One-twelfth of the principal paid yearly as interest equals 8-1/3%. [53] This originally is a religious penalty, whereby the person is sacrificed. But sacer comes to mean "a person disgraced and outlawed and deprived of his property." [54] At a sale (_mancipium_ or _mancipatio_) the buyer in the presence of five adult citizens had his money weighed by another adult citizen who held scales for this purpose. This practice obtained originally ere the introduction of coinage. [55] That is, enactments referring to a single citizen, whether or not in his favor. [56] Caput includes also privileges of citizenship (_civitas_). [57] Commonly known as the _comitia centuriata_, an assembly which comprised all citizens. To this assembly a citizen convicted in court on a capital charge had the right of appeal (_ius provocationis_) at least as early as the passage of the Lex Valeria in 509 B.C., for Cicero claims that the pontifical as well as the augural books state that the right of appeal from the regal sentences had been recognized (De Re Publica, 11. 31. 54). [58] This statute is quoted by Cicero (De Legibus, III. 4. 11), who inserts censores (censors) as the subject of the last verb _locassint_ (have placed). But the last clause must have been "modernized" either by Cicero or in his source, because the promulgation of the Twelve Tables in 449 B.C. antedated the creation of the censorship, which can not be traced higher than 443 B.C., if we can believe Livy's account of its institution (op. cit., IV. 8. 2-7). Before that time the consuls superintended the lists of citizens. [59] The first provision doubtlessly descends from a primitive tribal tabu. Cicero supposes that the second provision is due to danger from fire (De Legibus, II. 23. 58). [60] In view of the simplicity enjoined in some of the following statutes of this Table, for the decemvirs apparently took a dim view of extravagant funerals, this statute seems to mean that a rough-hewn pyre without elaborate smoothness of its wooden material suffices for the cremation-couch of a citizen. [61] Cicero says that some older interpreters suspected that some kind of mourning-garment was meant by _lessus_, but that he inclines to the interpretation that it signifies a sort of sorrowful wailing (De Legibus, II.23.59) [62] This provision is aimed at the common custom of prolonging mourning by gathering and preserving unburied some part of the corpse. When this part (_os resectum_) later had been buried, then only mourning ceased. It is possible that some Romans may have thought that cremation might be wrong or that its ceremony was inadequate. [63] That is, in such a case a limb could be carried to Rome and then buried. [64] That is, a garland or a chaplet or a wreath as a prize of achievement. [65] A chattel, for example, is a slave or a horse who wins a wreath for the owner. [66] Cicero says that this statute seems to suggest fear of disastrous fire (_De Legibus_, II. 24. 61). [67] In the burning-mound also ashes were buried. [68] This statute proved so unpopular that it soon was repealed by the Lex Canuleia in 445 B.C. [69] This process of "taking a pledge" is the seizure and the detention of a debtor's property or part thereof to induce the debtor to pay the debt before any other legal action will be taken. It will be noticed that the two instances given in this statute concern Sacred Law, with which by anticipation the fourth statute of this Table likewise is concerned. Modern scholars place these two provisions among the Supplementary Laws despite the temptation to set these among the statutes of Table X, of which all but one item come from Cicero's discussion of Sacred Law in his _De Legibus_, II. 23. 58-24. 61, in the concluding portion of which Cicero seems to speak with some finality that he has given all the regulations regarding religion found in the Twelve Tables. Moreover these two rules come from Gaius, who flourished more than two centuries after Cicero. But if every Supplementary Law resembling the subject-matter of Tables I-X should be advanced to the appropriate position forward, few would be the statutes left in Tables XI-XII. It is merely coincidental that some of the statutes among the Supplementary Laws should concern topics already treated, for from the Romans we must not remove the faculty of aftersight. [70] Some scholars seek to place this provision in Table VIII, where it seems properly to belong, despite its traditional position here. This dislocation, coupled with that of the preceding provision, well illustrates how hopeless is our reconstruction of the order of the regulations of the Twelve Tables. [71] That is, apparently, if a person with or without fraudulent intent had held and claimed as his a thing which a judicial court now decided belonged to another party. [72] Retention of the article is deemed to have brought the defendant some profit; therefore he must pay double this profit. [73] Cf. second paragraph in note [69] _supra_. [74] That is, the most recent law repeals all previous laws which are inconsistent with it. [75] Cicero says that many laws in the Twelve Tables exhibit this rule (_De Re Publica_, II. 31. 54). 
22746	----	THE COPY/SOUTH DOSSIER Issues in the economics, politics, and ideology of copyright in the global South Edited by Alan Story Colin Darch and Debora Halbert Researched and published by The Copy/South Research Group May 2006 This is marked as "Not Restricted by Copyright," which Project Gutenberg interprets as a grant to the public domain. Please see the RTF or PDF files for this eBook, which was downloaded in September 2007 from: http://www.copysouth.org 
31504	----	generously made available by The Internet Archive/Canadian Libraries) CONCERNING JUSTICE BY LUCILIUS A. EMERY NEW HAVEN: YALE UNIVERSITY PRESS LONDON: HUMPHREY MILFORD OXFORD UNIVERSITY PRESS MDCCCCXIV COPYRIGHT, 1914 BY YALE UNIVERSITY PRESS First printed August, 1914, 1000 copies TO MY CHILDREN HENRY CROSBY EMERY ANNE CROSBY EMERY ALLINSON THE ADDRESSES CONTAINED IN THIS BOOK WERE DELIVERED IN THE WILLIAM L. STORRS LECTURE SERIES, 1914, BEFORE THE LAW SCHOOL OF YALE UNIVERSITY, NEW HAVEN, CONNECTICUT. CONTENTS CHAPTER PAGE I. THE PROBLEM STATED. THEORIES AS TO THE SOURCE OF JUSTICE. DEFINITIONS OF JUSTICE 3 II. THE PROBLEM OF RIGHTS. DIFFERENT THEORIES AS TO THE SOURCE OF RIGHTS 31 III. THE PROBLEM OF RIGHTS CONTINUED. THE NEED OF LIBERTY OF ACTION FOR THE INDIVIDUAL 43 IV. JUSTICE THE EQUILIBRIUM BETWEEN THE FREEDOM OF THE INDIVIDUAL AND THE SAFETY OF SOCIETY 56 V. JUSTICE CAN BE SECURED ONLY THROUGH GOVERNMENTAL ACTION. THE BEST FORM OF GOVERNMENT 77 VI. THE NECESSITY OF CONSTITUTIONAL LIMITATIONS UPON THE POWERS OF THE GOVERNMENT. BILLS OF RIGHTS 95 VII. THE INTERPRETATION AND ENFORCEMENT OF CONSTITUTIONAL LIMITATIONS NECESSARILY A FUNCTION OF THE JUDICIARY 110 VIII. AN INDEPENDENT AND IMPARTIAL JUDICIARY ESSENTIAL FOR JUSTICE 121 IX. THE NECESSITY OF MAINTAINING UNDIMINISHED THE CONSTITUTIONAL LIMITATIONS AND THE POWER OF THE COURTS TO ENFORCE THEM.--CONCLUSION 146 CONCERNING JUSTICE CHAPTER I THE PROBLEM STATED. THEORIES AS TO THE SOURCE OF JUSTICE. DEFINITIONS OF JUSTICE For centuries now much has been written and proclaimed concerning justice and today the word seems to be more than ever upon the lips of men, more than ever used, but not always appositely, in arguments for proposed political action. Hence it may not be inappropriate to the time and occasion to venture, not answers to, but some observations upon the questions, what is justice, and how can it be secured. It was declared by the Roman jurist Ulpian, centuries ago, that students of law should also be students of justice. By way of prelude, however, and in the hope of accentuating the main question and presenting the subject more vividly by comparison and contrast, I would recall to your minds another and even more fundamental question asked twenty centuries ago in a judicial proceeding in distant Judea. It is related that when Jesus, upon his accusation before Pilate, claimed in defense that he had "come into the world to bear witness unto the truth," Pilate inquired of him "What is truth?"; but it is further related that when Pilate "had said this he went out again unto the Jews." Apparently he did not wait for an answer. Perhaps he repented of his question as soon as asked and went out to escape an answer. Men before and since Pilate have sought to avoid hearing the truth. Indeed, however grave the question, however essential the answer to their well-being, there does not seem to be even now on the part of the multitude an earnest desire for the truth. Their wishes and emotions cloud their vision and they are reluctant to have those clouds brushed aside lest the truth thus revealed be harsh and condemnatory. The truth often causes pain. As said by the Preacher, "He that increaseth knowledge increaseth sorrow." People generally give much the greater welcome and heed to him who tells them that their desires and schemes are righteous and can be realized, than to him who tells them that their desires are selfish or that their schemes are impracticable. It has always been the few who have sought the truth, resolute to find it and declare it, whether pleasant or unpleasant, in accord with the wishes of mankind or otherwise. Such men have sometimes suffered martyrdom in the past, and often incur hostility in the present, even when seeking that truth on which alone justice can securely rest. Nevertheless, so closely linked are truth and justice in the speech, if not the minds, of men, there should be some consideration of Pilate's question. Whether truth is absolute or only relative has been perhaps the most actively discussed topic in the field of philosophy for the last decade. Into this discussion, however, we need not enter, for such discussion is really over the problem of determining the proper criterion of truth. Wherever be this criterion, whether in some quality of inherent rationality or in some utilitarian test of practicability, the truth itself has some attributes so far unquestioned and of which we may feel certain as being inherent, necessary, and self-evident. Truth is uncompromising. It is unadaptable; all else must be adapted to it. It is not a matter of convention among men, is not established even by their unanimous assent, and it does not change with changes of opinion. It is identical throughout time and space. If it be true now that since creation the earth has swung in an orbit round the sun, it was true before the birth of Copernicus and Galileo. If it be true now that the sum of the three angles of a triangle is equal to the sum of two right angles, it was always true and always will be true, true at the poles and at the equator, true among all peoples and in all countries, true alike in monarchies, oligarchies, and democracies. Truth is also single. There are no different kinds of truth, though there may be innumerable kinds of propositions of which truth may or may not be predicated. Whichever criterion the philosophers may finally agree upon, it will hold in all propositions alike. The truth of a proposition in mathematics is the same as the truth of a proposition in any other science, physical, social, political, or theological. It can be no more nor less true in each and all. Again, in every science, social and political as well as others, and as to every proposition in any science, the truth is to be discovered, not assumed by mere convention; and men must discover it and discover it fully at their peril. Failure even after the utmost effort will not be forgiven. If the truth be found it will be a sure guide in life. If it be not found the lives of men will so far go awry. That it may be difficult to find, that we may never be sure we have found it, makes no difference. Are there any attributes of justice of which we can speak so confidently as being necessary, inherent, and self-evident? That justice ranks next to truth, if not with it, seems to have been, and to be, the general judgment of mankind. It has engaged the thought and fired the imagination of the greatest minds. A few quotations from such, ranging from ancient to modern times, will illustrate this. The Hebrew Psalmist gloried that "justice and judgment" were the habitation of Jehovah's throne. Aristotle wrote, "political science is the most excellent of all the arts and sciences, and the end sought for in political science is the greatest good for man, which is justice, for justice is the interest of all." Early in the 12th century the jurist Irnerius, distinguished for his learning and for his zeal in promoting the revival of the study of law and jurisprudence, and also as the reputed founder of the famous Law School at Bologna, imaged justice as "clothed with dignity ineffable, shining with reason and equity, and supported by Religion, Loyalty, Charity, Retribution, Reverence, and Truth." Six centuries later Addison, famed as a clear thinker and writer, thus wrote of justice: "There is no virtue so truly great and godlike as justice.... Omniscience and omnipotence are requisites for the full exercise of it." Almost in our own time Daniel Webster, called in his day the great expounder and even now reckoned among the greatest of men intellectually, in his eulogy upon Justice Story thus apostrophized justice: "Justice is the great interest of man on earth. It is the ligament which holds civilized beings and civilized nations together. Wherever her temple stands and so long as it is duly honored, there is a foundation for social security, general happiness, and the improvement and progress of our race." Perhaps, however, none of these laudations is so vividly impressive as is the pithy remark of an old English judge that "injustice cuts to the bone." But what is this justice, declared to be so great a virtue, so ineffable, so supremely important? I have said we feel certain of some attributes of truth. Do we know or can we know anything certain about justice? Is it something above and apart from the will of men, or is it simply a matter of convention among men? Is it immutable, or does its nature change with changing times and conditions? If mutable, does it change of itself or do men change it? Is it universal or local, the same everywhere or is it different in different localities? Is it the same for all men and races of men or does it differ according to classes and races? Again, is it single or diverse in its nature? Is there more than one kind of justice? We hear of natural justice, social justice, industrial justice, political justice. What do they who use those terms mean by them? Do nature, society, industry, politics, each have a different criterion? Still again, and briefly, is justice an inexorable law like the law of gravitation or can its operation have exceptions? Is it simply a quality of action or conduct, or, as stated by Ulpian, is it a disposition or state of mind? Finally, is it a reality or, as Falstaff said of honor, is it after all "a word," "a mere scutcheon?" I am not so presumptuous as to venture an answer to any of these questions except perhaps the last. As to that, I appeal to our consciousness, to our innate conviction that there does exist something, some virtue, some sentiment, however undefinable in terms, holding men together in society despite their natural selfishness, and without which they would fall apart. It is this virtue, this ligament of society, that we call justice. We feel that the word is not a mere word, but that it connotes a vital reality in human relationship. If this reality be ignored, men cannot be held together in any society. If justice be the greatest good, as so generally asserted, then its negative, or injustice, must be the greatest evil. Hence error in men's opinions of what is justice will work that greatest evil. Society as a whole is liable to error in respect to justice; has often been mistaken in the past and may be mistaken today. The individuals composing society are seldom, if ever, wholly disinterested and dispassionate in their judgments. Each individual is prone to believe that what is apparently good for himself or his group or class, is in accord with justice. Himself persuaded that he is battling for justice, he does not see that he may be battling only for some advantage over others, for some individual relief from common burdens, for some privilege not to be accorded to others; does not see that what he is battling for may cause injustice to others. Through ignorance of the real nature of justice, the grant to one of his plea for what he calls justice may work grievous injustice to others. So when altruists, warm with sympathy, obtain the enactment of laws intended for the betterment of the less fortunate, they may at times do injustice to others and even to those they hoped to benefit. History records many instances where laws intended to insure justice had the contrary effect. Many a statute designed to prevent oppression has itself proved oppressive in operation. Many a theory of justice has been found to work injustice. A conspicuous and familiar instance is found in the history of the French Revolution. The Jacobins believed that their theories if given effect would usher in the reign of justice in France. They obtained power and exploited their theories only to bring in the Reign of Terror, that reign of terrible injustice. As mistakes and grievous mistakes have been made in the past as to what is justice, so they will be made now and in the future, and can be lessened only by greater wisdom and forethought, by greater effort to consider justice apart by itself, with philosophical detachment, with minds unclouded by pity, sympathy, charity, and other like virtues, on the one hand, or by envy, hate, prejudice, and like evil sentiments, on the other. True, men are more enlightened now and education is more general, but society is more complex, with more diverse and conflicting interests, than formerly. The social mechanism is now so intricate that even a slight disturbance in one part may disarrange the whole. Injustice to one may injure the many. Hence the duty of ascertaining as completely as possible the real nature of justice is as imperative today as ever. As declared by Ulpian, this duty is especially incumbent upon those who have to do with the framing or administration of the laws, since justice can be enforced only by law. In any inquiry into the nature of justice we get little help from the wisdom of the ancients. They wrestled with the question but seem to have been as puzzled as we of today. Indeed, Plato represents the sage Socrates as frankly confessing his inability to answer satisfactorily the persistent question "What is justice?" The question comes up for discussion by Socrates and some friends at the home of Cephalus at the Piræus. Socrates criticizes and punctures the definitions advanced by the others until Thrasymachus, apparently with some heat, challenges Socrates to give an answer of his own to the question "what is justice?" and not to content himself, nor to consume time, with merely refuting others. After some further discussion of various aspects of the question, Socrates finally says, "I have gone from one subject to another without having discovered what I sought at first, the nature of justice. I left the inquiry and turned away to consider whether justice is virtue and wisdom, or evil and folly, and when there arose a further question about the comparative advantages of justice and injustice I could not refrain from passing on to that. The result of the whole discussion has been that I know nothing at all. I know not what justice is and therefore am not likely to know whether or not it is a virtue, nor can I say whether the just man is happy or unhappy." Granting that the confession may have been intended ironically, the further discussion did not result in any practical solution, even if in one possible in Plato's ideal, but impossible, state. Indeed, the inquiry is not yet closed and will not be until the millennium. Still, upon a question so old, so important, so persistent, so ingrained in human society, and even now receiving such diverse and conflicting answers, a brief consideration of the earlier beliefs and theories may not be useless. As said by Bishop Stubbs, the historian, "The roots of the present lie deep in the past and nothing in the past is dead to him who would learn how the present came to be what it is." The roots should be examined by him who would understand the tree. In Homer we get a glimpse of a theory of his time, to wit, that each separate decision given by the magistrate in any litigated controversy was furnished to him by Zeus specially for that case. The Greek word for such a decision was _themis_, and it was supposed that somewhere in the Pantheon was a corresponding deity whose special function was to furnish the appropriate themis for each case. This deity was shadowily personified as the goddess Themis, the daughter of heaven and earth, the companion and counselor of Zeus. It was she who summoned gods and men to council and presided unseen over their deliberations. Hence she came to be regarded as also the spirit of order without which the Greek philosophers, notably Plato, held there could be no justice. This theory that justice and even the laws were but the will of deity, revealed in various ways, was long generally accepted. In Rome, in the time of the kings, the king was the Pontifex Maximus, and as such, with the help of the College of Priests, declared the laws and decided lawsuits. For some time also under the Republic, when a vote was to be taken in the Comitia upon a proposed law, the question was thus put: "Is this your pleasure, O Quirites, and do you hold it to be the will of the gods?" Under the Empire, despite the reasoning of many philosophers and lawyers that the Emperor derived from the people his power to make laws and declare the law in any given case, he assumed and was assumed to have derived the power and inspiration solely from the gods. The early Christian Church also preached the doctrine that the ruling power in the state, however established, was ordained of God and as such was entitled to the obedience of the pious. This belief that justice and judgment were simply the will of God, to be ascertained, not by reason but by other means, was so general and deep that such crude devices as trials by ordeal and battle were often resorted to for determining guilt or innocence and other questions of fact. Indeed, resort to such expedients for determining questions of law, as well as questions of fact, was not unknown. In the tenth century under the Saxon King Otto a question arose whether upon the death of their grandfather his grandchildren by a prior deceased son should share in the inheritance along with their surviving uncles. The king ordered a trial by battle, which being had, the champions for the grandchildren were the victors. It was therefore held to be the divine will that grandchildren by a prior deceased child should inherit direct from their grandfather. I may here remind you that trial by battle was not formally abolished in England until well into the 19th century. And there is even now professed a belief that the will of God can be ascertained by counting ballots. "Vox Populi Vox Dei" is still a shibboleth. But the doctrine that justice is heaven born, superior to and controlling the opinions and wills of men, did not escape challenge even in ancient times. Those sects of philosophers known as Epicureans and Sophists, consistently with their theory of the nature of virtue in general, maintained that justice was merely a name for such conventions among men as they should adjudge best for their own utility and happiness. The most vigorous champion of this latter theory appears to have been one Carneades, a Greek philosopher of the second century B.C., said to have been the founder of the third Academy and expounder of the philosophy of probabilities and to have possessed the acutest mind of antiquity. In a course of lectures at Rome he stated the arguments for the orthodox view of justice and then boldly assumed to answer them and demonstrate that justice was not a virtue at all as virtue was defined by the philosophers, but was merely a convention; was what men should agree to be a sound basis for the maintenance of civil society, and hence that it varied with times, places, circumstances, and even opinions. This argument evidently had much effect upon public opinion, for Cato urged in the Senate that Carneades be banished because dangerous to the state. So great was the influence of Carneades that a century later Cicero, a disciple of the Stoic school of philosophy, thought it necessary to refute him specifically as the chief heretic, and to uphold the orthodox theory against his arguments. Cicero denounced with eloquent warmth the doctrine that utility was the foundation of justice. He declared that, not utility, but nature, was the source of justice, that justice was a principle of nature, the ultimate principle behind all law. To abridge the familiar quotation from his "De Republica," "There is a law which is the same as true reason, accordant with nature, a law which is constant and eternal, which calls and commands to duty, which warns and terrifies men from the practice of deceit. This law is not one thing at Rome, another at Athens, but is eternal and immutable, the expression and command of Deity." In his treatise "De Legibus" he declared that men are born to justice; that right is established not by opinion but by nature; that all civil law is but the expression or application of this eternal law of nature; that the people or the prince may make laws but these have not the true character of law unless they be derived from the ultimate law; that the source and foundation of right law must be looked for in that supreme law which came into being ages before any state was formed. This theory of the Stoics so eloquently urged by Cicero was practically the _jus naturale_ of the Roman jurists of classical times, though more moderately expressed by them. It does not seem to have been wholly academic, but to have been actually applied at times. In his history of Rome, Mommsen relates that even during the nearly absolute sway of Sulla, after the fall of Marius, the Cornelian Laws enacted to deprive various Italian communities of their Roman franchise were ignored in judicial proceedings as null and void; also that, contrary to Sulla's decree, the jurists held that the franchise of citizenship was not forfeited by capture and sale into slavery during the civil war with Marius. Later, when the church became a power in the state there are instances where laws adjudged to be contrary to the laws of God were refused effect. In England as late as the middle of the 17th century Chief Justice Hobart, a judge of high repute, asserted that "even an act of Parliament made against natural equity, as to make a man judge in his own case, is void in itself for the laws of nature are immutable and they are the laws of laws." In the 18th century Blackstone assented to the doctrine of a _jus naturale_ and wrote of it: "This law of nature being coeval with mankind and dictated by God himself is of course superior in obligation to any other.... No human laws are of any validity if contrary to this, and such of them as are valid derive all their force and all their authority, mediately or immediately, from this original." True, Blackstone combated the doctrine that duly enacted statutes were to be held void if the judges thought them contrary to reason, but he admitted that that extreme doctrine was more generally held. In this country the doctrine of a higher law than the Constitution even, and to be obeyed rather than the Constitution and laws enacted in accordance therewith, has had and even now has earnest advocates. But the contrary doctrine of Carneades and the Sophists would not down. After Cicero and the civilians, after Hobart and Blackstone, came our modern utilitarians, or sophists, Bentham, Mill, Austin, and others, who have vigorously maintained with weighty arguments the utilitarian theory of justice; and that theory is now generally accepted by lawyers and statesmen as at least the most workable theory in human affairs. There still exists, however, in the minds of many the belief that above and behind all the turmoil and strife of politics, all the flux and reflux of social movements and public sentiment, the confusion of enactments, amendments, and repeals of statutes, the swaying of judicial opinion, there is some law of nature or in nature, some criterion, which if ascertained and obeyed would be perfect justice. This question of the origin, the foundation of justice, whether it be of God or of men, seems to have been much more debated than the question what is the nature of justice whatever its origin or foundation. Yet some attempts, other than those attributed to Socrates, have been made of old to give a definition of justice. The earliest description I have found is that of the early Pythagoreans, who, in accordance with their practise of symbolizing the virtues by geometrical figures, designated justice by the square, and the just man by the cube. Plato seems to have had a theory of justice when he wrote in the "Gorgias," "Nature herself intimates that it is just for the better to have more than the worse, the stronger than the weaker, and in many ways she shows that among men as well as among animals justice consists in the superior ruling over and having more than the inferior." In these days our first impulse may be to denounce Plato's statement as altogether wrong if not worse. We should remember, however, that Plato was not considering any altruistic virtue such as kindness, sympathy, benevolence, generosity and the like, but only what nature indicates to be the essential condition of successful association. Thus interpreted, are we prepared to confute the statement? Do we know of any state of society in human or animal life at any time, past or present, of which the contrary of Plato's statement is true? But passing over all other attempts of the ancients to define justice, none of which seems to have been much regarded by contemporary opinion, I will only cite the most famous, that by Ulpian, the renowned jurist of the best period of Roman jurisprudence, whose writings were most drawn upon by the learned compilers of the Institutes and Digest of Justinian; viz., "Justitia est constans et perpetua voluntas jus suum cuique tribuendi," or "Justice is the constant and perpetual will to render to every one his right." This definition was adopted by the compilers as correct and made the introduction to the Institutes. It thus received the imperial sanction and was quoted wherever the law of Rome prevailed, down through medieval times and later, almost as if it were an inspired or at least authoritative definition not to be questioned. But notwithstanding the acclaim with which this definition was hailed, I question that it was any improvement on that of Aristotle, who tersely defined justice as "that virtue of the soul which is distributive according to desert." Indeed, I think Aristotle was nearer the mark. Upon the revival of the study of law and jurisprudence in the 11th and 12th centuries several of the more famous jurists of that time, Azo, Irnerius, Placentinus and others, essayed definitions of justice, but they do not seem to have improved upon Ulpian. Their definitions were vitiated by theological assumptions and none of them has become a text for commentators or students. Neither in modern times has any definition of justice been suggested which has received such universal assent as did that of Ulpian in his time and for centuries afterward. We may therefore return to Ulpian's definition as our point of departure, since his definition is substantially that suggested earlier by Aristotle, and observations on the later will also apply in many respects to the earlier. Ulpian's definition is elegant in style, but it does not carry us very far in our inquiry. We are told indeed that justice is a state or disposition of the mind, the disposition to render to everyone his right or, as put by Aristotle, is the disposition to distribute according to desert. It was this statement that captured the medieval jurists and which they made their text, but it is now regarded as incomplete and even inaccurate. One may have the disposition, the desire, the will, to render to every one his right, but unless he can know what is his fellow's right he may unwittingly fail to accord it to him and thus unwittingly do injustice. It evidently is not enough to have the disposition or will; hence the definition is incomplete, and any definition is incomplete which does not furnish a criterion for determining what is the given man's right. But the definition as far as it does go is not strictly accurate. The man of malevolent disposition who would wrong his fellow if he dared, may yet, to avoid unpleasant consequences to himself, render fully to every other man his right. It would seem, therefore, that justice is an attribute or quality of conduct rather than a disposition or state of mind, and of conduct toward others rather than of conduct toward one's self. It is only of the conduct of men in their relations to other men that we can predicate justice or injustice. One's conduct may result in good or evil to himself and so be wise or unwise, but assuming, what probably is never the fact, that it affects only himself, in no way affects any other, his conduct is neither just nor unjust. Robinson Crusoe, until the arrival of the man Friday, had no occasion to consider our problem. But, admitting that each man's conduct, whether active or passive, does affect some other person, what is the criterion by which to determine the justice or injustice of that conduct? It is not enough to say that if the conduct in any degree impedes the other person in the enjoyment of any of his rights it is unjust, otherwise not; for then the question comes to the front, what is the right of that other in the given case? Indeed, this latter question is the crux of the problem of justice. The derivation of the word "justice" also shows this. The Latin _justitia_ or _justitium_ according to some scholars is compounded of _jus_, right, and _sisto_ or _steti_, to place, or to cause to stand, and hence the whole word may be held to signify the maintenance of _jus_ or right. With the question of _jus_ or right correctly answered, the problem of justice is practically solved. The right of the one being known, the effect of any particular conduct of another on that right, and consequently its justice or injustice, is determinable with comparative ease. Hence to make progress in our inquiry we must consider the problem of rights, for we almost instinctively accept as correct so much of Ulpian's definition as implies that justice is to be predicated of the act of rendering to everyone his right. We instinctively feel that if we render to another his full right we do him full justice, and that if we ourselves are deprived of any right we suffer injustice. What is his or our right is therefore the real question. This will be our next subject for consideration. CHAPTER II THE PROBLEM OF RIGHTS. DIFFERENT THEORIES AS TO THE SOURCE OF RIGHTS The problem of Rights is also centuries old. There have been in later years glowing tributes to human rights even more than to justice, though the sentiment of rights is egoistic, while that of justice is in some measure altruistic. There have also been diverse opinions in the past, as now, as to the source, foundation, and nature of what are called Rights, as there were and are of justice. A brief review of these opinions and of the changes in them may present the problem more vividly. In patriarchal times there could be no political questions about rights. The head of the family was supreme and sole ruler and judge. Even in Rome under an organized civil government the pater familias was long left the power of life and death over the members of his family. When families and tribes were combined in states, government was long conducted on the theory that as the individual had belonged to the family or tribe into which he was born or adopted, so he now belonged to the state, to be directed and disposed of as the state might order. What he might enjoy of life, liberty, or property was the gift of the state, subject to revocation at will. Plato reflects this theory in making Hippias declare that the measure of man's right is what the state commands. The total abolition of the liberty of innocent persons by holding them in slavery was not deemed any infringement of any right of theirs. This theory was acted upon in democratic as well as in monarchical states. Slavery was as lawful in Athens, Sparta, and republican Rome as in Persia or Egypt. True, there were rebellions and revolutions at times, but, though sometimes provoked by oppression, they were usually to acquire the power of government and not in defense of individual rights. The Plebeians revolted to obtain a greater share in the governing power. The civil wars of Marius and Sulla were not waged for liberty but for power. In Sicily, where the slaves under Eunus had for a time wrested the governing power from their masters, they did not hesitate to enslave in turn. The doctrine that the individual man has some rights by nature which the state ought not to disregard had no place in ancient nor medieval governments. The English Magna Charta purports to be a grant from the king and, though framed by the barons and forced upon the king, it contains no assertion of rights by nature. The rights claimed were claimed as accustomed rights previously conferred and enjoyed, such as the laws and customs of the time of Henry I. Apart from provisions as to improved methods of administration, the language of the Charter implies restoration rather than revolution. So in the Petition of Right in the reign of Charles I, no appeal was made to natural rights, but the demand was for accustomed privileges, for the observance by the king of the old laws and customs of the realm, especially those in force under Edward I and Edward III. In the Petition, the Charter of King John is cited, not as a schedule of the rights of man in the abstract, but as "The Great Charter of the Liberties of England," implying that the liberties therein named were not the natural heritage of men in general but the peculiar heritage of Englishmen, under English law. The prayer of the Petition is simply that the king shall accord the people of England "their rights and liberties according to the laws and statutes of the realm." So in the Bill of Rights framed by Parliament and approved by William and Mary upon their accession to the throne, it was not asserted that the acts of James II complained of were contrary to any natural right of the subject, but that they "were utterly and directly contrary to the known laws and statutes and freedom of this realm." The purpose of the Bill of Rights was declared by the Parliament in behalf of the people to be "for the vindicating and asserting their ancient rights and liberties." In the earlier remonstrances of the legislatures of the English colonies in America against various acts of the king and Parliament, only the accustomed rights of Englishmen were claimed to be violated. The colonists, at first, claimed as against king and Parliament no rights not accorded to Englishmen in England. But though the notion that man has rights by nature, not granted by the state and which the state should respect as such, did not for centuries find expression in state papers or state action, it was by no means non-existent. It was early in the minds of many and found some expression in the writings of jurists and philosophers. In Rome it was a corollary of the doctrine of the existence of a _jus naturale_. The statement of that doctrine by Ulpian incorporated in the Digest implies a doctrine that man does have some rights anterior to and independent of the state. So far, however, as the statement was susceptible of that construction it was not generally acted upon and remained practically a dead letter. The doctrine itself survived, however, engaging the attention and receiving the support of various writers. It gradually gained ground among students of politics and spread rapidly after the Protestant Reformation, so-called, because of the impetus given by that event to the exercise of private judgment. As early as the 17th century, though finding little or no expression in the Petition of Right or Bill of Rights, the doctrine that individual rights were derived from nature rather than from the state was generally entertained by the Puritans and other dissenters from the Established Church, and was invoked by them to some extent as justifying the revolution of 1640. The doctrine also passed over to the Puritan Colonies in America and early found some expression there. In the Massachusetts "Body of Liberties" of 1641 there is a suggestion that the liberties, etc., therein recited, were those demanded by "humanity, civility and christianity" rather than "accustomed" liberties. It was further asserted that these liberties were to be enjoyed by the people of the Colony and their posterity forever. The later disputes as to the proper limits of the power of the British King and Parliament over the American Colonies led the colonial lawyers and politicians to a study of the theory of natural rights advanced by various political writers, English and Continental. It has been said, I think with truth, that the writings of Locke, Voltaire, Rousseau, Montesquieu, and even of Blackstone, were more widely read and studied in America than in Europe. The brilliant writings of Tom Paine also had great influence. The result was that the doctrine of natural rights came to be generally accepted by the people of the Colonies as the real foundation of their claims and the real justification for their resistance to the objectionable acts of the King and Parliament. In 1774 the first Continental Congress in its Declaration of Rights declared that the people of the Colonies had those rights by "the immutable laws of nature" as well as by their charters and the principles of the English Constitution. Two years later in the Declaration of Independence the representatives of the people made no reference to their charters nor to the principles of the English Constitution as the foundation of their claims, but based them exclusively on the theory of natural rights. They declared: "We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty and the pursuit of happiness." The same influences undoubtedly contributed to bring about the French Revolution of 1789, and the theory of natural rights again found expression in the French state papers of that period. In August of that year, in the early stages of the Revolution, the following "Declaration of the Rights of Man and Citizen" was put forth by the National Assembly and afterwards made the first two articles of the Constitution of 1791, viz., "Art. 1. Men are born and remain free and equal in rights. Social distinctions can be based only upon public utility. Art. 2. The aim of every political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security and resistance to oppression." Thus in the latter part of the 18th century the doctrine that man has some individual rights by nature, not by grant or prescription, and not alienable, obtained official recognition in two great nations. It has since been formally and officially iterated in the Constitutions of many American States and has been proclaimed and invoked as an impregnably established political truth. Nevertheless the doctrine is only a theory, not yet demonstrated nor undoubted. It has been assailed and in the opinion of many refuted, by Bentham, Mill, and other utilitarian writers, the successors of Epicurus, Carneades and the Sophists. Even in France and America it is now repudiated by many and declared to be an obstacle to social and political improvement. Still, despite the vigorous arguments against the doctrine, there remains the innate feeling and a general belief that society abridges individual rights instead of conferring them. In support of this notion may be cited the fact that the statutes of any state or nation are almost wholly restrictive or compulsory in character, and rarely, if ever, permissive. From the Decalogue down, the language of the law has been compulsive, "Thou shalt" and "Thou shalt not"; and men generally act upon the theory that what society does not forbid by statute or custom the individual may do. In passing now from the region of theory, of speculative opinion, to what seems to me the region of facts, of actual conditions, of actual traits of human nature, I wish it to be understood distinctly that in what I may say about rights I am considering only the precepts of justice, and that I differentiate those precepts from the precepts of religion, charity, philanthropy, benevolence, and other similar virtues, and even those of what is loosely called humanity. If it be true as asserted by Addison that justice is the greatest and most godlike of the virtues, it does not follow that the just man, to be just, must possess all or any of the other virtues. One can be just without being religious, charitable, or philanthropic, and even without earning the reputation of being humane. I wish further to premise that I am considering our subject only with reference to those who have grown to the age of self-maintenance and consequent freedom. I do not take into account the rights of children under that age. With these premises borne in mind, I would now in the next chapter call attention to some propositions of fact, which I shall assume to be established by science and history and by the reader's own experience and observation, and which I think bear more or less directly on our subject. CHAPTER III THE PROBLEM OF RIGHTS CONTINUED. THE NEED OF LIBERTY OF ACTION FOR THE INDIVIDUAL Men are endowed by nature with sundry powers, faculties, capacities, physical and mental. These, however, are not at all uniform, but are diverse in kind and degree in different races of men and in different individuals of the same race. Nature seems to work through diversity rather than through uniformity, indeed through inequality rather than through equality. Not all men are born poets, nor are all poets equally good poets. Not all men are by nature adapted for intellectual pursuits, and those who are so adapted are not in that respect equally favored by nature. Even in the field of the simplest manual labor there is great diversity of natural capacity. It seems to be nature's theory that mankind, the human race as a whole, will be better served by diversities, by differences in kinds and degrees of powers, than by uniformity and equality. Further, normal men are also by nature endowed, if not with rights, yet with sundry instincts, desires, passions; also with sundry feelings, emotions, sentiments; and also with some degree of reason and power of choice. Some of these may not be apparent in infancy, but they appear in a greater or less degree of intensity as the individual develops. Among these instincts or desires is the desire to live, the desire to serve each his own welfare and that of his offspring, and the desire to decide for himself what will best serve that welfare. As a corollary, he also has by birth the desire for freedom to exercise any and all of his talents and powers in such manner, to such extent, and in pursuit of such objects as he prefers, or to be idle if he prefers idleness. Further, he has the instinct of acquisitiveness, the desire to appropriate to himself and retain control of such material objects as he thinks may serve his welfare and that of his offspring, and especially does he have a natural instinct and desire to possess and control exclusively for himself whatever, much or little, he has wrenched from nature or otherwise obtained by the exercise of his various powers. This instinct is also observable in some animals. A dog will hide a bone for his own exclusive future use. Man also instinctively claims for his own the natural increase of what he has acquired, the young of his beasts, the fruits of his orchard. This desire for control includes the desire to store up, to use, to consume, to transfer, and even to destroy at will. This desire is seen in young children, who will try to clutch and hold whatever attracts them, and who will hoard or break toys or throw them away as their whims may be. As they get older the desire to control grows stronger, for they destroy less and preserve more in order to have greater measure of control; but still they desire freedom to consume or destroy at their own will. So strong is this desire of control that men wish to direct what shall be done with their property after their death. If one is balked or hindered in the gratification of any of these desires, there is excited in him a feeling of resentment against the cause, even if it be only some force of nature. There is a note of anger in the cries of a child over interference with his play, the deprivation of any toy or other thing he may have or desire. That the wind or the rain was the cause does not sooth him. In the mature man also, anger adds some force to the kick he gives even inanimate objects unexpectedly impeding him. Who of us has ever fallen over a chair in the dark without mentally, at least, consigning it to perdition? The old law of Deodand was an expression of this feeling of resentment against inanimate objects even. By that law, according to Blackstone, whatever chattel was the immediate cause of the death of a reasonable creature was forfeited to the crown, as when a cart ran over a man. By the laws of Draco whatever caused a man's death by falling upon him was to be destroyed or cast out of the community. Thus a statue having fallen upon a man, it was thrown into the sea. The Mosaic law savagely declared: "If an ox gore a man that he die, the ox shall be stoned and his flesh shall not be eaten." Is not this instinctive feeling of resentment at interference with one's person, liberty, or property, the rudiment of a later developed idea, or sentiment, of rights possessed? Resentment is felt only when one is deprived of something he feels he is entitled to. Granting that nature has not endowed man with rights, it has imbued him with a belief that he has rights, and also with a disposition to defend them. Man is also born into a material world of natural forces, and hence to gratify his desire to live and serve his own welfare and that of his offspring, he must adapt himself to his environment, fit himself to withstand heat and cold, provide himself with food and shelter. He not only desires to, but he must, exercise his powers of mind and body and hence should be free to exercise them to that extent at least. Nature does not feed, clothe and shelter man. It only provides the raw material which man must himself find, take, and convert by his labor, manual and intellectual, into food, clothing, shelter, and whatever else he desires. But man is also born into association with other men, into some sort of social organization, and well for him that he is. It is not society, however ill organized, that has caused, or today causes, poverty. That is the primitive condition of the human race. It is only through some social organization ensuring to man freedom for his labor and security for his savings that he can escape poverty. If each individual by his own unaided efforts had to find the raw material, mold it to serve his needs and desires, and also defend it from attacks by others, his life would be one of dire poverty, scarcely above that of the higher animals. Further, nature has so formed man that he not only needs but desires association with other men. Children instinctively flock together for common play, and this social instinct continues through life and extends to work as well as play. We find men everywhere in the civilized world voluntarily entering into associations for various purposes thought by the members to be of service to themselves or others. But there is over and surrounding these associations that larger association, racial or territorial, which we call society. This is the necessary association into which man is born and in which he must live if he desires other than mere animal life. This society must be maintained if the race of men, as men and not as mere animals, is to continue. Indeed, society itself has a sort of instinct for self-preservation. It is not a mere aggregation of individual units but is an association of sentient correlated beings with a resultant life and movement of its own. Association, however, does not extinguish nor appreciably lessen the natural instincts, desires, feelings, sentiments, etc., of the individual, though they may be made less active by continued restraint. Association even extends the scope of man's individual desires and activities. He now desires freedom to make arrangements with other men of such nature and for such purposes as he and they may agree upon. If he is prevented by authority from making such arrangements he feels some resentment, feels that his right is infringed. He also comes to desire that those who have entered into arrangements or contracts with him should perform their part, and he instinctively feels resentment at their neglect or refusal to do so. He feels that he has a right to the performance of the contract. Another desire is developed or given play by society,--the desire to equal one's fellows in the race for benefits, and, that accomplished, to excel them. He desires to win in every game, to be the victor in every contest of physical or mental powers, and in business as well as in sports. If he is held back he feels resentment against the power assuming to restrain him. He thus feels he has a right to equal and to excel if he can. Whether competition should be enforced or stimulated by society is a question in economics. What affects the question of rights and hence of justice is whether this desire to excel should be impeded. In this association, however, each individual man finds himself in close contact all through life with other men having like instincts, desires, feelings, emotions, etc., as his own; and who also feel like resentments and have like notions of rights possessed. If each is left by society free to gratify these desires or to enforce his claims of rights in his own way unmindful how his action may affect others; if they be left free to "take who have the power" and only they may "keep who can," society could not exist and civilization, if not the race, would perish. Society, therefore, must frame and enforce rules for the regulation and control of the conduct of its individual members, must even restrain them to some extent from the gratification of some of their desires. On the other hand, these instincts, desires, etc., must still be reckoned with. They cannot be wholly suppressed nor even very much reduced or impeded if society is to progress or even exist. There must be left to the individual some degree of liberty of choice and action. An eminent American jurist, James C. Carter, vividly stated this, though perhaps in the extreme, when he wrote that the sole function of law and legislation is to secure to each individual the utmost liberty which he can enjoy consistently with the preservation of the like liberty to all others. "Liberty (he wrote), the first of blessings, the aspiration of every human soul, is the supreme object. Every abridgment of it demands an excuse, and the only good excuse is the necessity of preserving it." (Carter's "Law. Its origin and growth," page 337.) There must also be left to the individual some personal motives for labor and thrift, for, after all, it is the toil of individuals that supports society and its members. It is the surplus products, not consumed, but stored up by the economy of individuals that constitutes the energy of society. However it may be improved in the future, the nature of the average man today is such that he will not toil and deny himself without prospect of rewards to accrue to himself for his own personal use. He will not strive to earn and then conserve his earnings unless he can have them for his own, to control, use and dispose of at his pleasure. However it may be with a few unselfish, devoted souls, men as a rule are not yet so altruistic as to devote themselves exclusively to the good of others, of society. I think it evident that if the impelling natural desire to serve one's self be wholly or even largely disregarded by society, little would be produced or saved by voluntary labor and self-denial. The alternative would be the restoration of some system of enforced labor, of slavery, for the vast majority of men. At this day, after centuries of exhortation to practise the virtues of benevolence, of brotherly love, of self-sacrifice for the good of others, men do not from pure love of humanity voluntarily endure heat and cold, expend their labor and savings in working mines, in braving seas, in building and operating factories, railroads and steamships, in growing corn and cotton. Even those public offices, in which the altruist might find the best opportunities for serving the people, are not much sought for unless some personal honor or pecuniary profit be attached to them. Should society decree that the laborer, whether with hands or brain, should have no individual reward proportionate to the efficiency of his labor, but only his numerical proportion of the product of all laborers, I fear the efficiency of all classes of laborers, manual and mental, would fall to the "irreducible minimum." The foregoing statements and inferences lead to the question, how far should society go in undertaking to regulate the conduct and restrict the freedom of the individual,--that freedom which would be his if he were alone in the world? It may be thought that this is a question of expediency for economists and sociologists, and so it is largely, but it is also a question of rights and hence of justice, since every action or non-action of society affects the freedom of the individual in the gratification of his desires or, in other words, in his pursuit of happiness. CHAPTER IV JUSTICE THE EQUILIBRIUM BETWEEN THE FREEDOM OF THE INDIVIDUAL AND THE SAFETY OF SOCIETY The question stated at the close of the last chapter is most important and, in a sense, is perhaps the crux of the whole matter. Not only may error in the solution of the question injuriously affect the material interests of individuals and hence of society as a whole, but it may cause unhappiness far greater than that caused by any material loss, viz., a sense of injustice. As said by the English judge, "Injustice cuts to the bone." At the outset I accept Herbert Spencer's theory that the idea of justice contains two sentiments, positive and negative; the one the sentiment of the individual that he has the right by nature to the unimpeded use of his faculties and to the benefits he acquires by such use; the other the consciousness that the presence of other individuals with similar claims of rights necessitates some limitation of his own claims. Out of those two sentiments is evolved, I think, the idea of justice or injustice according as they are or are not in equilibrium. They suggest the definition that justice is the equilibrium between the full freedom of the individual and the restrictions thereon necessary for the safety of society. The restraint of personal conduct within too narrow limits, the necessity of which cannot be made clear, excites resentment, stimulates angry passions, and hence causes unhappiness through a sense of injustice. Restraint within necessary limits only, the necessity of which can be seen, arouses no resentment; on the contrary, it satisfies the individual, favors harmonious cooperation, profits society and increases the happiness of its members, through the appreciation of that necessity. But for the fixing of the boundary line between necessary and unnecessary restraints upon personal conduct, some other matters still are to be considered. I have said that man instinctively feels resentment at interference with whatever he may think is his right to do, or get, or keep. If this interference is from any of his fellow men his resentment is greater than when it is from natural forces. There arises the desire for vengeance, the desire to "get even,"--to use a common phrase,--by inflicting a corresponding injury on the offender. An eye for an eye, a tooth for a tooth, is instinctively demanded now as of old. If unable to inflict a corresponding injury there is the desire to inflict an equivalent injury. To paraphrase Bacon, revenge is justice running wild. This instinct should be heeded by society. If it be necessary for its own preservation that society restrain this instinct, prohibit private vengeance, then it must itself provide for satisfaction of the instinct; the offender must be compelled to make full compensation or else be made to suffer in turn some deprivation of rights claimed by him that shall be commensurate with the offense. This should be done speedily and gratuitously so far as possible. Delay and expense cause resentment in the suitor for justice and so cause injustice. In doing this, society not only protects itself but it restores an equilibrium of rights disturbed by the offender. This restoration of equilibrium is an essential element in the concept of justice. Of course, as society progresses and human nature improves, this desire of the injured for vengeance on the offender becomes weaker. The virtues of mercy, forgiveness, or willingness to forego the demand for punishment, come into play and society is allowed to attempt to reform rather than to punish, or is allowed to pardon altogether. These virtues, however, are not part of the concept of justice. If the punishment seems inadequate, or the pardon seems undeserved, there remains, or is again excited, the feeling of resentment. The equilibrium is not restored. Another sentiment or feeling is to be reckoned with in order to secure this equilibrium in society. The young, untrained child is impatient of all restraint. It is only by experience that he learns he must submit to restraint if he would have any sort of association with his fellows. He learns that he must submit to the rules of the game if he would have a part in the game. As he comes to maturity he becomes conscious that society must impose restraint upon him and hence feels no resentment against all restraint, as does the untrained child. He does, however, feel resentment if restraints are imposed upon him in his pursuit of happiness which are not imposed upon others in their pursuit. Similarly he feels resentment if exemptions from restraint are allowed some others and not allowed him also. Furthermore, he is quick to note any discrimination against himself and prone to imagine it when in fact there is none. Almost as soon as the average child is placed with others under a common authority, as in a public school, he begins to complain of the teacher's partiality to other pupils. He will stay in no game where the rules operate unequally against him. He insists on an even chance with his fellow players. When later in life he engages in business he resents any favoritism shown by the government of his state or town to others in the same or a similar business. This feeling is especially noticeable in the matter of taxation. If one believes the taxes imposed by the government are unnecessarily heavy he may feel some resentment, but his resentment is much greater if he believes he is overtaxed in comparison with his fellows, that they are escaping their proportionate share of the burden, or that taxes are imposed on his products in order to favor the products of others, as when oleomargarine was taxed to handicap it in its competition with butter. This feeling of resentment at inequality of restraints and burdens imposed and exemptions granted is not ignoble, is not a feeling to be suppressed or even concealed. It is far different from the feeling of envy. If I can only afford to ride in a trolley car I may envy the man who can afford to ride in a luxurious motor car and yet not feel wronged. But if I am excluded from a public street car to which he is admitted I have a different feeling, that of resentment. I may be perfectly willing that all others, rich or poor, shall use the streets to the full extent that I do, but if it be proposed that my use shall be limited in order that some others may for their private purposes have more than an equal use with me, my feeling is not one of envy but of indignation. So I can appreciate that if I wilfully or through carelessness injure another I should make full compensation, and hence can cheerfully submit to the law compelling me to do so; but if the law undertakes to exempt any other person from a similar liability, I feel a keen sense of wrong. Conversely, the most strict disciplinarian, the martinet even, if otherwise competent receives ready obedience and respect if it is seen that he treats alike, according to their merits, all subject to his authority. This feeling is natural. Nature is impartial in the application of its laws. It allows no exemption. Its fires burn the weak as well as the strong, the child as well as the man, the poor as well as the rich. One star differs from another star in glory, but no one of all the millions of stars is exempt from any of the laws set by nature for stars. This feeling of right to impartiality of treatment had some faint expression in the Massachusetts "Body of Liberties" of 1641, in which it was declared that the liberties, etc., therein enumerated should be enjoyed "impartially" by all persons within the jurisdiction of the colony. It was more distinctly recognized in the Connecticut Declaration of 1818 and a part of the Connecticut Bill of Rights today, "That all men when they form a social compact are equal in rights and that no man or set of men are entitled to exclusive public emoluments or privileges from the community." Again it appears in the federal and some state constitutions in the provision against the granting of titles of nobility. It seems to be at least impliedly recognized in the XIVth amendment to the United States Constitution in the clause that no state "shall deny any person within its jurisdiction the equal protection of the laws," since "the equal protection of the laws" necessarily implies protection against unequal laws, laws favoring some at the expense of others or of the whole. If the state favors one more than another it does deny that other equal protection. I do not subscribe to the doctrine that "the greatest good of the greatest number" is to be sought. The only legitimate search is for the good of the whole number without discrimination for or against any one. This sentiment found expression in the once popular slogan, "Equal rights for all. Special privileges for none." I say once popular, for today it would seem not popular in practice. True, special privileges are still loudly denounced, but under the name of special exemptions, they are still demanded by those who denounce them most loudly. It is not inequality of natural powers of body or mind, nor inequality in natural conditions, that excites this feeling of resentment I have noted. The man of feeble natural powers may envy him of strong natural powers, but he can see that society, that law, is not responsible for that inequality. If one finds himself from lack of natural ability or adaptiveness unable to accomplish what others of superior ability or adaptiveness easily accomplish, and hence he fails to receive the prize they so easily win, he may feel great disappointment and regret, but if honest with himself will not attribute his failure to the injustice of society. It is not essential to the preservation of society and the race that such inequalities should be removed, that all men should be reduced to a dead level of capacity, that human nature should be ignored. It is strongly felt, however, that society should not itself create artificial inequalities, should not allow one man or set of men a liberty it will not allow to others, should not impose burdens on one man or set of men to be borne by them alone while others are exempt; or if it does undertake to do so it should be able to demonstrate that such artificial inequality is necessary for the safety of all. The intensity of this feeling against artificial inequalities is so great that men sometimes prefer equality before the law even to liberty. When the British ambassador said to Madam De Stael that Frenchmen had no more liberty after the Revolution than before, she answered that they had acquired equality before the law and they preferred that to more liberty. This sentiment was tersely and well expressed in the French Declaration of Rights of 1795. "Equality consists in this, that the law is the same for all whether it protects or punishes." Of course, no assertion of rights can be carried to the extent of the dictum, "Fiat Justitia ruat Respublica," for if the state fall, all hopes of justice fall with it. When the alternative is the conquest of the particular society by invasion or its disorganization by rebellion or rioting or otherwise, some of its members must submit to the sacrifice of some or all of their rights. Nature will sacrifice individuals for the preservation of the race. Society must sometimes do the same. "Inter arma silent leges." But such times are exceptional and not within the scope of our inquiry. To sum up the matter, justice is the according to every one his right, and that right is such freedom of action in gratifying one's desires as can be exercised in harmony with like freedom by others. In other words, it is equal freedom, equal restraint. It is order and harmony. Plato and Aristotle were right in teaching that order is an essential element of justice. But who is to determine the matter? Who is to determine what degree of restraint or liberty is necessary to secure this order and harmony, this justice? Obviously it is society, or rather, individuals acting as a whole through society and not each individual acting for himself, that must determine such questions. Society has the responsibility. If it imposes too many restraints or imposes them unequally it excites, as said before, resentment and antagonism, sometimes to the extent of resistance. If it imposes no more restraints than are necessary and imposes them equally, order and harmony are secured. And when we have this equal freedom with equal and only necessary restraints we have order and harmony,--in other words, justice. Indeed, to repeat, justice in some of its aspects may be considered as the desired equilibrium between the needs of society and the interests of its individual members. I have left out of the account various virtues,--pity, sympathy, philanthropy, generosity and the like. Though these make social life more agreeable and contribute much to the sum of human happiness, they are not essential to the existence of the race or society. Society as an organization is not held together by these virtues, though many of its weaker members might suffer and perish if they were non-existent. Allow men as much freedom of thought and action as can be exercised without interference with like freedom of others, but restrain them from exercising any greater freedom, and they can and will live together in society though they may be wholly selfish in feeling and conduct. What is called the golden rule, that we should do to others as we would have them do to us, is a precept of philanthropy, of charity, not of justice. The rule enunciated by Confucius five hundred years before Christ, the rule that we should not do to others what we would not have them do to us, is sufficient for the existence of society. The French Convention of 1793 stated the proposition in these words: "Liberty is the power that belongs to man to do whatever is not injurious to the rights of others; it has nature for its principle, justice for its rule, law for its defense: its normal limit is the maxim, Do not to another that which you do not wish to be done to you." This order and harmony, however, are not easily secured. Not only are there honest differences of opinion as to what restraints are necessary and how and on whom they should be imposed, but society is divided into groups or classes with interests conflicting, or thought to be conflicting, and each seeking to impose restraints on others while retaining freedom for themselves. While professing to demand more liberty and equality, they are often really insisting on greater restraint and inequality. The successful insistence of the trades-unions of England in securing from Parliament a statute exempting their funds from answering in damages for injuries caused by them is a conspicuous instance. Another and equally glaring example is the effort in this country to exempt from the law against combinations in restraint of trade, combinations to increase the cost of living by increasing the prices of agricultural products and the prices to be paid for labor. The effort seems to be to compel men to compete in the use of their savings no matter how wasteful the competition, and to forbid men competing in the use of their labor, no matter what the idleness thereby caused. I think it a truism that whoever seeks to be exempted from the restrictions or liabilities he would impose on others, seeks not justice, but to do injustice. Another hindrance arises out of the very virtues of pity and sympathy. These impel many to endeavor, not to persuade, but to compel the more efficient and prudent who have by their farsightedness, courage, industry and thrift made good provision for themselves and their offspring, to provide also for the inefficient and the improvident. To be asked to give to these does not offend any sense of right, but if one be told he must give he feels resentful at once. He feels he has a right to decide for himself to whom and to what extent he shall give of his savings. Society did not come into existence nor does it now exist to correct the inequalities of nature, the inequalities of natural powers, nor to prevent the efficient and prudent receiving and enjoying the results of their efficiency and prudence. Nature itself makes no such effort. It rather tends to eliminate the less efficient and preserve the more efficient. Even if society may strive to preserve the inefficient and improvident, should it do so by hampering and restraining those wiser and more capable? We must expect nature to deal with society, with states and nations, as it does with individuals. If a state by its laws discourages the exercise to its full extent of the efficiency of the few and renders less severe the penalties for the inefficiency and imprudence of the many, it cannot long maintain any advantageous position among other nations. Whatever the precepts of religion, of philanthropy, or of other virtues may require, the precepts of justice do not require society to support men in idleness nor even to furnish them with employment. Neither do the precepts of justice require the state to furnish opportunities, nor even to establish equality of opportunity, but only equality of right to take advantage of opportunity. It is a saying, but not a fact, that opportunity knocks once at every man's door. Nature does not bring opportunities, much less equal opportunities, to men's doors. It requires men to go out and search for opportunities, or at least to be on the watch for them, as it requires men to search or watch for other things they desire; and he of the quickest perception and most farsighted will soonest see them, and when seen he does not feel any obligation to share them with others less vigilant or even less fortunate. Society does not support its members, they support it and must support it and themselves by their own exertions, find their own place, find employment for themselves, so far as the precepts of justice are concerned. However prevalent the sentiment that more than equality of right to use his opportunities is due to any one, it is not an instinctive sentiment. The contrary is the fact. Unless we are dominated by some other sentiment than justice, we instinctively yield assent to Aristotle's proposition that the prize flute should be awarded to the best flute player whether opulent or indigent, literate or illiterate, citizen or slave. A group of small children exploring the fields and woods for wild flowers will concede to each what flowers he finds whether by his better eyes or better luck. So with groups of small boys fishing in the streams and brooks. In games of cards for stakes, the players do not expect to hold cards of equal value and they concede the stakes to the winner, whether won by his greater skill or superior cards. Also there is an instinctive sentiment that the evil results of one's own conduct should be borne by him alone. If one suffers loss through his own misjudgment, incapacity, or want of care, then, whatever the precepts of other virtues may require, we do not feel that justice requires us to bear any part of that loss. On the contrary, we feel instinctively that he should bear the loss alone, that it is the natural penalty for his lack of judgment, capacity, or care. If my neighbor neglects to insure his house and loses it by fire, I see no reason why he should not bear the loss alone. In this connection, perhaps I should not omit to notice references often made to the rights of labor, the rights of capital, property rights, and personal rights, as if they were different in their nature and importance. I do not as yet see such difference. All rights are personal rights, and the right of each to control his labor, his savings, his person, and his property is the same. I am not yet convinced that the right of the laborer to make use of his labor is superior to that of the capitalist to make use of his capital; that, whatever his greater need, the right of one without property is superior to that of one who has property; that the right to get is superior to the right to save. It is also loudly proclaimed that "property rights" are of little importance compared with "human rights," unmindful of the truth that the right "of acquiring, possessing and defending property" is, as much as any other, a human right and, as such, necessary to be maintained if the race is to rise above its primitive condition of poverty. However, I do not see that the differences, if any, affect the general question of individual rights. The conclusion I arrive at is this: Society, and with it the race, cannot survive unless it restrains to some extent individual freedom of action, nor can any particular society long survive if it carry that restraint too far. It should, therefore, ascertain and maintain the line, the equilibrium, between necessary freedom and necessary restraint. It is only by such action of society that justice can be established and the welfare of the race be advanced. This brings us to the question of how and by what instrumentalities society can best perform this momentous task, the securing of justice. This will be considered in the next chapter. CHAPTER V JUSTICE CAN BE SECURED ONLY THROUGH GOVERNMENTAL ACTION. THE BEST FORM OF GOVERNMENT In the present state of civilization society cannot act effectively for determining and maintaining the line, the equilibrium, between necessary freedom and necessary restraint, or in short, justice, except through some governmental organization with power to define and enforce. Appeals to altruistic sentiments will not suffice. This truth was recognized by the framers of our federal and many state constitutions, in naming first among the purposes of government the establishment of justice. Any government, however, or rather those entrusted with its administration, may through mistake or wilfulness do injustice to some of its subjects. It has often done so in the past and the future is not free from the danger. The very possession of power excites a desire to use it, and it is an admitted characteristic of our human nature that those vested with power, political or other, are prone to exercise it unduly, to abuse it. Men in authority are often said to be "drunk with power." Hence to ensure justice the governmental organization should be such that the limits of the various powers of the government be carefully defined and its administrators be kept within those limits. Some years ago I might have pointed to our own federal and state governments as the best in form and character for establishing justice and rested there. In later years, however, the superiority of our system is questioned, and radical changes are urged, and indeed some have been made, in the federal system and in that of some of the states. I feel, therefore, that I should make some defense of the system, believing as I do that in its general form and character it is best adapted to secure firmly as much individual liberty of action and equality of right as is consistent with the welfare of the whole number, or, in other words, best adapted to secure justice. It has become a familiar maxim that the functions and powers of government may all be grouped in three classes or departments, corresponding to the duties already named: (1) that of determining what rules and regulations should be observed, what restraints and duties should be imposed upon its subjects; (2) that of determining whether in a given case any of these rules, etc., have been violated; and (3) that of punishing their violation and otherwise enforcing their observance. These three groups have come to be called the three powers of government and to be designated as the legislative, judicial, and executive, though they are usually named in another order as the executive, legislative, and judicial. The most efficient form of government for good or evil, and the quickest to act, is undoubtedly that in which all of these powers are united in a single individual. If that individual were always strong, yet peace-loving, self-controlled, sagacious and exclusively devoted to the welfare of his subjects, that form of government would perhaps secure them justice most surely and speedily. Such men, however, are rare and such governments have been found to be invariably and almost inevitably arbitrary in their dealings with their subjects, and in the plenitude of their power to become oppressive. While they may effectually protect their subjects from foreign aggression and domestic anarchy, their tendency is to impose burdens and restrict individual liberty more than necessary, and to disregard the innate desire of men for liberty or at least for equality of restraint. This form of government has already largely disappeared and is further disappearing, though it may again be resorted to for the restoration of order, should the present forms of government fail to prevent violence and preserve the peace. But other forms of government have not been and are not yet wholly free from the same objectionable tendency. The vesting of all these governmental powers in a group or class of persons instead of one person has been followed by the same results. Aristocracies or oligarchies have the same tendency and even in a greater degree. They have proved even more selfish and tyrannical than the single ruler. They, like all crowds, are less sensitive in conscience, less moved by appeals to reason, than is the single individual. They offend more the sentiment of equality. The French Revolution was not so much against the king as against the nobility, who with their oppressive feudal exemptions had excited the resentment of the people at large. It was not till after he had cast in his lot with the emigrés that the king was deposed and guillotined. Nor have pure democracies, in the few instances where they have undertaken to exercise directly all the powers of government, showed less tendency to be arbitrary and inconsiderate of individual freedom and desires. The nearest approach to such a government was that of ancient Athens where the populace sent into exile, practically without trial, Aristides, called the Just, Miltiades, the victor of Marathon, and Themistocles, the victor of Salamis. The excesses of the Paris Commune of 1870 during its reign, the lynchings of today by mobs of so-called "respectable citizens" who assume the power to accuse, judge and execute all at once, indicate how much regard unrestrained democracies would have for the rights of their individual members. Nevertheless, despite the danger of more or less arbitrariness, of more or less oppression of the individual, any government must be made strong enough perfectly to maintain order and peace among its subjects. Order is earth's as well as heaven's first law. The goddess Themis in the early Greek mythology was the goddess of order as well as the supplier of _themistes_ or decisions. She was present as the spirit of order in the councils of gods and men. The government that cannot or will not maintain order and peace, prevent violence and fraud, enforce individual rights and redress individual wrongs completely and promptly, is so far a failure and whatever its form should be reformed or overthrown. Even military despotism is better than disorder. On the other hand, there must be taken into account the tendency, already mentioned, of the possessor of unlimited power over others to use it for his own benefit or pleasure at the expense of those subject to his control, where not restrained by affection or like virtues. Under all governments there has been more or less friction between the persons governing and those governed; more or less strife, sometimes culminating in rebellion and even revolution. If it be said that under a government by the people directly, a pure democracy, such as seems to be advocated at this day, there would be no distinction between governors and governed, that all would be governors and governed alike, the answer is that in a pure democracy the governing power is and can be exercised by only a part of the people, a majority it may be, but still only a part. This part are the governors. The other part, perhaps nearly as numerous, are governed. Friction and even factious strife would still exist. Indeed, a government by a pure democracy ruling directly would probably be more arbitrary than any other, as was the case in Athens. The government by one, or that by a few, would be restrained to some extent by public opinion, would refrain from extreme measures lest they excite effectual resistance, but a majority would feel no such restraint. It would itself constitute public opinion and it would be less likely to fear resistance. It is evident, therefore, that the frame of government should be such as to secure uniformity in its action so that it shall not act arbitrarily and unequally on its subjects. I assume that no sane man would desire to live under any government where the wielders of the governmental power, one or many, are entirely without legal restraint. We all desire normally, not only order and peace, but also personal liberty and equality of rights. The problem, then, is how to order the frame of government so that it shall be strong enough to protect us individually as well as collectively, but not left able to oppress us or any of us. As said by Alexander Hamilton, we "must first enable the government to control the governed, and in the next place oblige it to control itself." One great step toward such a form of government was made in the establishment of our federal and state governments by giving effect to the theory of the tripartite nature of governmental powers, entrusting each of the three to a different person or group of persons, or, in other words, to a different department, each restraining the other departments from exceeding their defined powers, so that the government, however democratic, shall not run wild. At this day, however, even this feature of our form of government is assailed as hampering the people and their government and greatly delaying desired reforms. It may be admitted that a government with its powers thus separated in different departments is not able to act as quickly as desired by zealous persons confident of the excellence of their schemes and impatient for their realization, but, on the other hand, it is less liable to act too hastily, less liable to act arbitrarily, or to disregard individual rights and interests. The idea of a division of governmental powers is not of recent origin. Aristotle argued that the judges should have no other political power, should not themselves enforce their decisions. In Rome under the Republic there was divided between the pretor and the judex the power to decide controversies. The pretor had other duties, but the judex was confined to the single duty to hear and determine. The framers of our Federal Constitution and of our early state constitutions did not act hastily nor unadvisedly. As heretofore stated, the long controversy with Great Britain over the relations between that country and her Colonies, the arbitrary acts of the British King and Parliament, caused in the Colonies a profound study of the nature of government: what should be its purposes and how best to effect its purposes and avoid its abuses. The principal men among them in each Colony were familiar with the history of governments and with the theories of government advanced by European lawyers and political philosophers. They were acquainted with the arguments of Montesquieu and others that a separation of the powers of government and the vesting of each, the executive, legislative, and judicial, in different hands was essential to liberty. They did not merely theorize, however. They had themselves lived and labored under governments not thus divided in functions or only partially so. Colonial governors had assumed legislative functions in the promulgation of ordinances, and also judicial functions as judges of probate and in other ways. The colonial legislatures did not hesitate to dictate to the courts in particular cases and often acted as a court of appeal. In Massachusetts Bay the legislature came to be known as the General Court and exercised judicial power freely, sometimes calling in the judges to sit with them. The same individual could at one and the same time fill an executive and a legislative or judicial office. In colonial Massachusetts William Stoughton held the offices of military commander, lieutenant governor, and chief justice at the same time. Because of the frequent and prolonged absences of the titular governor he was often the acting governor. As an inevitable consequence, when sitting as a judge he was more a zealous prosecutor than an impartial judge. His conduct in the witchcraft trials was comparable to that of Jeffreys in the infamous "Bloody Assizes." Hutchinson was also often acting governor while holding his commission as chief justice. In view of their experience and deep study, the opinions formed by the framers of the early constitutions of this country should be of great weight in forming our own. It is worth while to cite the opinions of some. Thomas Jefferson was not in his day, nor has he been since, regarded as opposed to popular government. Virginia had as early as 1776 declared in its first constitution that the three great departments should be kept separate. Jefferson, who besides his other opportunities of observing the operation of government was himself chief magistrate of the state, criticized that constitution as not making such separation effectual. In his "Notes on Virginia" he wrote of it: "All the powers of government, legislative, executive and judiciary, result to the legislative body. The concentrating these in the same hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one. Let those who doubt it turn their eyes on the republic of Venice. As little will it avail us that they are chosen by ourselves. An elective despotism was not the government we fought for, but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy as that no one could transcend their legal limits without being effectually checked and restrained by the others. For this reason the convention which passed the ordinance of government laid its foundation on this basis, that the legislative, executive and judiciary departments should be separate and distinct, so that no person should exercise more than one of them at the same time. But no barrier was provided between these several powers." It was this defect, this lack of barriers, that Jefferson lamented. When the draft of the Federal Constitution of 1787 was submitted to the states, one of the principal objections urged against it was that in its structure sufficient regard was not paid to keeping the three departments of government separate and distinct. In reference to this objection Madison wrote in the "Federalist": "No political truth is certainly of greater intrinsic value or is stamped with the authority of more enlightened patrons of liberty than that on which this objection is founded. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. Were the Federal Constitution therefore really chargeable with this accumulation of powers, or with a mixture of powers having a dangerous tendency to such an accumulation, no further argument would be necessary to inspire a universal reprobation of the system." He elsewhere declared the maxim to be a "fundamental article of liberty." Hamilton was apprehensive of danger to liberty from the legislative department and favored a strong executive to guard against it. He declared in the "Federalist" that the legislative department was "everywhere extending the sphere of its activity and drawing all power into its impetuous vortex,"--that the people "never seem to have recollected the danger from legislative usurpation which by assembling all power in the same hands must lead to the same tyranny as is threatened by executive usurpation." Washington in his Farewell Address, after much experience with, and observation of, legislative action, said: "The necessity of reciprocal checks in the exercise of political power by dividing and distributing it in different depositaries and constituting each the guardian of the public weal against invasions by the others has been evinced by experiments ancient and modern, some of them in our own country and under our own eyes. To preserve them must be as necessary as to institute them." After having lived for generations under governments in which there was no effective division of powers, the people of the various colonies in setting up their own governments at the time of the Revolution very generally declared for such division, in more or less explicit terms. Even in the few cases where the division was not expressly made, it was implied in the constitution. The provision in the constitution of Massachusetts adopted in 1780 may be cited as an example of the strength of the conviction. "In the government of this Commonwealth the legislative department shall never exercise the executive and judicial powers or either of them; the executive shall never exercise the legislative and judicial powers or either of them; the judicial shall never exercise the legislative and executive powers or either of them." To this provision were appended, as the reason for it, the memorable words, "To the end that it may be a government of laws and not of men." From 1776 to the present century as new states were formed their people in most instances have adopted similar provisions. Perhaps the people of Maine when they separated from Massachusetts in 1820 adopted the most stringent provision by prohibiting not only the departments but all the persons in either department from exercising any of the powers properly belonging to either of the other departments. Of course some exceptions to the rule are necessary and these are usually named in the constitution itself. Again the dividing line between the powers cannot always be precisely defined and, further, each department in the performance of its own proper functions may sometimes be obliged to exercise a power strictly pertaining to another department. All that the maxim requires is that the three powers should be kept as distinct and separate as possible and have the government still go on. It is true we should not fear to question the wisdom of our fathers, but conclusions they have arrived at in matters of government after long study, observation, and actual experience should not be disregarded unless their error can be clearly demonstrated. CHAPTER VI THE NECESSITY OF CONSTITUTIONAL LIMITATIONS UPON THE POWERS OF THE GOVERNMENT. BILLS OF RIGHTS It should be evident that the division and distribution of governmental powers among different depositaries will not alone prevent encroachments by the governing power upon the liberty of the subject. The executive department in performing only executive functions can, in the absence of other checks, act oppressively. The legislative department, especially, without exceeding the legislative function, can in many ways and in excessive degrees oppress the individual by unnecessary restrictions of personal liberty, by unnecessary exactions, by arbitrary discriminations. The theory of representative government is that the legislature will be a body of men who will regard themselves as entrusted with important powers to be exercised deliberately and wisely for the welfare of the whole commonwealth and not for any one or more classes or interests,--who will regard themselves not as mere delegates or proxies, but as representatives, like the directors of a corporation, to form and act upon their own judgment after investigation and reflection. Experience has shown, however, that members of the legislature do not always nor generally act upon that theory. They seem to be inoculated with the bacillus of irrepressible activity, the desire continually to be proposing new laws, new restrictions, new exactions. If the laws enacted prove difficult of enforcement by reason of their interference with what individuals feel to be their rights, then new and oppressive methods of enforcement are devised, still further restricting liberty and equality. I have seen it stated that in the first ten days of the session of the Massachusetts legislature this present year over a thousand laws were proposed. Further, the members of the legislature are beset by constituents and others to favor legislative measures for their own special benefit, or that of their association, or of their locality. One result is that during every legislative session the ordinary citizen is dreading oppressive legislation and feels relieved when the session is over. When we consider the wide, almost unlimited range of the legislative function, and the power and tendency of legislatures to push that function to the extreme, it would seem that some check should be put upon the legislature to prevent its enacting discriminatory laws or otherwise depriving the individual of some accustomed and cherished freedom of action. If it be said that public opinion is sufficient restraint, the answer is that in a democracy, or in a republic with universal suffrage, the efficient public opinion is practically that of the majority of the electorate, and it is an acknowledged truism that the unrestrained majority is even more likely than the few to be oppressive of the individual. The opinion of the many is more variable than that of the few, more likely to be swayed by sympathy, prejudice, and other emotions. Indeed, public opinion sometimes induces legislatures to enact laws which they themselves feel to be unwise and tyrannical. If history and reason show that the happiness of the people as a whole requires certain individual liberties and rights to be left undisturbed and that the safety of the people as a whole does not require the contrary, then in order to secure justice those possessing the powers of government should be restrained from any acts infringing those liberties and rights; for, as already stated, justice consists in the equilibrium between restrictions necessary for the welfare of the whole people without discrimination, and the freedom of the individual to serve his own welfare. I think there are such liberties and rights. The subjects of King John in the 13th century thought so and compelled the king to guarantee by the Magna Charta that certain specified rights and liberties should not be infringed. Again, the subjects of Charles I in the 17th century had a similar conviction and expressed it in the Petition of Right, which named some liberties and rights not to be infringed. The king assented to that much limitation of the royal power. In the same century, upon the accession of William and Mary, a Bill of Rights was framed and enacted into law by King and Parliament, naming liberties and rights of the subject which ought not to be abridged. Succeeding Kings and Parliaments seem to have respected the provisions of this Bill of Rights in their legislation for British subjects. Had they conceded the claim of the people of the American Colonies that they also were protected by its provisions, the course of our political history might have been different. As it was, however, the British government practically held that neither Magna Charta, the Petition of Right, nor the Bill of Rights restrained it in its dealings with the Colonies, and this in despite of the protests of some of its most eminent statesmen. The resolutions of the various Colonial legislatures and the formal Declaration of Independence recite many grievous instances of arbitrary action by the government in disregard of the doctrines of those charters. So bitter was their experience that, when the people of the various Colonies came to frame constitutions for "a government of the people, by the people, and for the people" independent of the British crown and all other external authority, they very generally insisted that even such a government should have its powers defined and limited, that some rights of the individual should be specified which the government should not infringe nor have the lawful power to infringe. From their own experience the people were convinced that such definitions and limitations were necessary for the security of the individual even under a popular government. The first step of the representatives of the people of Virginia toward a declaration of independence of the British crown, and the setting up an independent government, was the adoption of a declaration of rights in the individual which no government should infringe. This was adopted and promulgated sometime before the constitution proper was framed. The statement was declared to be necessary in order that the government might be "effectually secured against maladministration." Similar limitations upon the powers of the government were imposed in the early constitutions of Massachusetts, New Hampshire, New Jersey, Delaware, Pennsylvania, Maryland, North Carolina, and South Carolina; also in the first constitution of Connecticut in 1818, and in the first constitution of Rhode Island in 1842. The people of New Jersey in 1844 made the limitations more definite, and the people of Maryland imposed additional limitations in 1864. The people of New York did not in their first constitution of 1777 expressly in terms guarantee individual rights, but they impliedly did so by making the Declaration of Independence the preamble, and in their constitution of 1821 they incorporated an explicit statement of individual rights not to be infringed. The example of the original states in this respect has been followed by most of the subsequent states of the Union. In 1778 a convention chosen to draft a constitution for Massachusetts submitted a draft to the people, who rejected it by a large majority mainly because it did not contain a "Bill of Rights." To quote from Harry A. Cushing, a writer on the History of Commonwealth Government in Massachusetts, "No demand was more general than that for a Bill of Rights which should embody the best results of experience." In 1780 a second convention submitted another draft of a constitution containing the famous Massachusetts Declaration of Rights, and this the people adopted by a majority of more than two to one. The only objection urged against the Declaration of Rights was that it did not go far enough. In the convention that drafted the Federal Constitution it was strongly urged that a Bill of Rights should be incorporated in the draft, but it was deemed, by the majority at least, unnecessary and even dangerous to make a specific declaration of individual rights, inasmuch as the federal government contemplated was in its very nature limited to such powers as were expressly, or by necessary implication, conferred by the Constitution, and hence to specify certain things the government should not do might be construed as permitting it to do anything not so specified. This argument prevailed and the draft submitted to the states contained no Bill of Rights. Immediately, however, a storm of objections was raised against it because of the omission. Despite the arguments of Hamilton and Madison that a Bill of Rights was unnecessary, ratification was finally obtained only by a general assurance and understanding that a sufficient Bill of Rights should be added immediately upon the organization of the new government. The necessary amendments, therefore, were submitted at the first session of the new Congress and were unanimously adopted by the states. Other limitations have since been imposed, notably those in the XIVth amendment, assuring to every citizen equal consideration in legislation by the states. By the Federal Constitution as it now stands the citizen, in time of peace at least, is guaranteed, among other matters, the protection of the writ of habeas corpus; freedom from bills of attainder and ex post facto legislation; freedom of religious belief and worship; freedom of thought and its expression; freedom peacefully to assemble with others and petition for redress of grievances; freedom from unreasonable searches and seizure; the right not to be prosecuted for infamous crimes except first accused by a grand jury; the right in all criminal prosecutions to a speedy and public trial by an impartial jury, to be confronted with the witnesses against him and to have assistance of counsel; that he shall not be deprived of life, liberty, or property without due process of law; that his private property shall not be taken from him even for public use without just compensation; that the obligations accruing to him under lawful contracts shall not be impaired; that he shall not be denied the equal protection of the laws. The guarantees in the state constitutions are generally of the same nature. It is difficult to see how any of these guaranties, or such other guaranties as may be contained in the federal and state constitutions, prevent legislative or executive action necessary for the welfare of the people generally. There is certainly an ample field for such action without overstepping these boundaries. Nevertheless, it is today urged by some impulsive persons, eager to impose their theories on the people at once, that all or many of these limitations upon the powers of government should be removed or disregarded and the majority of the people allowed unrestricted sway in all matters of governmental action. Others who do not go so far, yet urge that the majority should be free to suspend these guaranties temporarily or in some particular classes of cases. Against this opinion I submit that after so many centuries of experience of the tendency of all governments to enlarge their powers over the subject, and of struggles to limit the powers of government over private rights and to protect the individual from governmental oppression, the burden of evidence and of argument is heavily on those who would now advocate unlimited powers even for the most democratic government. A government directly by the people is of course in practice a government by a shifting and often narrow majority of the people. It is not yet demonstrated by experience or reason that such a government, unlimited, would be as regardful of individual rights or welfare as a republican form of government with its checks and balances and constitutional restrictions. The excesses of the unlimited democracies of ancient Greece and of the unrestrained democracy of France during and after the revolution of 1789 and the lynchings in this country do not contribute to such demonstration. It is not those who defend our present form of government with its constitutional guaranties, who resist political action tending to weaken them, that should be called unprogressive, undemocratic, or wanting in love of country. Those of our ancestors, English and American, who fought for these guaranties, who obtained them only after years of strife, who incorporated them in our federal and state constitutions and safeguarded them against the varying impulses of the populace, were not unpatriotic nor unmindful of the welfare of the people,--were not indifferent to human liberties or human rights. Neither are they such who today strive to preserve those guaranties won at such expense of blood and treasure. On the contrary, it is those who would override these guaranties and revert to the old days of unlimited governmental power, that are the reactionaries. It may be admitted that some of these limitations if enforced do now and then impede and even prevent some governmental action desired by some group or section of the people, but while action in violation of these limitations might benefit its sponsors it would necessarily be at the expense of others. Those who seek such legislation against others would quickly appeal to these limitations if legislation were directed against themselves. The noisiest declaimers against these guaranties fall back for protection upon the constitutional guaranty of freedom of speech. So long as these barriers are maintained every individual, no matter how poor and feeble, will be, theoretically at least, secure in some rights against the attacks of the many. Without such barriers every individual is at the mercy of an inconstant majority. Without such barriers justice cannot be said to be secured. Lord Treasurer Burleigh of Queen Elizabeth's time declared that England could never be ruined by its kings, but only by its Parliament. If the safeguards of the federal and state constitutions are maintained, neither Congress nor the state legislatures can ruin America. If the American people should ever consent to the removal of these safeguards they would give evidence of their want of self-restraint, of their unwillingness and even incapacity to govern themselves, and would pave the way for the man on horseback as the French Revolution paved the way for Napoleon. To deprive a single one of his rightful liberty is to endanger the liberties of all. CHAPTER VII THE INTERPRETATION AND ENFORCEMENT OF CONSTITUTIONAL LIMITATIONS NECESSARILY A FUNCTION OF THE JUDICIARY Under our federal and state form of government the question naturally arises where should be lodged the power to determine whether in a given instance either department has encroached on the proper field of any other department, and whether either department has encroached on the constitutional rights of the individual citizen. It should be evident that neither the executive nor the legislative department is a fit depositary of such power. Both these, from the nature of their powers, are aggressive. They act of their own volition. They initiate proceedings and measures to carry out policies. In their activities they are apt, consciously or unconsciously, to overstep the boundary lines between the departments and also the limits set for the protection of the citizen against such activities. Again, questions may and often do arise between the government and the individual citizen that are not political questions, but are questions of private right, the right of the individual against the government. The disputants are the individual citizen or group of citizens on the one hand, and the government on the other whether that government be a monarchy, a republican or representative government, or a pure democracy. In such case it would seem clear that one party should not have the power to decide the question. It is an axiom that neither party to a controversy should be the judge in the matter. The legislature that enacts a statute claimed by a citizen to be beyond its powers and to deprive him of some right guaranteed to him by the constitution, should not be the judge of the question any more than should the complaining citizen. So the executive should not be the judge where a citizen claims it has exceeded its powers to the detriment of his constitutional or statutory rights. Even if a statute be enacted or ratified by the people directly, under the modern initiative and referendum, and a citizen claims that the statute deprives him of some right guaranteed by the constitution, the people should not be the judge; much less should a majority. If the individual is left to be the judge of his constitutional or legal right as against the government, the result would be anarchy. If the government, even the most popular government, is to be the judge, the result would often be tyranny. There would be occasions, as there have been, when an excited people or majority would tyrannize over the individual, indeed over the minority. To secure alike the people against anarchy and the individual against tyranny, power must be vested in some impartial, independent arbiter to determine authoritatively and finally the relative rights and duties of each under the constitution. The proper department to be made the depositary of this important power would seem to be the judicial. That department does not initiate, has no policies, does not act of its own volition, but acts only when its action is regularly invoked in some controversy and then only to end that controversy. It may seem unnecessary even to state, much less defend, the proposition, but as its logical result is that the judiciary when invoked by the individual must refuse effect, so far as he is concerned, to a legislative act which deprives him of some right guaranteed by the constitution, and must thus disappoint those who procured the passage of the act, the proposition has been, is still being, denied. The action of the courts in exercising that power has been and is even now denounced as usurpation. Though the proposition is now long established, these attacks justify some repetition of the argument in its support. The logic of Chief Justice Marshall in _Marbury_ v. _Madison_, 1 _Cranch_ 137 _at p. 176_, seems to me irresistible and worthy of frequent quotation despite the attacks upon it. The Chief Justice said: "This original and supreme will (of a people) organizes the government and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments.... The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited and to what purpose is that limitation committed to writing if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, either that the Constitution controls any legislative act repugnant to it, or that the legislature may alter the Constitution by an ordinary act. Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.... Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the legislature repugnant to the Constitution is void." In 1825 that eminent jurist, Chief Justice Gibson of Pennsylvania, in a dissenting opinion in _Eakin_ v. _Raub_, 12 _S. & R._ 330, insisted in an able, elaborate, and exhaustive argument that while the judiciary was bound to refuse effect to a state statute in conflict with the Federal Constitution, it was bound to give it effect if repugnant only to the state constitution. He frankly admitted the logical conclusion that in such case the only remedy the citizen had to enforce his constitutional rights was that of revolution. When, however, his opinion in _Eakin_ v. _Raub_ was cited in 1845 in argument in _Norris_ v. _Clymer_, 2 _Pa. St._ 277, he said he had changed his opinion on that question, partly "from experience of the necessity of the case." In the later case, _De Chastellux_ v. _Fairchild_, 15 _Pa. St._ 18, he was emphatic in his declaration of the power and duty of the court to refuse effect to a state statute in conflict with the state constitution. In delivering the opinion of the court he used this vigorous language: "It is idle to say the authority of each branch (of the government) is defined and limited in the constitution, if there be not an independent power able and willing to enforce the limitations.... From its very position it is apparent that the conservative power is lodged with the judiciary, which in the exercise of its undoubted right is bound to meet every emergency." The results of the contrary doctrine are well stated by the same court in _Perkins_ v. _Philadelphia_, 156 _Pa. St._ 554. "If laws in conflict with the constitution be passed by the legislature, approved by the governor and sustained by the court, that is revolution. It is no less revolution because accomplished without great violence. It matters little to the house owner whether the structure built to shelter him be blown up by dynamite, or the foundation be pried out stone by stone with a crowbar. In either case he is houseless." One desirable result of this doctrine that the courts when regularly invoked can and should refuse effect to an unconstitutional statute is that it ensures to every person, not in the military or naval service, the right to test in the judicial courts the authority of any official to interfere with his person, liberty, or property, whatever authority, executive or legislative, the official may plead. In France and other countries of continental Europe questions of the existence and extent of the authority of an official in his action against individuals are triable, at least at the pleasure of the executive, only in administrative tribunals, that is, courts pertaining to the executive department and instituted to assist that department in the performance of its functions. The aggrieved individual can only apply to the superiors of the official complained of. Such tribunals naturally incline to uphold the authority claimed, and indeed can lawfully allow the plea that the act complained of was ordered in pursuance of some executive policy. A recent instance is that unhappy affair at Zabern in Alsace where an army officer in time of peace wantonly struck and wounded a peaceful crippled citizen with his sabre. The victim could only appeal to the officer's military superiors, who acquitted the offender on the ground that the dignity of the military must be protected. In the United Kingdom, while at present, as for centuries, the individual can appeal to the judicial courts against officials acting under any executive or legislative orders, Parliament, and even a majority of the House of Commons, can at any time deprive him of that right. In this country the executive and legislative departments combined have no such power. So long as our present system is maintained, questions between government officials and individuals must remain cognizable by the judicial courts where the private citizen is on a par with the highest official, and the single individual is on a par with the government itself. In contrast to the Zabern affair we may note that the striking copper miners of Michigan were not obliged to apply to higher military officials for redress of wrongs claimed to have been inflicted upon them by the military. They were free to apply, and did apply, to tribunals outside of and independent of the executive. They and such as they should be the most unwilling to degrade the courts or lessen their power. A similar instance is that of the striking miners in Colorado who so loudly complained of the acts of the militia. They were not obliged to appeal to military or executive officers for redress. The Judicial Courts were as open to them as to any others and there they would be upon an equality with the officials. CHAPTER VIII AN INDEPENDENT AND IMPARTIAL JUDICIARY ESSENTIAL FOR JUSTICE For the judiciary to be in fact, as well as in theory, the protector of the constitutional rights of the individual against the government, and of the legal rights of the individual against the aggressions of others, it should be made so far as possible free, impartial and independent. The judges should have such security of tenure, and such security and liberality of maintenance, that they will have no occasion nor disposition to court the favor, or fear the disfavor, of any individual or class however powerful or numerous, not even the government itself. They should be made free to consider only what is the truth as to the existing law or fact in question, uninfluenced by any suggestions of what is demanded by prince, people, or individual, or by any suggestion of consequent good or evil to themselves. This proposition to my mind is so self-evident that quotations from eminent philosophers cannot strengthen it. The necessity of some independent tribunal between the governors and the governed was recognized in republican Rome, where it was provided that the persons of the tribunes should be inviolate, an immunity not granted to any other officials. The medieval cities of Italy frequently selected their judges from some other city that they might be free from any connection with different local factions or interests. When, however, the empire supplanted the republic in Rome, and the free cities of Italy were made subject to despotic domination, the independence of these tribunals was lost. History shows that those possessing the governmental power have always been unwilling to maintain an independent judiciary. The only countries today possessing a judiciary with any considerable degree of independence are the United Kingdom and some of its "Dominions beyond the seas" and our own country. The need of it was seen in the experience of the people of England and of the English Colonies in America under a judiciary liable to be deprived of office or salary if its opinions were displeasing to the crown. Charles I assented to the Petition of Right and promised to observe it, but no provision was made for any tribunal independent of the king to determine whether his acts were in violation of any article of the Petition. Consequently, when afterward in the matter of the tonnage and poundage tax Parliament remonstrated against the imposition of the tax as a violation of the royal promise in assenting to the Petition of Right, the king abruptly ended the session and in his speech of prorogation denied the right of Parliament to interpret the Petition and asserted that it was for him alone to determine "the true intent thereof." Again, the legality of the imposition by the king of the "ship money" tax without the consent of Parliament was hopelessly questioned. The king procured from the judges an opinion that he could lawfully impose such a tax without awaiting the assent of Parliament, when necessary for the defense of the kingdom, and that he was the judge of the necessity and proper amount of the tax. But this was not the opinion of an independent judiciary. The judges at that time could be promoted, removed, or "recalled" at any time at the king's sole pleasure, and they well knew the king's obstinate insistence in the matter. Their opinion simply gave expression to the king's will, and hence inspired no respect. Finally, for want of an independent tribunal empowered to determine authoritatively between king and subject "the true intent" of the Petition of Right, the legal extent and limitation of the royal power, the lawfulness of its exercise upon the subject in a given case, the issues between them had to be submitted to the arbitrament of civil war, with the result that the monarchical system of government was overthrown. Its successor, an unchecked parliament, was no less arbitrary in many of its acts, and was in turn overthrown and the monarchy restored. The restored dynasty, however, obeying the impulse of all possessors of governmental powers, soon began again to claim and exercise autocratic power, to encroach upon the rights and liberties thought to have been secured to the subject by the royal assent to the Petition of Right and vindicated by successful resistance, and also to suspend the operation of the laws at his pleasure. Unfortunately again there was as yet no impartial, independent tribunal in England to determine authoritatively the line between the royal power and the specified rights of the subject. The judges were still removable at the king's sole pleasure. James II did not hesitate to use this power to obtain such opinions and decisions as he desired. Preparatory to the trial of the Quo Warranto case against the City of London to procure the forfeiture of its charter, the king removed Chief Justice Pemberton and appointed in his place the servile Saunders who had drawn the writ in the case and had conducted all the proceedings in behalf of the crown as its counsel to the stage where the case was ready for argument in the Court of King's Bench. The case of the city was thereby made hopeless and the city itself helpless. In the case of the "Seven Bishops," prosecuted for libel in presenting to the king a petition for him to recall his order for the reading in the churches his Declaration of Indulgence, he seems to have felt tolerably sure of the court as it was already constituted. Two able and learned justices, however, Holloway and Powell, ventured the opinion that the petition was not libelous. They were both promptly "recalled." Again force had to be used to free the subject and maintain his "rights and liberties" against the sovereign. James II was driven from the country and William of Orange called to the throne. This time the people in settling the new government through parliamentary action went farther than before in the way of restraint upon the government and took the necessary step to secure their rights and liberties. In a new instrument, this time called a Declaration instead of a Petition, they reiterated the rights of the subject as twice before they had been formally asserted in the Magna Charta and the Petition of Right. This instrument, known as the Declaration of Rights of 1688, was presented to William and Mary, who solemnly engaged to observe and maintain its provisions. Further still (and this was the new and effective guaranty of the subject's rights), in the Act for the settlement of the crown it was enacted by king, lords, and commons that thereafter the judicial tenure of the judges of the courts should be during good behavior. Since that time for more than two centuries "the true intent" of the laws has been determined, not by king or parliament or people, but by a judiciary made strong and independent. There has been no need to resort to force to defend the legal rights of the subject. But this security for individual rights and liberties was not extended to British subjects in America. After the Colonies had so increased in population and wealth that they were deemed worth exploitation, the government, among other means of controlling them, took over the appointment of their judges, in many instances with a tenure during the government's pleasure only. In the circular letter of Massachusetts Bay Colony to the other Colonies in 1768 they are asked to consider whether for the judges of the land not to hold their commissions during good behavior and to have their salaries appointed for them by the crown did not have a tendency to "endanger the happiness and security of the subjects." One of the counts in the indictment of July 4, 1776, against the king's government was that it had made the colonial judges dependent on the king's will alone for the tenure of their offices and the amount and payment of their salaries. As a consequence of this experience with a judiciary dependent on the governing power for the tenure and maintenance of its judges, the Colonies when they set up independent governments of their own provided a fixed tenure for their judges in every instance but one. Connecticut in its first constitution made the tenure during good behavior, as did Delaware, Maryland, Massachusetts, New Hampshire, North Carolina, South Carolina, and Virginia. Pennsylvania at first fixed the tenure at seven years, but in 1790 changed it to good behavior. The same tenure was fixed for the federal judges in the Federal Constitution. In some instances also, further provision was made for the independence of the judges by forbidding the diminishing of their salaries during their term of office. The people of Massachusetts, which had been the most harried of the Colonies, declared emphatically the necessity for an independent judiciary. Article XXIX of the Massachusetts Declaration of Rights adopted in 1780 is as follows: "It is essential to the preservation of every individual, his life, liberty and property and character that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit. It is, therefore, not only the best policy but for the security of the rights of the people and of every citizen that the judges of the supreme judicial court should hold their offices so long as they behave themselves well; and that they should have honorable salaries ascertained and established by standing laws." New Hampshire, with a similar experience, adopted the same language in Art. XXXV of her Bill of Rights. The Maryland Declaration of Rights of 1776 contains this article: "Art. XXX. That the independency and uprightness of the judges are essential to the impartial administration of justice and a great security to the rights and liberties of the people; wherefore the chancellor and judges ought to hold commissions during good behavior." It is true that in most of the states the official tenure of the judges has since been reduced to a more or less brief term of years. This fact is only another instance of the tendency of the governing power to lower if not remove all barriers set up against it for the protection of the individual. Majorities as well as absolute kings like their own way. The change where made may have given majorities greater freedom to enforce their will upon individuals, but it has not increased confidence in the integrity of the judges nor made them more firm to ascertain and declare only the truth. It is true also that in most states now the people have taken to themselves directly the task of selecting men suitable for judges instead of entrusting that important duty to the governor or legislature, as was the practice in the early days of the republic. I cannot think this has tended to secure better judges, though it may have secured judges more subservient to majorities. Effectually to guard the constitutional and legal rights of all alike, the judges should possess what is called the legal mind and the judicial temperament. They should be able and learned that they may appreciate the real meaning, purpose, and scope of the constitution and statutes; calm and equable in temperament that they may not be influenced by sympathy, prejudice, or other emotions; strong and courageous in character that they may resist all pressure other than fair argument. To find the men possessing these qualities requires extensive and protracted inquiry and patient consideration, such as are not and cannot be exercised by the people directly. The task should be deputed in the first instance to the head of the state, the chief executive. He has the best means of ascertaining who possesses the requisite qualifications in the greatest degree. He would feel that he alone was responsible for a proper selection, and that feeling of responsibility would tend to make him deliberate and painstaking in his choice. On the other hand, if the original selection be entrusted to the legislature or left with the people acting directly, individual members would have a much lower sense of personal responsibility and the individual members of the electorate scarcely any at all. True, in those states where the judges are elected by the people directly, excellent judges are often and perhaps ordinarily chosen, but I think I state a truth in stating that upon the whole those courts composed of judges with a long tenure and appointed by the executive stand higher in public estimation and their opinions have greater weight. Such courts are certainly a greater protection to those guilty of no wrong, but who have been so unfortunate as to incur the displeasure of an excited community. Nevertheless, despite the lessons of history and the reasons contra, it is proposed in this twentieth century that the tenure of the judges shall again be during pleasure only,--this time during the pleasure of the majority of the electorate. The proposition is not stated so baldly by its proposers. They phrase it as the right of the people to remove or recall unsatisfactory public servants, whether judges, or governors, or other officials. They propose that at the request of a certain small percentage of the electorate, setting forth their dissatisfaction with a judge, he may be removed by a majority of the voters. As precedents for their proposal they point triumphantly to the provision of the British Act of Settlement that judges should be removable by the crown upon the request of both Houses of Parliament, and to similar provisions in many of our state constitutions. Of course, there should be lodged somewhere the power to remove judges proven to be unworthy of their high office, or incapable of performing its high duties, but it should be lodged in a body of men before whom the accused judge can appear in person or by counsel, hear the complaints and face the witnesses against him, and adduce evidence and argument in reply,--and who can on their part see the witnesses and hear the arguments before deciding. That was the opinion of the British Parliament in the few cases presented to them, and the state legislatures in this country have generally entertained the same opinion. It was also held by Parliament that the address for removal should state the reasons therefor. In 1855 Governor Gardner of Massachusetts declined to remove a judge of probate on address by the legislature because no sufficient grounds were stated in the address. He said that in every instance then on record full reasons for removal had accompanied the address. The constitutional provision for removal by address evidently was not designed to lessen the impartiality and independence of the judge by subjecting him to removal at the mere will of the executive and legislature, but that he might be removed for corruption, neglect of duty, incapacity, immorality, or other disgraceful conduct, after notice, hearing, and deliberation. For the executive and legislature, or even the majority of the people, to remove a judge because they do not like his opinions as to what the constitution requires or forbids them to do, would destroy the independence of the judges and thus deprive the citizen of all security for his rights and liberties under the constitution,--would be despotism. The principal argument for lessening the independence of the judges and making them more subservient to the inconstant majority seems to be that otherwise the judges will misuse their power and impede the operation of statutes they do not themselves approve of. The argument has little or no foundation in fact. Perhaps among the hundreds, if not thousands, of cases of holding a statute unconstitutional a few may seem to have been so decided because the judges thought them unwise and oppressive. Some expressions in judicial opinions have been unfortunate in that respect, but the courts everywhere in this country, now if not at first, disclaim any such power. The same Chief Justice Marshall, who had so convincingly stated the duty of the judiciary to refuse effect to unconstitutional statutes, later in _McCulloch_ v. _Maryland_, 4 _Wheat._ 316, disclaimed for the courts all pretensions to any power to inquire into the necessity of any statute, or in any way to interfere with the discretion of the legislature. In strong and explicit language other courts have disclaimed such pretensions. The Minnesota court in _State_ v. _Corbett_, 57 _Minn._ 345, held that courts were not at liberty to declare a statute unconstitutional because it is thought by them to be unjust or oppressive, or to violate some natural, social, or political right of the citizen, unless it can be shown that such injustice is prohibited, or such rights protected, by the constitution. The Pennsylvania court in _Com._ v. _Moir_, 199 _Pa. St._ 534, used this language: "Much of the argument and nearly all the specific objections advanced are to the wisdom and propriety and to the justice of the statute and the motives supposed to have inspired its passage. With these we have nothing to do. They are beyond our province and are considerations to be adduced solely to the legislature." The court of West Virginia in _Slack_ v. _Jacob_, 8 _W. Va._ 612, said: "That the judges are convinced that a statute is contrary to natural right, absolute justice, or sound morality does not authorize them to refuse it effect." The court of Washington in _Fishing Co._ v. _George_, 28 _Wash._ 200, held that "a statute cannot be ignored by the courts because leading in its application to absurd, incongruous, or mischievous results." A few cases may also be cited showing how relentlessly this disclaimer is applied. The court of New York in _Kittinger_ v. _Buffalo Traction Co._, 160 _N. Y._ 377, held that the courts had no power to inquire into the motives inducing legislation and could not impute to the legislature any other than public motives. The Pennsylvania court in _Sunbury R.R. Co._ v. _People_, 33 _Pa. St._ 278, had urged upon it the argument that the statute in question had been "passed in fraud of the rights of the people." The court held that, if true, that fact would not authorize it to refuse it effect. The Tennessee court in _Lynn_ v. _Polk_, 76 _Tenn. St._ 121, was asked to declare a statute ineffective because its enactment was procured by bribing members of the legislature. The court held it could not do so. The Missouri court in _Slate_ v. _Clarke_, 54 _Mo._ 17, had before it a statute authorizing the licensing of bawdy houses and was urged to declare it unconstitutional because against public policy and destructive of good morals. The court held it had no such power. The Justices of the Maine Supreme Court in an opinion reported in 103 _Maine_ 508 stated the principle as follows: "It is for the legislature to determine from time to time the occasion and what laws are necessary or expedient for the defense and benefit of the people; and however inconvenienced, restricted, or even damaged particular persons and corporations may be, such general laws are to be held valid unless there can be pointed out some provision in the State or United States Constitution which clearly prohibits them." Further, it is a maxim of the judiciary, from the beginning and now, that no statute should be refused effect unless clearly contrary to some provision of the constitution,--unless the conflict is evident beyond a reasonable doubt. This is a maxim, a canon of interpretation, that courts always have in mind and apply in considering the question of the constitutionality of a statute. Thus scrupulous are the courts to keep within their proper sphere, to respect the limits of their powers. If the legislatures would be equally scrupulous, would themselves refrain from infringing on those rights and liberties of the citizen guaranteed by the constitution, there would be less restriction, less friction, less turmoil, less need of the judicial check, less injustice. But the complaints against the courts are not all because of their holding statutes unconstitutional. Many have felt that courts sometimes erred in having too much respect for the legislative power and because of that respect have allowed constitutional rights and liberties to be sacrificed at the behest of majorities and often at the behest of active, interested minorities more insistent than the inert majority. The decision of the United States Supreme Court in the _Charles River Bridge_ case, 11 _Peters_ 420, was mourned by such men as Webster, Kent, Story, and others as breaking down the safeguards of the constitution. The decision in the _Slaughter House_ cases was regarded by many able jurists as ignoring that provision of the XIVth amendment to the Federal Constitution forbidding any denial to any one of the equal protection of the laws. The _Elevator_ cases, holding that elevators were public utilities and therefore subject to public control as to charges for service, though the owners had no special franchise, no part of public power, are even now thought to have made a wide breach in the constitutional barriers against the invasion of private rights. The decision in the _Chinese Deportation_ cases, 149 U. S. 698, shocked the sense of justice of many. It was to the effect that Congress could empower the executive to arrest upon its own warrant any person it claimed to be an alien unlawfully residing in the United States and to deport him without trial, unless he could affirmatively prove to the satisfaction of a single judge (to be selected by the executive), and by a specified kind of evidence only, that he was not guilty, however ample and probative other evidence might be adduced and however impossible to produce the specified evidence. Justices Fuller, Field, and Brewer vigorously dissented on the ground that such action by the executive, though under the authority of Congress, was in violation of the constitutional guaranties against arrest without judicial warrant, against deprivation of liberty without trial by jury and due process of law. Justice Brewer after quoting Madison, that banishment is among the severest of punishments, went on to say: "But punishment implies a trial. 'No person shall be deprived of life, liberty or property without due process of law.' Due process of law requires that a man be heard before he is condemned, and both heard and condemned in the due and orderly procedure as recognized by the common law from time immemorial." In my research I have found more cases where it has seemed to me the courts have construed constitutional guaranties too strictly, than where they have construed them too liberally. The tendency has been rather away from the enforcement of constitutional guaranties and to allow legislative encroachments upon them. I regard this as a very dangerous tendency. Perhaps the encroachments have not been at first perceived, but I think courts should be vigilantly on the watch for them, otherwise individual rights guaranteed to the people by the constitution may be gradually weakened and finally destroyed. This duty of the courts was declared in the case of _Boyd_ v. _United States_, 116 _U. S._ 616 at page 641--where in refusing effect to a statute requiring the production of his books and papers by a defendant in proceedings for forfeiture, the court said: "Though the proceeding in question is devested of the aggravating effects of actual search and seizure, yet it contains their substance and essence, and effects their substantial purpose. It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy and leads to gradual depreciation of the right as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen and against any stealthy encroachments thereon. Their motto should be _obsta principiis_." A review of the cases in which the courts have been called upon to decide whether a statute breaks over the constitutional limitation will demonstrate to any dispassionate person that upon questions of expediency, of the general welfare, or even of justice, the judges rarely if ever oppose their opinion to that of the legislators. The courts do not obstruct the current of progress; they only keep it from overflowing its banks to the devastation of the constitutional rights of the people. CHAPTER IX THE NECESSITY OF MAINTAINING UNDIMINISHED THE CONSTITUTIONAL LIMITATIONS AND THE POWER OF THE COURTS TO ENFORCE THEM.--CONCLUSION Despite the lessons of history showing the need of specified limitations upon the legislative power to ensure personal liberty and justice, it is still urged by the impatient that this check upon legislative action should be removed, or at least that the legislature should itself be the judge of the constitutionality of its acts, and that the legislatures as the representatives of the people may be trusted to observe constitutional requirements and limitations. From the beginning, however, the people of this country have not fully trusted their legislatures. They have not only set bounds to legislative power, but within those bounds they have imposed in most instances the check of an executive veto. They have also complained of their legislatures far more loudly than they have of their courts, and latterly have subjected them to the initiative and referendum and in some instances to the recall. Perhaps the judgment of those urging that the legislature should be trusted not to trespass on the constitutional rights of the people may be enlightened by recalling some instances of legislative action upon constitutional questions left to its decision by the constitution itself. It is hardly necessary to cite instances of the abuse of this power in the matter of determining who are entitled to seats in the legislature. It is common knowledge that, in the past at least, both law and fact have often been over-ridden for partisan advantage. As an illustration of how far a legislature will sometimes go in this direction I may cite a recent instance in Maine. The constitution of that state provides (Art. IV, Pt. 3, Sec. 11) that "no person holding any office under the United States (post officers excepted) shall have a seat in either house of the legislature during his continuing in such office." This provision was in the original constitution of 1821, and until the legislative session of 1913 the exception of "post officers" was understood to refer to officers in the postal service and such officers often held seats in the legislature without question. In 1913, however, the House of Representatives held for awhile that the exception referred only to military officers of the United States stationed at military posts within the state, though no such officer had ever held a seat in the legislature. That legislatures are prone to disregard constitutional provisions is also manifest in the vast amount of special legislation enacted despite constitutional prohibitions of such legislation. There are also numerous instances where legislatures while perfunctorily heeding the letter of the constitution consciously violate its spirit and evade its requirements. In many states there is a constitutional provision that no legislative act shall become effective until after a specified time has elapsed from its enactment "except in cases of emergency," which emergency, however, is to be declared in the act itself. This provision, of course, is to give the people time to understand the statute and prepare to obey it. The word "emergency" in the exception implies a sudden, unexpected happening. It is defined in Webster as a "pressing necessity; an unforeseen occurrence or combination of circumstances which calls for immediate action or remedy." In Indiana in one legislative session, out of 200 acts, 155 were made to take effect at once by a recital that an emergency existed therefor. In Illinois a two-thirds vote of all the members elected to each house is required for the adoption of the emergency clause. Among the acts of the last session containing the emergency clause was one appropriating $600 for printing the report of a monument association. In Tennessee the exception was of cases where "the public welfare" required an earlier date. Out of 265 laws passed at one session 230 contained the declaration that the public welfare required their going into effect immediately. In Texas the constitution provides that no bill shall be passed until it has been read on three several days in each house and free discussion allowed thereon, but that "in cases of imperative public necessity four-fifths of the house may suspend the rule." Out of 118 laws passed at one session all but five contained the statement that "imperative public necessity" required suspension of the rule. Legislatures also seem prone to disregard the constitutional provision for the referendum despite the strong, explicit language of that provision. In California the constitutional provision is as follows: "No act shall go into effect until ninety days after the adjournment of the legislature which passed such act ... except urgency measures necessary for the immediate preservation of the public peace, health or safety, passed by a two-thirds vote of all the members elected to each house." Surely the language of the exception is strong and forceful. Two-thirds of all the members elected to each house must hold that the measure is urgent, not admitting of delay, that the public peace, health or safety, not the mere interests or convenience of individuals or localities, is threatened and that the danger is imminent, requiring immediate action. Among other instances, the legislature of California at its special session of 1911 adjudged an act to validate certain defective registrations of voters in some municipalities to be an urgency measure within the language of the exception; also an act to change the boundaries in a Reclamation District. Oregon has a similar constitutional requirement and exception which its legislature does not always observe. At the session of 1911, among other cases the legislature adjudged an act authorizing a county to levy a tax for advertising the county's resources to be within the exception; also an act dividing a road district; but an act appropriating money to guard against the bubonic plague was not declared to be within the exception. In Oklahoma with a similar constitutional provision and exception, the legislature seems to have run riot. At the session of 1910 a very large proportion, if not a majority, of the statutes were adjudged to be within the exception. Among them was an act to pay the mileage and per diem of the members; an act providing stenographers for the Supreme Court; an act authorizing the sale of four tracts of land at public sale; an act to pay J. J. O'Rourke $238.10 for room rent. On the other hand, an act to reimburse the Governor $5000 expended by him for state purposes, and an act to reimburse a sheriff $4000 expended by him in the support of state prisoners were not so considered. True, Oklahoma is a new and radical state, but let us turn to the extreme east, to Maine with its heritage of law-abiding traditions from the parent state of Massachusetts. Maine has also adopted the referendum in language similar to that in the California constitution, including the exception. The state had got along quite comfortably without making Lincoln's birthday a legal holiday, but in 1909 the legislature awoke to the imminent danger to the public peace, health or safety of the state in longer delay and so established such a holiday at once without according to the people their right of review. The town of Eden, in which is situated Bar Harbor, a summer resort, had by vote for sometime excluded automobiles without any apparent danger to the public peace, health or safety, but at its last session in 1913 the legislature by a two-thirds vote of all the members elected to each house adjudged that the public peace, health or safety would be imperiled by postponing for ninety days the operation of an act authorizing a repeal of the vote. In all the instances cited, which are but few out of many, it is difficult to see how the ninety days' postponement of the operation of the acts cited could imperil the peace, health or safety of the public, however much it might inconvenience or annoy individuals or localities. These instances should, however, throw considerable doubt upon the proposition that the constitutional rights of the people are safe in the hands of the legislative department without the check of the judiciary. I have somewhere seen the statement that during recent years upwards of 500 acts of federal and state legislation have been held by the courts to be in violation of some constitutional provision, and that this fact should arouse the people to put some check on such exercise of the judicial power. On the contrary, it should arouse the people to insist on the retention of that power, and to elect wiser legislators who will more faithfully respect their oaths to observe constitutional limitations. But another and different proposition is urged upon us. It is not to leave the legislature without check upon the tendency to disregard constitutional limitations upon its power, but to subject the judicial check itself to reversal by a majority of that part of the electorate choosing to act on the matter. It is proposed that whenever a court of last resort shall adjudge that a statute trespasses upon the reserved constitutional rights of the individual, an appeal may be taken direct to the electorate, and that if a majority of those choosing to vote on the question desire the statute to stand, the constitution shall thereafter be held to be amended to that extent. It is submitted that such a procedure would destroy all constitutional guaranties, no matter what safeguards are attempted. Is there any assurance that such a majority would be more considerate of the individual's right to life, liberty, and property than their representatives whom they have selected or should have selected for their virtue and wisdom, and who are sworn, as well as the judges, to respect constitutional guaranties? Under the present procedure for amendment to constitutions, propositions for amendment are first considered and debated face to face in a legislature or constitutional convention by representatives of the people, and cannot be submitted to the people until after opportunity for full and free discussion by their representatives, and the people themselves have thereby been more or less prepared for its consideration. Even under this procedure, amendments have been adopted that the people have afterward regretted. There is now much agitation for the "short ballot," for restoring to the chief executive the power of appointment of important officials, a power at first possessed by him, but taken away by later constitutional amendments. The adoption of the "initiative and referendum" has not produced the beneficial results expected. It is found that the initiative sometimes produces defective, unworkable statutes, and that the referendum can be used to delay and even veto expedient legislation. Under the proposed procedure the questions whether the constitution should be amended and as to the nature of the amendment are sprung upon the people without this preliminary examination, debate and approval by their chosen representatives, and this often, if not always, in times of popular excitement. With such a procedure I can see no more stability of right, no more security for justice, than under any unlimited, absolute government. How unstable popular sentiment may be at times may be seen in the classic example of the citizens of Rome applauding Marius and Sulla in turn with equal fervor, and in the lesser and very recent example of the voters of the city of Seattle, who elected a mayor, then soon recalled him, and but little later re-elected him by a larger majority than before. Constitutions to be of any value as bulwarks of liberty should not be immediately changeable with the popular sentiment of the day, but slowly and only after long reflection and discussion. They should contain only the results of long thought and long experience. Legislation is ever active, ever moving this way and that way, ever experimenting, enacting new statutes and amending and repealing old ones, now imposing fetters on individual liberty, now striking them off and perhaps imposing others. Even in England and America, where personal liberty of action is most prized, time was when statutes were enacted almost putting people and business in strait-jackets. In English Norfolk as late as Henry VIII's time no one was to "dye, shear or calender" cloth except in the town of Norwich; and no one in the northern counties was to make "worsted coverlets" except in the city of York. In the reign of Elizabeth a statute was passed forbidding the eating of meat on Wednesday and Saturdays and this not on the score of health or religion but avowedly to increase the price of fish. Statutes fixing the weight and price of loaves of bread and the size and price of a glass of ale were not formally repealed till 1824. The famous Statute of Laborers forbade laboring men to ask or receive more than a prescribed low sum for their labor and also forbade their moving about seeking employment. The statutes against forestalling, regrating, and engrossing were not formally repealed until 1844. In early times in New England also, statutory attempts were made to fix the price of various commodities and the wages of various kinds of workmen. Men were fined for accepting higher than the prescribed wages. The Sunday laws in some places forbade walking about on Sunday except "reverently to go to and return from meeting." Everywhere was the ever present tendency of the legislative power to invade and direct every function of society,--social, religious, political, and economical. It should be noted that all these and similar statutes were under governments unrestrained by written constitutions and bills of right enforced by an independent judiciary. Though from time to time many restrictive statutes have been modified and many repealed, other restrictive statutes have been enacted. Today the same process is going on. While now and then restrictions and embargoes of longer or shorter standing are removed, there is still the same tendency to enact other restrictions and prohibitions. At every session of Congress and of the state legislatures measures are constantly proposed hampering in some way the freedom of the citizen in his occupation, in his pursuit of happiness. Demands are being made upon the legislative department by one class or interest for legislation to restrain other classes or interests, but for exemption for itself. In earlier times there were statutes fixing a maximum wage for labor, and though these proved ineffectual it is now proposed to fix a minimum wage, even though it should prove to be much more than the labor is worth. There are also proposed, and in many instances enacted, statutes restricting the freedom of the workman as to his output, of the employer as to his direction of his business. The natural activities of men are sought to be hampered and handicapped in vexatious ways. In illustration, I quote the following from the "Boston Herald" of June 5, 1914: "Twenty-five states and the United States itself forbid any discrimination by an employer against union men. Utah alone has a law to protect the non-union men from organized discrimination of union labor to drive him from his trade. Several of our states require that all public printing shall bear the union label. One extends that rule to all stationery. Twelve states require employers advertising for help to mention in the advertisement the existence of a strike. The Minnesota statute provides that, per contra, no employer shall require any statement from a person seeking employment as to his participation in a strike. Eight states have enacted statutes exempting labor organizations from their respective anti-trust laws. The unscrupulous employer may yet find the labor union the best means of throttling his competitors and securing a monopoly." There seems at times to be a frenzy for such legislation. Only a vivid imagination can adequately picture what might result if Congress and the state legislatures, or the inconstant majority of the electorate, were freed from all constitutional limitations or from the check of an independent judiciary. Though Great Britain, our mother country, has no written constitution and no judiciary empowered to enforce its limitations, it is the happy possessor of a practically homogeneous people of the Anglo-Saxon race, little affected by immigration, and imbued for centuries with a deep regard for personal liberty and private rights. Yet, even there today, statutes are demanded and sometimes enacted in derogation of them. In this country the population as the result of great immigration is more heterogeneous. It comprises races and peoples of diverse temperaments, of diverse experiences, of diverse traditions, many unschooled in self-government and lacking in that traditional reverence for liberty and order so characteristic of the Teutonic races. We even find some classes openly declaring that if they can get possession of the government they will exploit the rest of the people for their own benefit. They essay also to bargain their votes for special legislation in their favor at the expense of the people at large and without regard to the principles of equality of right. With such a population with its universal suffrage, were it not for our written constitutions with their Bills of Rights and with an independent judiciary to guard them, there would be no security here for personal liberty and rights. We should be in the condition of the people of France as depicted by Wm. S. Lilly in his recent book, "The New France." He wrote: "It is now more than a century since the principles of 1789 were formulated there. But in no country, not even in Russia, is individual freedom less. The state is as ubiquitous and as autocratic as under the worst Bourbon or Oriental despots. Nowhere is its hand so heavy upon the subject in every department of human life. Nowhere is the negation of the value and of the rights of personal independence more absolute, more complete, and more effective." Yet France is a republic with manhood suffrage and with an elective legislature. But its courts are not vested with any power to conserve any rights of the people against legislative caprice. CONCLUSION The thesis I have endeavored to support in these lectures, so far as I have a thesis, is this: (1) that, after all, human justice consists in securing to each individual as much liberty of action in the exercise of his physical and mental powers and as much liberty to enjoy the fruits of such action as is consistent with like liberty for other individuals, and with such restrictions only as are necessary for the welfare of society as a whole without discrimination for or against any individual; and (2) that that justice is more firmly secured by a government with a division of powers, with a written constitution excluding from governmental interference such personal rights as long experience has shown to be necessary both for the happiness and efficiency of the individual subject and for the welfare and efficiency of all; and (3) finally with an independent judiciary to defend those rights when assailed, as they often have been, and will be, by impatient and changeable majorities. It may be admitted that the courts sometimes err in their interpretation of the constitution and the laws, since judges, however carefully selected, are but men; but there must be somewhere in the body politic of a free state some body of men with the power of authoritative interpretation of the fundamental law as well as other laws. Does earlier history or later experience point to any better equipped, more stable, more safe tribunal? Should not the people endeavor to raise rather than lower the position of the courts; to conserve rather than impair that freedom, impartiality, and independence of the judges declared by the people of Massachusetts in their Declaration of Rights, after years of galling experience of the contrary, to be "essential to the preservation of every individual, his life, liberty, property and character"? Are not they the reactionaries who, despite the lessons of history, would revert to the days of a dependent, recallable, and hence timid judiciary? But justice is not fully and certainly secured by the maintenance of particular political institutions, however excellent. Political institutions are not self-acting. They are only instrumentalities for the action of society. They are not only to be established and maintained; they are to be administered, and the best institutions may be maladministered. Even under such a system of government as I have endeavored to show to be the best yet devised to secure justice, injustice is still often suffered by the individual or by society. Oppressive statutes within the legislative power are too readily enacted. Abuses in administration are too long permitted to exist. The only remedy for these is a more enlightened public opinion, a wider diffusion of the spirit of impartiality, a greater realization of the right and need of every person to life, liberty, and the results of his industry and economy. Nor are the judgments of our courts always righteous. Some of the instances of unrighteous judgments result from failure to ascertain and apply the truth as to the facts of the case; some from errors in judgment; some from lack of firmness in judges in enforcing the known rights of the individual on the one hand, or those of society on the other; and perhaps a very few from incompetency or corruption. These causes can be removed to a large extent, by a more rigid insistence on skill, ability, industry, learning, and courage on the part of those assuming to administer justice as attorneys and counselors. The same insistence in the selection of judges will lessen the injustice resulting from their errors in judgment and from their lack of firmness. There is yet another cause of injustice, the delay and expense in obtaining even righteous judgments. It is an axiom, that justice delayed is justice denied. This delay and expense are often charged against the courts and judges, as if they had full control over judicial procedure. It is not the judges but the legislature that shapes the judicial system and prescribes the judicial procedure, so far as they are not fixed by the constitution. It is not the courts but the legislatures that provide for so many appeals and allow so many stays and consequent delays. Judges and lawyers the country over are urging a more simplified, a more speedy, and less expensive procedure. They are also urging the establishment of more courts with more judges to cope with the constantly increasing litigation, in order that the wrongs against the individual and the wrongs against society may be redressed with a minimum of delay and cost. It is the legislatures that hesitate and often it is the legislatures that tie the hands of the judges. In some states it is sought to deprive the judges of their proper influence in jury trials. In some states it is even sought to prevent them from saying more than yes or no to proposed instructions to a jury. In many states nearly the whole matter of procedure, its various steps, are fixed by statute and become difficult of improvement. If courts could have more power and the legislatures would interfere less in matters of procedure, I am sure the cause of justice would be better served. In conclusion, perfect justice may not be attainable by us imperfect men. As said by Addison, "omniscience and omnipotence are requisite for its full attainment." Yet it is our duty and especially the duty of those of the legal profession to attain to such approximation as may be possible. No more noble work can engage our powers; no greater service can be rendered mankind. I do not except the endowment of schools, colleges, libraries, and the like, nor the endowment of hospitals and other charitable institutions. Great as are the virtues of charity, benevolence, philanthropy, piety and the like, justice is a yet greater virtue. To quote Addison again, "There is no virtue so truly great and godlike as justice"; and in the words of Daniel Webster's eulogy: "Whoever labors on this edifice of justice, clears its foundations, strengthens its pillars, adorns its entablatures, or contributes to raise its august dome still higher in the skies, connects himself in name, fame, and character with that which is, and must be, as durable as the frame of human society." PUBLISHED ON THE FOUNDATION ESTABLISHED IN MEMORY OF HENRY WELDON BARNES OF THE CLASS OF 1882, YALE COLLEGE STORRS LECTURES Published by Yale University Press THE REFORM OF LEGAL PROCEDURE. By MOORFIELD STOREY. Price $1.35 net delivered. THE JUDICIARY AND THE PEOPLE. By FREDERICK N. JUDSON. Price $1.35 net delivered. CONCERNING JUSTICE. By LUCILIUS A. EMERY. Price $1.15 net delivered. _Uniform in style with the Storrs Lectures_ INTERNATIONAL ARBITRATION AND PROCEDURE. By ROBERT C. MORRIS, with a foreword by PRESIDENT TAFT. Price $1.35 net delivered. 
32168	----	AN INTRODUCTION TO THE PHILOSOPHY OF LAW THE ADDRESSES CONTAINED IN THIS BOOK WERE DELIVERED IN THE WILLIAM L. STORRS LECTURE SERIES, 1921, BEFORE THE LAW SCHOOL OF YALE UNIVERSITY, NEW HAVEN, CONNECTICUT An Introduction to the Philosophy of Law BY ROSCOE POUND NEW HAVEN: YALE UNIVERSITY PRESS LONDON: HUMPHREY MILFORD OXFORD UNIVERSITY PRESS COPYRIGHT, 1922, BY YALE UNIVERSITY PRESS PRINTED IN THE UNITED STATES OF AMERICA First Published, May, 1922. Second Printing, December, 1924. Third Printing, May, 1925. Fourth Printing, April, 1930. TO JOSEPH HENRY BEALE IN GRATEFUL ACKNOWLEDGMENT OF MANY OBLIGATIONS The present volume is the second work published under the imprint of the Yale University Press in memory of Arthur P. McKinstry, who died in New York City, July 21, 1921. Born in Winnebago City, Minnesota, on December 22, 1881, he was graduated from Yale College in 1905, and in 1907 received the degree of LL.B. _magna cum laude_ from the Yale Law School, graduating at the head of his class. Throughout his career at Yale he was noted both for his scholarship and for his active interest in debating, which won for him first the presidency of the Freshman Union and subsequently the presidency of the Yale Union. He was also Class Orator in 1905, and vice-president of the Yale Chapter of Phi Beta Kappa. Following his graduation from the School of Law he entered upon the practice of his profession in New York City and early met with the success anticipated for him by his friends,--his firm, of which he was the senior member, being recognized at the time of his death as among the most prominent of the younger firms in the city. He was counsel for the Post-Graduate Hospital of New York, the Heckscher Foundation for Children, of which he was also a trustee, and from 1912 to 1914 served as associate counsel to the Agency of the United States in the American and British Claims Arbitration. By his untimely death the bar of the City of New York lost a lawyer outstanding for his ability, common sense, conscientiousness, and high sense of justice; and Yale University lost an alumnus of whom she was proud, who gave freely of his time and thought to his class of 1905, to the development of the Yale School of Law, and to the upbuilding of the Yale University Press, which he served as counsel. Preface This book is a written version of lectures delivered before the Law School of Yale University as Storrs Lectures in the school year 1921-1922. A metaphysician who had written on the secret of Hegel was congratulated upon his success in keeping the secret. One who essays an introduction to the philosophy of law may easily achieve a like success. His hearers are not unlikely to find that he has presented not one subject but two, presupposing a knowledge of one and giving them but scant acquaintance with the other. If he is a philosopher, he is not unlikely to have tried a highly organized philosophical apparatus upon those fragments of law that lie upon the surface of the legal order, or upon the law as seen through the spectacles of some jurist who had interpreted it in terms of a wholly different philosophical system. Looking at the list of authorities relied upon in Spencer's Justice, and noting that his historical legal data were taken from Maine's Ancient Law and thus came shaped by the political-idealistic interpretation of the English historical school, it is not difficult to perceive why positivist and Hegelian came to the same juristic results by radically different methods. On the other hand, if he is a lawyer, he will very likely have been able to do no more than attempt none too intelligently to work with the complicated and delicate engines of others upon the toughest and most resistant of legal materials. Until some Anglo-American jurist arises with the universal equipment of Josef Kohler the results of common-law incursions into philosophy will resemble the effort of the editorial writer who wrote upon Chinese Metaphysics after reading in the Encyclopædia Britannica under China and Metaphysics and combining his information. Yet such incursions there must be. Philosophy has been a powerful instrument in the legal armory and the times are ripe for restoring it to its old place therein. At least one may show what philosophy has done for some of the chief problems of the science of law, what stands before us to be done in some of the more conspicuous problems of that science today in which philosophy may help us, and how it is possible to look at those problems philosophically without treating them in terms of the eighteenth-century natural law or the nineteenth-century metaphysical jurisprudence which stand for philosophy in the general understanding of lawyers. ROSCOE POUND. Harvard Law School, October 25, 1921. Contents I. The Function of Legal Philosophy 15 II. The End of Law 59 III. The Application of Law 100 IV. Liability 144 V. Property 191 VI. Contract 236 Bibliography 285 Index 309 I The Function of Legal Philosophy For twenty-four hundred years--from the Greek thinkers of the fifth century B. C., who asked whether right was right by nature or only by enactment and convention, to the social philosophers of today, who seek the ends, the ethical basis and the enduring principles of social control--the philosophy of law has taken a leading rôle in all study of human institutions. The perennial struggle of American administrative law with nineteenth-century constitutional formulations of Aristotle's threefold classification of governmental power, the stone wall of natural rights against which attempts to put an end to private war in industrial disputes thus far have dashed in vain, and the notion of a logically derivable super-constitution, of which actual written constitutions are faint and imperfect reflections, which has been a clog upon social legislation for a generation, bear daily witness how thoroughly the philosophical legal thinking of the past is a force in the administration of justice of the present. Indeed, the everyday work of the courts was never more completely shaped by abstract philosophical ideas than in the nineteenth century when lawyers affected to despise philosophy and jurists believed they had set up a self-sufficient science of law which stood in no need of any philosophical apparatus. In all stages of what may be described fairly as legal development, philosophy has been a useful servant. But in some it has been a tyrannous servant, and in all but form a master. It has been used to break down the authority of outworn tradition, to bend authoritatively imposed rules that admitted of no change to new uses which changed profoundly their practical effect, to bring new elements into the law from without and make new bodies of law from these new materials, to organize and systematize existing legal materials and to fortify established rules and institutions when periods of growth were succeeded by periods of stability and of merely formal reconstruction. Such have been its actual achievements. Yet all the while its professed aim has been much more ambitious. It has sought to give us a complete and final picture of social control. It has sought to lay down a moral and legal and political chart for all time. It has had faith that it could find the everlasting, unchangeable legal reality in which we might rest, and could enable us to establish a perfect law by which human relations might be ordered forever without uncertainty and freed from need of change. Nor may we scoff at this ambitious aim and this lofty faith. They have been not the least factors in the power of legal philosophy to do the less ambitious things which in their aggregate are the bone and sinew of legal achievement. For the attempt at the larger program has led philosophy of law incidentally to do the things that were immediately and practically serviceable, and the doing of these latter, as it were _sub specie aeternitatis_, has given enduring worth to what seemed but by-products of philosophical inquiry. Two needs have determined philosophical thinking about law. On the one hand, the paramount social interest in the general security, which as an interest in peace and order dictated the very beginnings of law, has led men to seek some fixed basis of a certain ordering of human action which should restrain magisterial as well as individual wilfulness and assure a firm and stable social order. On the other hand, the pressure of less immediate social interests, and the need of reconciling them with the exigencies of the general security, and of making continual new compromises because of continual changes in society, has called ever for readjustment at least of the details of the social order. It has called continually for overhauling of legal precepts and for refitting of them to unexpected situations. And this has led men to seek principles of legal development by which to escape from authoritative rules which they feared or did not know how to reject, but could no longer apply to advantage. These principles of change and growth, however, might easily prove inimical to the general security, and it was important to reconcile or unify them with the idea of a fixed basis of the legal order. Thus the philosopher has sought to construct theories of law and theories of lawmaking and has sought to unify them by some ultimate solving idea equal to the task of yielding a perfect law which should stand fast forever. From the time when lawgivers gave over the attempt to maintain the general security by belief that particular bodies of human law had been divinely dictated or divinely revealed or divinely sanctioned, they have had to wrestle with the problem of proving to mankind that the law was something fixed and settled, whose authority was beyond question, while at the same time enabling it to make constant readjustments and occasional radical changes under the pressure of infinite and variable human desires. The philosopher has worked upon this problem with the materials of the actual legal systems of the time and place, or with the legal materials of the past upon which his generation had built. Hence in closer view philosophies of law have been attempts to give a rational account of the law of the time and place, or attempts to formulate a general theory of the legal order to meet the needs of some given period of legal development, or attempts to state the results of the two former attempts universally and to make them all-sufficient for law everywhere and for all time. Historians of the philosophy of law have fixed their eyes chiefly on the third. But this is the least valuable part of legal philosophy. If we look at the philosophies of the past with our eyes upon the law of the time and place and the exigencies of the stage of legal development in which they were formulated, we shall be able to appreciate them more justly, and so far as the law of the time and place or the stage of legal development was similar to or different from the present to utilize them for the purposes of today. We know Greek law from the beginnings of a legal order as pictured in the Homeric poems to the developed commercial institutions of the Hellenistic period. In its first stage the kings decide particular causes by divine inspiration. In a second stage the customary course of decision has become a tradition possessed by an oligarchy. Later, popular demand for publication results in a body of enactment. At first enactments are no more than declaratory. But it was an easy step from publication of established custom to publication of changes as if they were established custom and thus to conscious and avowed changes and intentional new rules through legislation. The law of Athens in the fifth and fourth centuries B. C. was a codified tradition eked out by legislation and individualized in its application through administration of justice by large popular assemblies. Thus in spite of formal reduction to writing it preserved the fluidity of primitive law and was able to afford a philosophy for Roman law in its stage of equity and natural law--another period of legal fluidity. The development of a strict law out of codified primitive materials, which in Rome happily preceded the stage of equity and natural law, did not take place in the Greek city. Hence the rules of law were applied with an individualized equity that reminds us of the French _droit coutumier_--a mode of application which, with all its good points, must be preceded by a body of strict law, well worked out and well understood, if its results are to be compatible with the general security in a complex social order. In Athens of the classical period the word [Greek: nómos], meaning both custom and enacted law as well as law in general, reflected the uncertainty with respect to form and the want of uniformity in application, which are characteristic of primitive law, and invited thought as to the reality behind such confusion. We may understand the materials upon which Greek philosophers were working if we look at an exhortation addressed by Demosthenes to an Athenian jury. Men ought to obey the law, he said, for four reasons: because laws were prescribed by God, because they were a tradition taught by wise men who knew the good old customs, because they were deductions from an eternal and immutable moral code and because they were agreements of men with each other binding them because of a moral duty to keep their promises. It was not long since that men had thought of legal precepts as divinely revealed, nor was it long since that law had been a tradition of old customs of decision. Philosophers were seeking a better basis for them in eternal principles of right. In the meantime in political theory, at least, many of them were the agreements of Athenian citizens as to how they should conduct themselves in the inevitable clashes of interests in everyday life. What was needed above all was some theory of the authority of law which should impose bonds of reason upon those who enacted, upon those who applied and upon those who were subject to law in such an amorphous legal order. A sure basis of authority resting upon something more stable than human will and the power of those who govern to impose their will for the time being was required also for the problem of social control in the Greek city-state. In order to maintain the general security and the security of social institutions amid a strife of factions in a society organized on the basis of kinship and against the wilfulness of masterful individuals boasting descent from gods, in order to persuade or coerce both the aristocracy and the mass of the low born to maintain in orderly fashion the social _status quo_, it would not do to tell them that law was a gift of God, nor that what offended the aristocrat as a radical bit of popular legislation enacted at the instance of a demagogue was yet to be obeyed because it had been so taught by wise men who knew the good old customs, nor that Demos chafing under some item of a class-possessed tradition was bound by it as something to which all citizens had agreed. The exigencies of the social order called for a distinction between [Greek: nómos] and [Greek: tà nomizómena]--between law and rules of law. The Minos, which if not actually a dialogue of Plato's seems clearly Platonic and very close to Plato in time, is taken up with this distinction and gives us a clue to the juristic problems of the time. Another example may be seen in Aristotle's well-known discussion in the Nicomachean Ethics. It is significant that Greek thinkers always couple custom and enactment; things which today we contrast. These were the formal bases of legal authority. So Aristotle considers, not natural _law_ and positive _law_, but what is just in itself--just by nature or just in its idea--and what derives its sole title to be just from convention or enactment. The latter, he says, can be just only with respect to those things which by nature are indifferent. Thus when a newly reconstituted city took a living Spartan general for its eponymus, no one was bound by nature to sacrifice to Brasidas as to an ancestor, but he was bound by enactment and after all the matter was one of convention, which, in a society framed on the model of an organized kindred, required that the citizens have a common heroic ancestor, and was morally indifferent. The distinction was handed down to modern legal science by Thomas Aquinas, was embodied in Anglo-American legal thought by Blackstone, and has become staple. But it is quite out of its setting as a doctrine of _mala prohibita_ and _mala in se_. An example of the distinction between law and rules of law has become the basis of an arbitrary line between the traditionally anti-social, penalized by the common law, and recently penalized infringements of newly or partially recognized social interests. Although the discrimination between what is just and right by nature and what is just because of custom or enactment has had a long and fruitful history in philosophical jurisprudence and is still a force in the administration of justice, I suspect that the permanent contribution of Greek philosophy of law is to be found rather in the distinction between law and rules of law, which lies behind it and has significance for all stages of legal development. Roman lawyers came in contact with philosophy in the transition from the strict law to the stage of equity and natural law, and the contact had much to do with enabling them to make the transition. From a purely legal standpoint Greek law was in the stage of primitive law. Law and morals were still largely undifferentiated. Hence Greek philosophical thinking of a stage of undifferentiated law and morals lent itself to the identification of the legal and the moral in juristic thinking which was characteristic of the classical Roman law. But the strict law obviously was indifferent to morals and in many vital points was quite at variance with the moral ideas of the time. The Greek distinction of just by nature and just by convention or enactment was suggested at once by such a situation. Moreover the forms of law at the end of the Republic and at the beginning of the Empire invited a theory of law as something composite, made up of more than one type of precept and resting immediately on more than one basis of authority. Cicero enumerates seven forms of law. Three of these are not heard of thereafter in Roman juristic writing. Evidently already in Cicero's time they belonged to the past and had ceased to be effective forms of the actual law. The four remaining, namely, statutes, resolutions of the senate, edicts of the magistrates, and the authority of those learned in the law, come to three--legislation, administrative edicts, and juristic reasoning on the basis of the legal tradition. And these correspond to the three elements which made up the law. First, there was the _ius ciuile_: the Twelve Tables, subsequent legislation, interpretation of both, and the traditional law of the city. Second, there was the mass of rules, in form largely procedural, which was contained in the edicts. The growing point of the law had been here and to some extent growth was still going on through this means. Indeed this part of the law reached its final form under Hadrian. Third, there were the writings of the jurisconsults. The growing point of the law had begun to be here and this was the most important form of law in the classical period from Augustus to the third century. This part of the law got its final form in the Digest of Justinian. Of the three elements, the first was thought of originally as declared and published custom. Later it was thought of as resting on the authority of the state. It was obviously local and peculiar to Rome. In form it rested on the legislative power of the Roman people, supplemented by a mere interpretation of the legislative command with only the authority of customary acceptance. In Greek phrase it rested on convention and enactment. The second purported to be the rules observed by civilized peoples, and on points of commercial law may well have been an approximation thereto. Apart from this, however, according to ancient ideas of personal law, the rules which obtained among civilized peoples were eminently a proper law to apply between citizen and non-citizen. In Greek phrase it was law by convention. The basis of the third was simply reason. The jurisconsult had no legislative power and no _imperium_. The authority of his _responsum_, as soon as law ceased to be a class tradition, was to be found in its intrinsic reasonableness; in the appeal which it made to the reason and sense of justice of the _iudex_. In Greek phrase, if it was law, it was law by nature. As the rise of professional lawyers, the shifting of the growing point of law to juristic writing and the transition from the law of a city to a law of the world called for a legal science, there was need of a theory of what law was that could give a rational account of the threefold body of rules in point of origin and authority, which were actually in operation, and would at the same time enable the jurists to shape the existing body of legal precepts by reason so as to make it possible for them to serve as law for the whole world. The perennial problem of preserving stability and admitting of change was presented in an acute form. Above all the period from Augustus to the second quarter of the third century was one of growth. But it was revolutionary only if we compare the law at the end of the period with the law of the generation before Cicero. The jurisconsults were practical lawyers and the paramount interest in the general security was ever before their eyes. While as an ideal they identified law with morals, they did not cease to observe the strict law where it was applicable nor to develop its precepts by analogy according to the known traditional technique when new phases of old questions came before them. Hence what to the Greeks was a distinction between right by nature and right by convention or enactment became to them a distinction between law by nature and law by custom or legislation. The Latin equivalent of [Greek: to dikaion] (the right or the just) became their word for law. They said _ius_ where Cicero said _lex_. And this convenient ambiguity, lending itself to identification of what ought to be and what is, gave a scientific foundation for the belief of the jurisconsults that when and where they were not bound by positive law they had but to expound the reason and justice of the thing in order to lay down the law. It must be borne in mind that "nature" did not mean to antiquity what it means to us who are under the influence of the idea of evolution. To the Greek, it has been said, the natural apple was not the wild one from which our cultivated apple has been grown, but rather the golden apple of the Hesperides. The "natural" object was that which expressed most completely the idea of the thing. It was the perfect object. Hence the natural law was that which expressed perfectly the idea of law and a rule of natural law was one which expressed perfectly the idea of law applied to the subject in question; the one which gave to that subject its perfect development. For legal purposes reality was to be found in this ideal, perfect, natural law, and its organ was juristic reason. Legislation and the edict, so far as they had any more than a positive foundation of political authority, were but imperfect and ephemeral copies of this jural reality. Thus the jurists came to the doctrine of the _ratio legis_, the principle of natural law behind the legal rule, which has been so fruitful both of practical good and of theoretical confusion in interpretation. Thus also they came to the doctrine of reasoning from the analogy of all legal rules, whether traditional or legislative, since all, so far as they had jural reality, had it because and to the extent that they embodied or realized a principle of natural law. Natural law was a philosophical theory for a period of growth. It arose to meet the exigencies of the stage of equity and natural law, one of the great creative periods of legal history. Yet, as we have seen, even the most rapid growth does not permit the lawyer to ignore the demand for stability. The theory of natural law was worked out as a means of growth, as a means of making a law of the world on the basis of the old strict law of the Roman city. But it was worked out also as a means of directing and organizing the growth of law so as to maintain the general security. It was the task of the jurists to build and shape the law on the basis of the old local materials so as to make it an instrument for satisfying the wants of a whole world while at the same time insuring uniformity and predicability. They did this by applying a new but known technique to the old materials. The technique was one of legal reason; but it was a legal reason identified with natural reason and worked out and applied under the influence of a philosophical ideal. The conception of natural law as something of which all positive law was but declaratory, as something by which actual rules were to be measured, to which so far as possible they were to be made to conform, by which new rules were to be framed and by which old rules were to be extended or restricted in their application, was a powerful instrument in the hands of the jurists and enabled them to proceed in their task of legal construction with assured confidence. But the juristic empiricism by which the _ius ciuile_ was made into a law of the world needed something more than a theoretical incentive. It was a process of analogical development by extension here and restriction there, of generalization, first in the form of maxims and later by laying down broad principles, and of cautious striking out of new paths, giving them course and direction by trial and error. It was a process very like that by which Anglo-American judicial empiricism has been able to make a law of the world on the basis of the legal precepts of seventeenth-century England. Such a process required something to give direction to juristic reasoning, to give definite content to the ideal, to provide a reasonably defined channel for juristic thought. This need was met by the philosophical theory of the nature of things and of the law of nature as conformity thereto. In practice jurist-made and judge-made law have been molded consciously, or unconsciously, by ideas as to what law is for; by theories as to the end of law. In the beginnings of law men had no more ambitious conception than a peaceable ordering of society at any cost. But the Greeks soon got a better conception of an orderly and peaceable maintaining of the social _status quo_. When the theory of natural law is applied to that conception, we get the notion of an ideal form of the social _status quo_--a form which expresses its nature, a perfect form of the social organization of a given civilization--as that which the legal order is to further and maintain. Thus judge and jurist obtain a guide which has served them well ever since. They are to measure all situations by an idealized form of the social order of the time and place and are so to shape the law as to make it maintain and further this ideal of the social _status quo_. We shall meet this idea in various forms throughout the subsequent history of the philosophy of law. It constitutes the permanent contribution of Rome to legal philosophy. As soon as scientific legal development begins in the Middle Ages the law once more comes in contact with philosophy through the study of both in the universities. What was the need of the time which philosophy was called upon to satisfy? Following an era of anarchy and disunion and violence men desired order and organization and peace. They called for a philosophy that would bolster up authority and rationalize their desire to impose a legal yoke upon society. The period was one of transition from the primitive law of the Germanic peoples to a strict law, through reception of Roman law as authoritative legislation or through compilation of the Germanic customary law more or less after the Roman model, as in the north of France, or through declaration of the customary law in reported decisions of strong central courts, as in England. Thus it soon became a period of strict law. Scholastic philosophy, with its reliance upon dialectic development of authoritatively given premises, its faith in formal logic and its central problem of putting reason as a foundation under authority, responded exactly to these demands. It is no misnomer to style the commentators or post-glossators of the fourteenth and fifteenth centuries the "scholastic jurists." For it was in large part the philosophy that met the needs of the time so completely which enabled them to put the Roman law of Justinian in a form to be received and administered in the Europe of nine centuries later. While they made the gloss into law in place of the text and made many things over, as they had to be made over if they were to fit a wholly different social order, the method of dialectical development of absolute and unquestioned premises made it appear that nothing had been done but to develop the logical implications of an authoritative text. Men could receive the law of Bartolus so long as they believed it but the logical unfolding of the pre-existing content of the binding legislation of Justinian. It is interesting to note in Fortescue an application of this to the rules of the common law in its stage of strict law. He assumes that these rules are the principles of which he reads in the commentators on Aristotle and that they may be compared to the axioms of the geometrician. The time had not yet come to call rules or principles or axioms in question. The need was to rationalize men's desire to be governed by fixed rules and to reconcile, in appearance at least, the change and growth which are inevitable in all law with the need men felt of having a fixed, unchangeable, authoritative rule. The scholastic philosophy did notable service in these respects and, I venture to think, left as a permanent contribution to legal science the method of insuring certainty by logical development of the content of authoritatively defined conceptions. On the breakdown of the feudal social organization, the rise of commerce and the era of discovery, colonization and exploitation of the natural resources of new continents, together with the rise of nations in place of loose congeries of vassal-held territories, called for a national law unified within the national domain. Starkey proposed codification to Henry VIII and Dumoulin urged harmonizing and unifying of French customary law with eventual codification. The Protestant jurist-theologians of the sixteenth century found a philosophical basis for satisfying these desires of the time in the divinely ordained state and in a natural law divorced from theology and resting solely upon reason, reflecting the boundless faith in reason which came in with the Renaissance. Thus each national jurist might work out his own interpretation of natural law by dint of his own reason, as each Christian might interpret the word of God for himself as his own reason and conscience showed the way. On the other hand, the Catholic jurists of the Counter-Reformation found a philosophical basis for satisfying these same desires in a conception of natural law as a system of limitations on human action expressing the nature of man, that is, the ideal of man as a rational creature, and of positive law as an ideal system expressing the nature of a unified state. For the moment these ideas were put at the service of a growing royal authority and bore fruit in the Byzantine theory of sovereignty which became classical in public law. In private law they soon took quite another turn. For a new period of growth, demanded by the expansion of society and the breaking over the bonds of authority, was at hand to make new and wholly different demands upon philosophy. Glossators and commentators had made or shaped the law out of Roman materials for a static, locally self-sufficient, other-worldly society, revering authority because authority had saved it from what it feared, regarding chiefly the security of social institutions and negligent of the individual life because in its polity the individual lived his highest life in the life of another whose greatness was the greatness of those who served him. In the seventeenth and eighteenth centuries jurists were required to make or shape a law out of these medievalized Roman materials to satisfy the wants of an active and shifting, locally interdependent, this-worldly society, impatient of authority because authority stood in the way of what it desired, and jealously individualist, since it took free individual self-assertion to be the highest good. In England the strict law made for feudal England out of Germanic materials, sometimes superficially Romanized, was likewise to be made over to do the work of administering justice to a new world. A period of legal development resulted which is strikingly analogous to the classical period of Roman law. Once more philosophy took the helm. Once more there was an infusion into law of ideas from without the law. Once more law and morals were identified in juristic thinking. Once more men held as a living tenet that all positive law was declaratory of natural law and got its real authority from the rules of natural law which it declared. Once more juridical idealism led the jurist to survey every corner of the actual law, measuring its rules by reason and shaping, extending, restricting or building anew in order that the actual legal edifice might be a faithful copy of the ideal. But the theory of natural law, devised for a society organized on the basis of kinship and developed for a society organized on the basis of relations, did not suffice for a society which conceived of itself as an aggregate of individuals and was reorganizing on the basis of competitive self-assertion. Again the convenient ambiguity of _ius_, which could mean not only right and law but "a right," was pressed into service and _ius naturale_ gave us natural rights. The ultimate thing was not natural law as before, not merely principles of eternal validity, but natural rights, certain qualities inherent in man and demonstrated by reason, which natural law exists to secure and to which positive law ought to give effect. Later these natural rights came to be the bane of juristic thinking. Yet they achieved great things in their day. Under the influence of this theory jurists worked out a scheme of "legal rights" that effectively secures almost the whole field of individual interests of personality and individual interests of substance. It put a scientific foundation under the medieval scheme of the claims and duties involved in the relation of king to tenants in chief, out of which the judges had developed the immemorial rights of Englishmen, and enabled the common-law rights of Englishmen to become the natural rights of man, intrenched as such in our bills of rights. Thus it served as a needed check upon the exuberance of growth stimulated by the theory of natural law. It kept a certain needed rigidity in a time when law threatened to become wholly fluid. And this steadying influence was strengthened from another quarter. The Roman jurisconsult was teacher, philosopher and practitioner in one. As a lawyer he had the exigencies of the general security ever before him in that he felt the imperative need of being able to advise with assurance what tribunals would do on a given state of facts. The seventeenth- and eighteenth-century jurists were chiefly teachers and philosophers. Happily they had been trained to accept the Roman law as something of paramount authority and so were able to give natural law a content by assuming its identity with an ideal form of the law which they knew and in which they had been trained. As the Roman jurisconsult built in the image of the old law of the city, they built on idealized Roman lines. If Roman law could no longer claim to be embodied authority, they assumed that, corrected in its details by a juristic-philosophical critique, it was embodied reason. Both of these ideas, natural rights and an ideal form of the actual law of the time and place as the jural order of nature, were handed down to and put to new uses in the nineteenth century. In the growing law of the seventeenth and eighteenth centuries they were but guides to lead growth into definite channels and insure continuity and permanence in the development of rules and doctrines. Whether natural rights were conceived as qualities of the natural man or as deductions from a compact which expressed the nature of man, the point was, not that the jurist should keep his hands off lest by devising some new precept or in reshaping some old doctrine he infringe a fundamental right, but that he should use his hand freely and skilfully to shape rules and doctrines and institutions that they might be instruments of achieving the ideal of human existence in a "state of nature." For the state of nature, let us remember, was a state which expressed the ideal of man as a rational creature. If a reaction from the formal over-refinement of the eighteenth century came to identify this with a primitive simplicity, in juristic hands it was the simplicity of a rational ideal in place of the cumbrous complexity of legal systems which had become fixed in their ideas in the stage of the strict law. Thus Pothier, discussing the Roman categories of contract and rejecting them for the "natural" principle that man, as a moral creature, should keep his engagements, declares that the complex and arbitrary system of Roman law, made up of successive additions at different times to a narrow primitive stock of legally enforceable promises, is not adhered to because it is "remote from simplicity." Again the ideal form of the actual law, which gave content to natural law, was not an ideal form of historically found principles, constraining development for all time within historically fixed bounds, as in the nineteenth century, but an ideal form of the _ratio legis_--of the reason behind the rule or doctrine or institution whereby it expressed the nature of the rational human being guided only by reason and conscience in his relations with similar beings similarly guided. Attempts to fix the immutable part of law, to lay out legal charts for all time, belong to the transition to the maturity of law. The eighteenth-century projects for codification and the era of codification on the Continent, in which the results of two centuries of growth were put in systematic form to serve as the basis of a juristic new start, in form rested upon the theory of natural law. By a sheer effort of reason the jurist could work out a complete system of deductions from the nature of man and formulate them in a perfect code. Go to, let him do so! This was not the mode of thought of a period of growth but rather of one when growth had been achieved and the philosophical theory of a law of nature was called upon for a new kind of service. At the end of the eighteenth century Lord Kenyon had determined that "Mansfield's innovations" were not to go on. Indeed some of them were to be undone. Equity was soon to be systematized by Lord Eldon and to become "almost as fixed and settled" as the law itself. The absorption of the law merchant was complete in its main lines although in details it went on for two decades. Moreover the legislative reform movement which followed only carried into detail the ideas which had come into the law in the two preceding centuries. For a time the law was assimilating what had been taken up during the period of growth and the task of the jurist was one of ordering, harmonizing and systematizing rather than of creating. Likewise law had been codifying on the Continent. Down to the end of the nineteenth century the codes, whatever their date, in reality speak from the end of the eighteenth century and with few exceptions are all but copies of the French code of 1804. Where there were no codes, the hegemony of the historical school led to a movement back to the law of Justinian which would have undone much of the progress of the last centuries. The energies of jurists were turned for a time to analysis, classification and system as their sole task. Where codes obtained, analytical development and dogmatic exposition of the text, as a complete and final statement of the law, was to occupy jurists exclusively for the next hundred years. We may well think of this time, as it thought of itself, as a period of maturity of law. The law was taken to be complete and self-sufficient, without antinomies and without gaps, wanting only arrangement, logical development of the implications of its several rules and conceptions, and systematic exposition of its several parts. Legislation might be needed on occasion in order to get rid of archaisms which had survived the purgation of the two prior centuries. For the rest, history and analysis, bringing out the idea behind the course of development of legal doctrines and unfolding their logical consequences, were all the apparatus which the jurist required. He soon affected to ignore philosophy and often relegated it to the science of legislation, where within narrow limits it might still be possible to think of creating. Yet the nineteenth century was no more able to get on without philosophy of law than were its predecessors. In place of one universally recognized philosophical method we find four well-marked types. But they all come to the same final results, are marked by the same spirit and put the same shackles upon juristic activity. They are all modes of rationalizing the juristic desires of the time, growing out of the pressure of the interest in the general security by way of reaction from a period of growth and in the security of acquisitions and security of transactions in a time of economic expansion and industrial enterprise. In the United States, since the natural law of the eighteenth-century publicists had become classical, we relied largely upon an American variant of natural law. It was not that natural law expressed the nature of man. Rather it expressed the nature of government. One form of this variant was due to our doctrine that the common law of England was in force only so far as applicable to our conditions and our institutions. The attempt to put this doctrine philosophically regards an ideal form of the received common law as natural law and takes natural law to be a body of deductions from or implications of American institutions or the nature of our polity. But yesterday the Supreme Court of one of our states laid down dogmatically that primogeniture in estates tail (which by the way is still possible in one of the oldest of the original states) could not co-exist with "the axioms of the constitution" which guarantees to each state a republican form of government. More generally, however, the American variant of natural law grew out of an attempt at philosophical statement of the power of our courts with respect to unconstitutional legislation. The constitution was declaratory of principles of natural constitutional law which were to be deduced from the nature of free government. Hence constitutional questions were always only in terms questions of constitutional interpretation. They were questions of the meaning of the document, as such, only in form. In substance they were questions of a general constitutional law which transcended the text; of whether the enactment before the court conformed to principles of natural law "running back of all constitutions" and inherent in the very idea of a government of limited powers set up by a free people. Now that courts with few exceptions have given over this mode of thinking and the highest court in the land has come to apply the limitations of the fifth and fourteenth amendments as legal standards, there are some who say that we no longer have a constitutional law. For how can there be law unless as a body of rules declaring a natural law which is above all human enactment? The interpretation of a written instrument, no matter by whom enacted, may be governed by law, indeed, but can yield no law. Such ideas die hard. In the language of the eighteenth century, our courts sought to make our positive law, and in particular our legislation, express the nature of American political institutions; they sought so to shape it and restrain it as to make it give effect to an ideal of our polity. Later in the nineteenth century natural law as a deduction from American institutions or from "free government" gave way to a metaphysical-historical theory worked out in Continental Europe. Natural rights were deductions from a fundamental metaphysically demonstrable datum of individual free will, and natural law was an ideal critique of positive law whereby to secure these rights in their integrity. History showed us the idea of individual liberty realizing itself in legal institutions and rules and doctrines; jurisprudence developed this idea into its logical consequences and gave us a critique of law whereby we might be delivered from futile attempts to set up legal precepts beyond the necessary minimum for insuring the harmonious co-existence of the individual and his fellows. This mode of thought was well suited to a conception of law as standing between the abstract individual and society and protecting the natural rights of the former against the latter, which American law had derived from the seventeenth-century contests in England between courts and crown. It was easy to generalize this as a contest between the individual and society, and it became more easy to do so when the common-law rights of Englishmen secured by common-law courts against the crown had become the natural rights of man secured to individual men as against the state by the bills of rights. Others in England and America turned to a utilitarian-analytical theory. The legislator was to be guided by a principle of utility. That which made for the greatest total of individual happiness was to be the lawmaker's standard. The jurist was to find universal principles by analysis of the actual law. He had nothing to do with creative activity. His work was to be that of orderly logical development of the principles reached by analysis of what he found already given in the law and improvement of the form of the law by system and logical reconciliation of details. As it was assumed that the maximum of abstract individual free self-assertion was the maximum of human happiness, in the result the legislator was to be busied with formal improvement of the law and rendering it, as Bentham put it, more "cognoscible," while the jurist was exercising a like restricted function so far as he could work with materials afforded exclusively by the law itself. Not unnaturally metaphysical and historical and analytical jurists, at the end of the century, were quite willing to say that their several methods were not exclusive but were complementary. Toward the end of the last century a positivist sociological thinking tended to supersede the metaphysical-historical and the utilitarian-analytical. All phenomena were determined by inexorable natural laws to be discovered by observation. Moral and social and hence legal phenomena were governed by laws as completely beyond the power of conscious human control as the movements of the planets. We might discover these laws by observation of social phenomena and might learn to submit to them intelligently instead of rashly or ignorantly defying them. But we could hope to do no more. Except as he could learn to plot some part of the inevitable curve of legal development and save us from futile flyings in the face of the laws by which legal evolution was inevitably governed, the jurist was powerless. Many combined this mode of thought with or grafted it on the metaphysical-historical theory and fought valiantly against the social legislation of the last decade of the nineteenth century and the first decade of the present century with this reinforced juristic pessimism as a base. Superficially it appeared that the Greek idea of the naturally just, which in its Roman form of natural law and its eighteenth-century form of natural rights had made for a creative legal science as long as such a science had existed, had at length exhausted its possibilities. Today, however, we hear of a revival of natural law. Philosophy of law is raising its head throughout the world. We are asked to measure rules and doctrines and institutions and to guide the application of law by reference to the end of law and to think of them in terms of social utility. We are invited to subsume questions of law and of the application of law under the social ideal of the time and place. We are called upon to formulate the jural postulates of the civilization of the time and place and to measure law and the application of law thereby in order that law may further civilization and that the legal materials handed down with the civilization of the past may be made an instrument of maintaining and furthering the civilization of the present. We are told that observation shows us social interdependence through similarity of interest and through division of labor as the central fact in human existence and are told to measure law and the application of law functionally by the extent to which they further or interfere with this interdependence. For the era of legal self-sufficiency is past. The work of assimilating what had been received into the law from without during the period of equity and natural law has been done. The possibilities of analytical and historical development of the classical materials have been substantially exhausted. While jurists have been at these tasks, a new social order has been building which makes new demands and presses upon the legal order with a multitude of unsatisfied desires. Once more we must build rather than merely improve; we must create rather than merely order and systematize and logically reconcile details. One has but to compare the law of today on such subjects as torts, or public utilities or administrative law with the law of a generation ago to see that we are in a new stage of transition; to see that the juristic pessimism of the immediate past, which arose to save us from taking in more from without while what had been taken already remained undigested, will serve no longer; and to see that the jurist of tomorrow will stand in need of some new philosophical theory of law, will call for some new philosophical conception of the end of law and at the same time will want some new steadying philosophical conception to safeguard the general security, in order to make the law which we hand down to him achieve justice in his time and place. II The End of Law Making or finding law, call it which you will, presupposes a mental picture of what one is doing and of why he is doing it. Hence the nature of law has been the chief battleground of jurisprudence since the Greek philosophers began to argue as to the basis of the law's authority. But the end of law has been debated more in politics than in jurisprudence. In the stage of equity and natural law the prevailing theory of the nature of law seemed to answer the question as to its end. In the maturity of law the law was thought of as something self-sufficient, to be judged by an ideal form of itself, and as something which could not be made, or, if it could be made, was to be made sparingly. The idea of natural rights seemed to explain incidentally what law was for and to show that there ought to be as little of it as possible, since it was a restraint upon liberty and even the least of such restraint demanded affirmative justification. Thus, apart from mere systematic and formal improvement, the theory of lawmaking in the maturity of law was negative. It told us chiefly how we should not legislate and upon what subjects we should refrain from lawmaking. Having no positive theory of creative lawmaking, the last century was little conscious of requiring or holding a theory as to the end of law. But in fact it held such a theory and held it strongly. As ideas of what law is for are so largely implicit in ideas of what law is, a brief survey of ideas of the nature of law from this standpoint will be useful. No less than twelve conceptions of what law is may be distinguished. First, we may put the idea of a divinely ordained rule or set of rules for human action, as for example, the Mosaic law, or Hammurapi's code, handed him ready-made by the sun god, or Manu, dictated to the sages by Manu's son Bhrigu in Manu's presence and by his direction. Second, there is an idea of law as a tradition of the old customs which have proved acceptable to the gods and hence point the way in which man may walk with safety. For primitive man, surrounded by what seem vengeful and capricious powers of nature, is in continual fear of giving offence to these powers and thus bringing down their wrath upon himself and his fellows. The general security requires that men do only those things and do them only in the way which long custom has shown at least not displeasing to the gods. Law is the traditional or recorded body of precepts in which that custom is preserved and expressed. Whenever we find a body of primitive law possessed as a class tradition by a political oligarchy it is likely to be thought of in this way just as a body of like tradition in the custody of a priesthood is certain to be thought of as divinely revealed. A third and closely related idea conceives of law as the recorded wisdom of the wise men of old who had learned the safe course or the divinely approved course for human conduct. When a traditional custom of decision and custom of action has been reduced to writing in a primitive code it is likely to be thought of in this way, and Demosthenes in the fourth century B. C. could describe the law of Athens in these terms. Fourth, law may be conceived as a philosophically discovered system of principles which express the nature of things, to which, therefore, man ought to conform his conduct. Such was the idea of the Roman jurisconsult, grafted, it is true, on the second and third ideas and on a political theory of law as the command of the Roman people, but reconciled with them by conceiving of tradition and recorded wisdom and command of the people as mere declarations or reflections of the philosophically ascertained principles, to be measured and shaped and interpreted and eked out thereby. In the hands of philosophers the foregoing conception often takes another form so that, fifth, law is looked upon as a body of ascertainments and declarations of an eternal and immutable moral code. Sixth, there is an idea of law as a body of agreements of men in politically organized society as to their relations with each other. This is a democratic version of the identification of law with rules of law and hence with the enactments and decrees of the city-state which is discussed in the Platonic Minos. Not unnaturally Demosthenes suggests it to an Athenian jury. Very likely in such a theory a philosophical idea would support the political idea and the inherent moral obligation of a promise would be invoked to show why men should keep the agreements made in their popular assemblies. Seventh, law has been thought of as a reflection of the divine reason governing the universe; a reflection of that part which determines the "ought" addressed by that reason to human beings as moral entities, in distinction from the "must" which it addresses to the rest of creation. Such was the conception of Thomas Aquinas, which had great currency down to the seventeenth century and has had much influence ever since. Eighth, law has been conceived as a body of commands of the sovereign authority in a politically organized society as to how men should conduct themselves therein, resting ultimately on whatever basis was held to be behind the authority of that sovereign. So thought the Roman jurists of the Republic and of the classical period with respect to positive law. And as the emperor had the sovereignty of the Roman people devolved upon him, the Institutes of Justinian could lay down that the will of the emperor had the force of a law. Such a mode of thought was congenial to the lawyers who were active in support of royal authority in the centralizing French monarchy of the sixteenth and seventeenth centuries and through them passed into public law. It seemed to fit the circumstances of parliamentary supremacy in England after 1688, and became the orthodox English juristic theory. Also it could be made to fit a political theory of popular sovereignty in which the people were thought of as succeeding to the sovereignty of parliament at the American Revolution or of the French king at the French Revolution. A ninth idea of law takes it to be a system of precepts discovered by human experience whereby the individual human will may realize the most complete freedom possible consistently with the like freedom of will of others. This idea, held in one form or another by the historical school, divided the allegiance of jurists with the theory of law as command of the sovereign during almost the whole of the past century. It assumed that the human experience by which legal principles were discovered was determined in some inevitable way. It was not a matter of conscious human endeavor. The process was determined by the unfolding of an idea of right and justice or an idea of liberty which was realizing itself in human administration of justice, or by the operation of biological or psychological laws or of race characters, whose necessary result was the system of law of the time and people in question. Again, tenth, men have thought of law as a system of principles, discovered philosophically and developed in detail by juristic writing and judicial decision, whereby the external life of man is measured by reason, or in another phase, whereby the will of the individual in action is harmonized with those of his fellow men. This mode of thought appeared in the nineteenth century after the natural-law theory in the form in which it had prevailed for two centuries had been abandoned and philosophy was called upon to provide a critique for systematic arrangement and development of details. Eleventh, law has been thought of as a body or system of rules imposed on men in society by the dominant class for the time being in furtherance, conscious or unconscious, of its own interest. This economic interpretation of law takes many forms. In an idealistic form it thinks of the inevitable unfolding of an economic idea. In a mechanical sociological form it thinks of class struggle or a struggle for existence in terms of economics, and of law as the result of the operation of forces or laws involved in or determining such struggles. In a positivist-analytical form it thinks of law as the command of the sovereign, but of that command as determined in its economic content by the will of the dominant social class, determined in turn by its own interest. All of these forms belong to transition from the stability of the maturity of law to a new period of growth. When the idea of the self-sufficiency of law gives way and men seek to relate jurisprudence to the other social sciences, the relation to economics challenges attention at once. Moreover in a time of copious legislation the enacted rule is easily taken as the type of legal precept and an attempt to frame a theory of legislative lawmaking is taken to give an account of all law. Finally, twelfth, there is an idea of law as made up of the dictates of economic or social laws with respect to the conduct of men in society, discovered by observation, expressed in precepts worked out through human experience of what would work and what not in the administration of justice. This type of theory likewise belongs to the end of the nineteenth century, when men had begun to look for physical or biological bases, discoverable by observation, in place of metaphysical bases, discoverable by philosophical reflection. Another form finds some ultimate social fact by observation and develops the logical implications of that fact much after the manner of the metaphysical jurist. This again results from the tendency in recent years to unify the social sciences and consequent attention to sociological theories. Digression is worth while in order to note that each of the foregoing theories of law was in the first instance an attempt at a rational explanation of the law of the time and place or of some striking element therein. Thus, when the law has been growing through juristic activity, a philosophical theory of law, as declaratory of philosophically ascertainable principles, has obtained. When and where the growing point of law has been in legislation, a political theory of law as the command of the sovereign has prevailed. When the law has been assimilating the results of a prior period of growth, a historical theory of law as something found by experience, or a metaphysical theory of law as an idea of right or of liberty realizing in social and legal development, has tended to be dominant. For jurists and philosophers do not make these theories as simple matters of logic by inexorable development of philosophical fundamentals. Having something to explain or to expound, they endeavor to understand it and to state it rationally and in so doing work out a theory of what it is. The theory necessarily reflects the institution which it was devised to rationalize, even though stated universally. It is an attempt to state the law, or the legal institution of the time and place in universal terms. Its real utility is likely to be in its enabling us to understand that body of law or that institution and to perceive what the men of the time were seeking to do with them or to make of them. Accordingly analysis of these theories is one way of getting at the ends for which men have been striving through the legal order. What common elements may we find in the foregoing twelve pictures of what law is? For one thing, each shows us a picture of some ultimate basis, beyond reach of the individual human will, that stands fast in the whirl of change of which life is made up. This steadfast ultimate basis may be thought of as the divine pleasure or will or reason, revealed immediately or mediately through a divinely ordained immutable moral code. It may be put in the form of some ultimate metaphysical datum which is so given us that we may rest in it forever. It may be portrayed as certain ultimate laws which inexorably determine the phenomena of human conduct. Or it may be described in terms of some authoritative will for the time and place, to which the wills of others are subjected, that will deriving its authority ultimately and absolutely in some one of the preceding forms, so that what it does is by and large in no wise a matter of chance. This fixed and stable starting point is usually the feature upon which the chief emphasis is placed. Next we shall find in all theories of the nature of law a picture of a determinate and mechanically absolute mode of proceeding from the fixed and absolute starting point. The details may come from this starting point through divine revelation or a settled authoritative tradition or record, or an inevitable and infallible philosophical or logical method, or an authoritative political machinery, or a scientific system of observation, or historically verifiable ideas which are logically demonstrable to be implications of the fundamental metaphysically given datum. Third, we shall see in these theories a picture of a system of ordering human conduct and adjusting human relations resting upon the ultimate basis and derived therefrom by the absolute process. In other words, they all picture, not merely an ordering of human conduct and adjustment of human relations, which we have actually given, but something more which we should like to have, namely, a doing of these things in a fixed, absolutely predetermined way, excluding all merely individual feelings or desires of those by whom the ordering and adjustment are carried out. Thus in these subconscious picturings of the end of law it seems to be conceived as existing to satisfy a paramount social want of general security. Certainly the nineteenth-century jurist had this conception. But is this because the function of law is limited to satisfaction of that one want, or is it because that want has been most conspicuous among those which men have sought to satisfy through law, and because the ordering of human conduct by the force of politically organized society has been adapted chiefly to satisfying that one want in the social order of the past? If we turn to the ideas which have obtained in conscious thinking about the end of law, we may recognize three which have held the ground successively in legal history and a fourth which is beginning to assert itself. The first and simplest idea is that law exists in order to keep the peace in a given society; to keep the peace at all events and at any price. This is the conception of what may be called the stage of primitive law. It puts satisfaction of the social want of general security, stated in its lowest terms, as the purpose of the legal order. So far as the law goes, other individual or social wants are ignored or are sacrificed to this one. Accordingly the law is made up of tariffs of exact compositions for every detailed injury instead of principles of exact reparation, of devices to induce or coerce submission of controversies to adjudication instead of sanctions, of regulation of self-help and self-redress instead of a general prohibition thereof, and of mechanical modes of trial which at any rate do not admit of argument instead of rational modes of trial involving debate and hence dispute and so tending to defeat the purpose of the legal order. In a society organized on the basis of kinship, in which the greater number of social wants were taken care of by the kin-organizations, there are two sources of friction: the clash of kin-interests, leading to controversies of one kindred with another, and the kinless man, for whom no kin-organization is responsible, who also has no kin-organization to stand behind him in asserting his claims. Peace between kindreds and peace between clansmen and the growing mass of non-gentile population is the unsatisfied social want to which politically organized society must address itself. The system of organized kindreds gradually breaks down. Groups of kinsmen cease to be the fundamental social units. Kin-organization is replaced by political organization as the primary agency of social control. The legal unit comes to be the free citizen or the free man. In this transition regulation of self-redress and prevention of private war among those who have no strong clan-organizations to control them or respond for them are demanded by the general security. The means of satisfying these social wants are found in a legal order conceived solely in terms of keeping the peace. Greek philosophers came to conceive of the general security in broader terms and to think of the end of the legal order as preservation of the social _status quo_. They came to think of maintaining the general security mediately through the security of social institutions. They thought of law as a device to keep each man in his appointed groove in society and thus prevent friction with his fellows. The virtue on which they insisted was _sophrosyne_, knowing the limits which nature fixes for human conduct and keeping within them. The vice which they denounced was _hybris_, wilful bondbreaking--wilful transgression of the socially appointed bounds. This mode of thinking follows the substitution of the city-state political organization of society for the kin-organization. The organized kindreds were still powerful. An aristocracy of the kin-organized and kin-conscious, on the one hand, and a mass of those who had lost or severed their ties of kinship, or had come from without, on the other hand, were in continual struggle for social and political mastery. Also the politically ambitious individual and the masterful aristocrat were continually threatening the none too stable political organization through which the general security got a precarious protection. The chief social want, which no other social institution could satisfy, was the security of social institutions generally. In the form of maintenance of the social _status quo_ this became the Greek and thence the Roman and medieval conception of the end of law. Transition from the idea of law as a device to keep the peace to the idea of law as a device to maintain the social _status quo_ may be seen in the proposition of Heraclitus, that men should fight for their laws as for the walls of their city. In Plato the idea of maintaining the social order through the law is fully developed. The actual social order was by no means what it should be. Men were to be reclassified and everyone assigned to the class for which he was best fitted. But when the classification and the assignment had been made the law was to keep him there. It was not a device to set him free that he might find his own level by free competition with his fellows and free experiment with his natural powers. It was a device to prevent such disturbances of the social order by holding each individual to his appointed place. As Plato puts it, the shoemaker is to be only a shoemaker and not a pilot also; the farmer is to be only a farmer and not a judge as well; the soldier is to be only a soldier and not a man of business besides; and if a universal genius who through wisdom can be everything and do everything comes to the ideal city-state, he is to be required to move on. Aristotle puts the same idea in another way, asserting that justice is a condition in which each keeps within his appointed sphere; that we first take account of relations of inequality, treating individuals according to their worth, and then secondarily of relations of equality in the classes into which their worth requires them to be assigned. When St. Paul exhorted wives to obey their husbands, and servants to obey their masters, and thus everyone to exert himself to do his duty in the class where the social order had put him, he expressed this Greek conception of the end of law. Roman lawyers made the Greek philosophical conception into a juristic theory. For the famous three precepts to which the law is reduced in Justinian's Institutes come to this: Everyone is to live honorably; he is to "preserve moral worth in his own person" by conforming to the conventions of the social order. Everyone is to respect the personality of others; he is not to interfere with those interests and powers of action, conceded to others by the social order, which make up their legal personality. Everyone is to render to everyone else his own; he is to respect the acquired rights of others. The social system has defined certain things as belonging to each individual. Justice is defined in the Institutes as the set and constant purpose of giving him these things. It consists in rendering them to him and in not interfering with his having and using them within the defined limits. This is a legal development of the Greek idea of harmoniously maintaining the social _status quo_. The later eastern empire carried it to the extreme. Stability was to be secured by rigidly keeping everyone to his trade or calling and his descendants were to follow him therein. Thus the harmony of society and the social order would not be disturbed by individual ambition. In the Middle Ages the primitive idea of law as designed only to keep the peace came back with Germanic law. But the study of Roman law presently taught the Roman version of the Greek conception and the legal order was thought of once more as an orderly maintenance of the social _status quo_. This conception answered to the needs of medieval society, in which men had found relief from anarchy and violence in relations of service and protection and a social organization which classified men in terms of such relations and required them to be held to their functions as so determined. Where the Greeks thought of a stationary society corrected from time to time with reference to its nature or ideal, the Middle Ages thought of a stationary society resting upon authority and determined by custom or tradition. To each, law was a system of precepts existing to maintain this stationary society as it was. In the feudal social order reciprocal duties involved in relations established by tradition and taken to rest on authority were the significant legal institutions. With the gradual disintegration of this order and the growing importance of the individual in a society engaged in discovery, colonization and trade, to secure the claims of individuals to assert themselves freely in the new fields of human activity which were opening on every side became a more pressing social want than to maintain the social institutions by which the system of reciprocal duties was enforced and the relations involving those duties were preserved. Men did not so much desire that others perform for them the duties owing in some relation, as that others keep hands off while they achieved what they might for themselves in a world that continually afforded new opportunities to the active and the daring. The demand was no longer that men be kept in their appointed grooves. Friction and waste were apprehended, not from men getting out of these grooves, but from attempts to hold them there by means devised to meet the needs of a different social order whereby they were made to chafe under arbitrary restraint and their powers were not utilized in the discovery and exploitation of the resources of nature, to which human powers were to be devoted in the succeeding centuries. Accordingly the end of law comes to be conceived as a making possible of the maximum of individual free self-assertion. Transition to the newer way of thinking may be seen in the Spanish jurist-theologians of the sixteenth century. Their juristic theory was one of natural limits of activity in the relations of individuals with each other, that is, of limits to human action which expressed the rational ideal of man as a moral creature and were imposed upon men by reason. This theory differs significantly from the idea of antiquity, although it goes by the old name. The Greeks thought of a system of limiting men's activities in order that each might be kept in the place for which he was best fitted by nature--the place in which he might realize an ideal form of his capacities--and thus to preserve the social order as it stands or as it shall stand after a rearrangement. The sixteenth-century jurists of the Counter-Reformation held that men's activities were naturally limited, and hence that positive law might and should limit them in the interest of other men's activities, because all men have freedom of will and ability to direct themselves to conscious ends. Where Aristotle thought of inequalities arising from the different worth of individual men and their different capacities for the things which the social order called for, these jurists thought of a natural (i.e., ideal) equality, involved in the like freedom of will and the like power of conscious employment of one's faculties inherent in all men. Hence law did not exist to maintain the social _status quo_ with all its arbitrary restraints on the will and on employment of individual powers; it existed rather to maintain the natural equality which often was threatened or impaired by the traditional restrictions on individual activity. Since this natural equality was conceived positively as an ideal equality in opportunity to do things, it could easily pass into a conception of free individual self-assertion as the thing sought, and of the legal order as existing to make possible the maximum thereof in a world abounding in undiscovered resources, undeveloped lands and unharnessed natural forces. The latter idea took form in the seventeenth century and prevailed for two centuries thereafter, culminating in the juristic thought of the last generation. Law as a securing of natural equality became law as a securing of natural rights. The nature of man was expressed by certain qualities possessed by him as a moral, rational creature. The limitations on human activity, of which the Spanish jurist-theologians had written, got their warrant from the inherent moral qualities of men which made it right for them to have certain things and do certain things. These were their natural rights and the law existed simply to protect and give effect to these rights. There was to be no restraint for any other purpose. Except as they were to be compelled to respect the rights of others, which the natural man or ideal man would do without compulsion as a matter of reason, men were to be left free. In the nineteenth century this mode of thought takes a metaphysical turn. The ultimate thing for juristic purposes is the individual consciousness. The social problem is to reconcile conflicting free wills of conscious individuals independently asserting their wills in the varying activities of life. The natural equality becomes an equality in freedom of will. Kant rationalized the law in these terms as a system of principles or universal rules, to be applied to human action, whereby the free will of the actor may co-exist along with the free will of everyone else. Hegel rationalized the law in these terms as a system of principles wherein and whereby the idea of liberty was realizing in human experience. Bentham rationalized it as a body of rules, laid down and enforced by the state's authority, whereby the maximum of happiness, conceived in terms of free self-assertion, was secured to each individual. Its end was to make possible the maximum of free individual action consistent with general free individual action. Spencer rationalized it as a body of rules, formulating the "government of the living by the dead," whereby men sought to promote the liberty of each limited only by the like liberty of all. In any of these ways of putting it, the end of law is to secure the greatest possible general individual self-assertion; to let men do freely everything they may consistently with a like free doing of everything they may by their fellow men. This is indeed a philosophy of law for discoverers and colonizers and pioneers and traders and entrepreneurs and captains of industry. Until the world became crowded, it served well to eliminate friction and to promote the widest discovery and utilization of the natural resources of human existence. Looking back at the history of this conception, which has governed theories of the end of law for more than two hundred years, we may note that it has been put to three uses. It has been used as a means of clearing away the restraints upon free economic activity which accumulated during the Middle Ages as incidents of the system of relational duties and as expressions of the idea of holding men to their place in a static social order. This negative side played an important part in the English legislative reform movement in the last century. The English utilitarians insisted upon removal of all restrictions upon individual free action beyond those necessary for securing like freedom on the part of others. This, they said, was the end of legislation. Again it has been used as a constructive idea, as in the seventeenth and eighteenth centuries, when a commercial law which gave effect to what men did as they willed it, which looked at intention and not at form, which interpreted the general security in terms of the security of transactions and sought to effectuate the will of individuals to bring about legal results, was developed out of Roman law and the custom of merchants through juristic theories of natural law. Finally it was used as a stabilizing idea, as in the latter part of the nineteenth century, when men proved that law was an evil, even if a necessary evil, that there should be as little law made as possible, since all law involved restraint upon free exertion of the will, and hence that jurist and legislator should be content to leave things legal as they are and allow the individual "to work out in freedom his own happiness or misery" on that basis. When this last stage in the development of the idea of law as existing to promote or permit the maximum of free individual self-assertion had been reached, the juristic possibilities of the conception had been exhausted. There were no more continents to discover. Natural resources had been discovered and exploited and the need was for conservation of what remained available. The forces of nature had been harnessed to human use. Industrial development had reached large proportions, and organization and division of labor in our economic order had gone so far that anyone who would could no longer go forth freely and do anything which a restless imagination and daring ambition suggested to him as a means of gain. Although lawyers went on repeating the old formula, the law began to move in another direction. The freedom of the owner of property to do upon it whatever he liked, so he did not overstep his limits or endanger the public health or safety, began to be restricted. Nay, the law began to make men act affirmatively upon their property in fashions which it dictated, where the general health was endangered by non-action. The power to make contracts began to be limited where industrial conditions made abstract freedom of contract defeat rather than advance full individual human life. The power of the owner to dispose freely of his property began to be limited in order to safeguard the security of the social institutions of marriage and the family. Freedom of appropriating _res nullius_ and of using _res communes_ came to be abridged in order to conserve the natural resources of society. Freedom of engaging in lawful callings came to be restricted, and an elaborate process of education and examination to be imposed upon those who would engage in them, lest there be injury to the public health, safety or morals. A regime in which anyone might freely set up a corporation to engage in a public service, or freely compete in such service, was superseded by one of legal exemption of existing public utilities from destructive competition. In a crowded world, whose resources had been exploited, a system of promoting the maximum of individual self-assertion had come to produce more friction than it relieved and to further rather than to eliminate waste. At the end of the last and the beginning of the present century, a new way of thinking grew up. Jurists began to think in terms of human wants or desires rather than of human wills. They began to think that what they had to do was not simply to equalize or harmonize wills, but, if not to equalize, at least to harmonize the satisfaction of wants. They began to weigh or balance and reconcile claims or wants or desires, as formerly they had balanced or reconciled wills. They began to think of the end of law not as a maximum of self-assertion, but as a maximum satisfaction of wants. Hence for a time they thought of the problem of ethics, of jurisprudence, and of politics as chiefly one of valuing; as a problem of finding criteria of the relative value of interests. In jurisprudence and politics they saw that we must add practical problems of the possibility of making interests effective through governmental action, judicial or administrative. But the first question was one of the wants to be recognized--of the interests to be recognized and secured. Having inventoried the wants or claims or interests which are asserting and for which legal security is sought, we were to value them, select those to be recognized, determine the limits within which they were to be given effect in view of other recognized interests, and ascertain how far we might give them effect by law in view of the inherent limitations upon effective legal action. This mode of thinking may be seen, concealed under different terminologies, in more than one type of jurist in the last three decades. Three elements contributed to shift the basis of theories as to the end of law from wills to wants, from a reconciling or harmonizing of wills to a reconciling or harmonizing of wants. The most important part was played by psychology which undermined the foundation of the metaphysical will-philosophy of law. Through the movement for unification of the social sciences, economics also played an important part, especially indirectly through the attempts at economic interpretation of legal history, reinforcing psychology by showing the extent to which law had been shaped by the pressure of economic wants. Also the differentiation of society, involved in industrial organization, was no mean factor, when classes came to exist in which claims to a minimum human existence, under the standards of the given civilization, became more pressing than claims to self-assertion. Attention was turned from the nature of law to its purpose, and a functional attitude, a tendency to measure legal rules and doctrines and institutions by the extent to which they further or achieve the ends for which law exists, began to replace the older method of judging law by criteria drawn from itself. In this respect the thought of the present is more like that of the seventeenth and eighteenth centuries than that of the nineteenth century. French writers have described this phenomenon as a "revival of juridical idealism." But in truth the social utilitarianism of today and the natural-law philosophy of the seventeenth and eighteenth centuries have only this in common: Each has its attention fixed upon phenomena of growth; each seeks to direct and further conscious improvement of the law. In its earlier form social-utilitarianism, in common with all nineteenth-century philosophies of law, was too absolute. Its teleological theory was to show us what actually and necessarily took place in lawmaking rather than what we were seeking to bring about. Its service to the philosophy of law was in compelling us to give over the ambiguous term "right" and to distinguish between the claims or wants or demands, existing independently of law, the legally recognized or delimited claims or wants or demands, and the legal institutions, which broadly go by the name of legal rights, whereby the claims when recognized and delimited are secured. Also it first made clear how much the task of the lawmaker is one of compromise. To the law-of-nature school, lawmaking was but an absolute development of absolute principles. A complete logical development of the content implicit in each natural right would give a body of law adequate to every time and place. It is true an idea of compromise did lurk behind the theory of the metaphysical jurists in the nineteenth century. But they sought an absolute harmonizing rather than a working compromise for the time and place. Conflicting individual wills were to be reconciled absolutely by a formula which had ultimate and universal authority. When we think of law as existing to secure social interests, so far as they may be secured through an ordering of men and of human relations through the machinery of organized political society, it becomes apparent that we may reach a practicable system of compromises of conflicting human desires here and now, by means of a mental picture of giving effect to as much as we can, without believing that we have a perfect solution for all time and for every place. As the Neo-Kantians put it, we may formulate the social ideal of the time and place and try juristic problems thereby without believing ourselves competent to lay out a social and political and legal chart for all time. As the Neo-Hegelians put it, we may discover and formulate the jural postulates of the civilization of the time and place without assuming that those postulates are a complete and final picture of ultimate law, by which it must be measured for all time. Social utilitarianism has stood in need of correction both from psychology and from sociology. It must be recognized that lawmaking and adjudication are not in fact determined precisely by a weighing of interests. In practice the pressure of wants, demands, desires, will warp the actual compromises made by the legal system this way or that. In order to maintain the general security we endeavor in every way to minimize this warping. But one needs only to look below the surface of the law anywhere at any time to see it going on, even if covered up by mechanical devices to make the process appear an absolute one and the result a predetermined one. We may not expect that the compromises made and enforced by the legal order will always and infallibly give effect to any picture we may make of the nature or ends of the process of making and enforcing them. Yet there will be less of this subconscious warping if we have a clear picture before us of what we are seeking to do and to what end, and if we build in the image thereof so far as we consciously build and shape the law. Difficulties arise chiefly in connection with criteria of value. If we say that interests are to be catalogued or inventoried, that they are then to be valued, that those which are found to be of requisite value are to be recognized legally and given effect within limits determined by the valuation, so far as inherent difficulties in effective legal securing of interests will permit, the question arises at once, How shall we do this work of valuing? Philosophers have devoted much ingenuity to the discovery of some method of getting at the intrinsic importance of various interests, so that an absolute formula may be reached in accordance wherewith it may be assured that the weightier interests intrinsically shall prevail. But I am skeptical as to the possibility of an absolute judgment. We are confronted at this point by a fundamental question of social and political philosophy. I do not believe the jurist has to do more than recognize the problem and perceive that it is presented to him as one of securing all social interests so far as he may, of maintaining a balance or harmony among them that is compatible with the securing of all of them. The last century preferred the general security. The present century has shown many signs of preferring the individual moral and social life. I doubt whether such preferences can maintain themselves. Social utilitarians would say, weigh the several interests in terms of the end of law. But have we any given to us absolutely? Is the end of law anything less than to do whatever may be achieved thereby to satisfy human desires? Are the limits any other than those imposed by the tools with which we work, whereby we may lose more than we gain, if we attempt to apply them in certain situations? If so, there is always a possibility of improved tools. The Greek philosopher who said that the only possible subjects of lawsuit were "insult, injury and homicide," was as dogmatic as Herbert Spencer, who conceived of sanitary laws and housing laws in our large cities as quite outside the domain of the legal order. Better legal machinery extends the field of legal effectiveness as better machinery has extended the field of industrial effectiveness. I do not mean that the law should interfere as of course in every human relation and in every situation where some one chances to think a social want may be satisfied thereby. Experience has shown abundantly how futile legal machinery may be in its attempts to secure certain kinds of interests. What I do say is, that if in any field of human conduct or in any human relation the law, with such machinery as it has, may satisfy a social want without a disproportionate sacrifice of other claims, there is no eternal limitation inherent in the nature of things, there are no bounds imposed at creation, to stand in the way of its doing so. Let us apply some of the other theories which are now current. The Neo-Hegelians say: Try the claims in terms of civilization, in terms of the development of human powers to the most of which they are capable--the most complete human mastery of nature, both human nature and external nature. The Neo-Kantians say: Try them in terms of a community of free-willing men as the social ideal. Duguit says: Try them in terms of social interdependence and social function. Do they promote or do they impede social interdependence through similarity of interest and division of labor? In these formulas do we really get away from the problem of a balance compatible with maintaining all the interests, with responding to all the wants and claims, which are involved in civilized social existence? For the purpose of understanding the law of today I am content with a picture of satisfying as much of the whole body of human wants as we may with the least sacrifice. I am content to think of law as a social institution to satisfy social wants--the claims and demands involved in the existence of civilized society--by giving effect to as much as we may with the least sacrifice, so far as such wants may be satisfied or such claims given effect by an ordering of human conduct through politically organized society. For present purposes I am content to see in legal history the record of a continually wider recognizing and satisfying of human wants or claims or desires through social control; a more embracing and more effective securing of social interests; a continually more complete and effective elimination of waste and precluding of friction in human enjoyment of the goods of existence--in short, a continually more efficacious social engineering. III The Application of Law Three steps are involved in the adjudication of a controversy according to law: (1) Finding the law, ascertaining which of the many rules in the legal system is to be applied, or, if none is applicable, reaching a rule for the cause (which may or may not stand as a rule for subsequent cases) on the basis of given materials in some way which the legal system points out; (2) interpreting the rule so chosen or ascertained, that is, determining its meaning as it was framed and with respect to its intended scope; (3) applying to the cause in hand the rule so found and interpreted. In the past these have been confused under the name of interpretation. It was assumed that the function of the judge consisted simply in interpreting an authoritatively given rule of wholly extra-judicial origin by an exact process of deducing its logically implied content and in mechanically applying the rule so given and interpreted. This assumption has its origin in the stage of the strict law in the attempt to escape from the overdetail on the one hand, and the vague sententiousness on the other hand, which are characteristic of primitive law. For the most part primitive law is made up of simple, precise, detailed rules for definite narrowly defined situations. It has no general principles. The first step toward a science of law is the making of distinctions between what comes within and what does not come within the legal meaning of a rule. But a body of primitive law also often contains a certain number of sententious legal proverbs, put in striking form so as to stick in the memory, but vague in their content. The strict law by means of a conception of results obtained inevitably from fixed rules and undeviating remedial proceedings seeks relief from the uncertainty inherent in the finding of a larger content for overdetailed special rules through differentiation of cases and the application of legal proverbial sayings through the "equity of the tribunal." It conceives of application of law as involving nothing but a mechanical fitting of the case with the strait-jacket of rule or remedy. The inevitable adjustments and extendings and limitations, which an attempt to administer justice in this way must involve, are covered up by a fiction of interpretation in order to maintain the general security. Philosophical rationalizing of the attempt to avoid the overpersonal administration of justice incident to the partial reversion to justice without law in the stage of equity and natural law, reinforced the assumption that judicial application of law was a mechanical process and was but a phase of interpretation. In the eighteenth century it was given scientific form in the theory of separation of powers. The legislative organ made laws. The executive administered them. The judiciary applied them to the decision of controversies. It was admitted in Anglo-American legal thinking that courts must interpret in order to apply. But the interpretation was taken not to be in any wise a lawmaking and the application was taken not to involve any administrative element and to be wholly mechanical. On the Continent interpretation so as to make a binding rule for future cases was deemed to belong only to the legislator. The maturity of law was not willing to admit that judge or jurist could make anything. It was not the least service of the analytical jurisprudence of the last century to show that the greater part of what goes by the name of interpretation in this way of thinking is really a lawmaking process, a supplying of new law where no rule or no sufficient rule is at hand. "The fact is," says Gray most truly, "that the difficulties of so-called interpretation arise when the legislature has had no meaning at all; when the question which is raised on the statute never occurred to it; when what the judges have to do is, not to determine what the legislature did mean on a point which was present to its mind, but to guess what it would have intended on a point not present to its mind had the point been present." The attempt to maintain the separation of powers by constitutional prohibitions has pointed to the same lesson from another side. Lawmaking, administration and adjudication cannot be rigidly fenced off one from the other and turned over each to a separate agency as its exclusive field. There is rather a division of labor as to typical cases and a practical or historical apportionment of the rest. Finding the law may consist merely in laying hold of a prescribed text of a code or statute. In that event the tribunal must proceed to determine the meaning of the rule and to apply it. But many cases are not so simple. More than one text is at hand which might apply; more than one rule is potentially applicable, and the parties are contending which shall be made the basis of a decision. In that event the several rules must be interpreted in order that intelligent selection may be made. Often the genuine interpretation of the existing rules shows that none is adequate to cover the case and that what is in effect, if not in theory, a new one must be supplied. Attempts to foreclose this process by minute, detailed legislation have failed signally, as, for example, in the overgrown code of civil procedure in New York. Providing of a rule by which to decide the cause is a necessary element in the determination of a large proportion of the causes that come before our higher tribunals, and it is often because a rule must be provided that the parties are not content to abide the decision of the court of first instance. Cases calling for genuine interpretation are relatively few and simple. Moreover genuine interpretation and lawmaking under the guise of interpretation run into one another. In other words, the judicial function and the legislative function run into one another. It is the function of the legislative organ to make laws. But from the nature of the case it cannot make laws so complete and all-embracing that the judicial organ will not be obliged to exercise a certain lawmaking function also. The latter will rightly consider this a subordinate function. It will take it to be one of supplementing, developing and shaping given materials by means of a given technique. None the less it is a necessary part of judicial power. Pushed to the extreme that regards all judicial lawmaking as unconstitutional usurpation, our political theory, a philosophical classification made over by imperfect generalization from the British constitution as it was in the seventeenth century, has served merely to intrench in the professional mind the dogma of the historical school, that legislative lawmaking is a subordinate function and exists only to supplement the traditional element of the legal system here and there and to set the judicial or juristic tradition now and then in the right path as to some particular item where it had gone astray. In Anglo-American law we do not think of analogical development of the traditional materials of the legal system as interpretation. In Roman-law countries, where the law is made up of codes supplemented and explained by the codified Roman law of Justinian and modern usage on the basis thereof, which stands as the common law, it seems clear enough that analogical application whether of a section of the code or of a text of the Roman law is essentially the same process. Both are called interpretation. As our common law is not in the form of authoritative texts, the nature of the process that goes on when a leading case is applied by analogy, or limited in its application, or distinguished, is concealed. It does not seem on the surface to be the same process as when a text of the Digest is so applied or limited or distinguished. Hence it has been easy for us to assume that courts did no more than genuinely interpret legislative texts and deduce the logical content of authoritatively established traditional principles. It has been easy to accept a political theory, proceeding on the dogma of separation of powers, and to lay down that courts only interpret and apply, that all making of law must come from the legislature, that courts must "take the law as they find it," as if they could always find it ready-made for every case. It has been easy also to accept a juristic theory that law cannot be made; that it may only be found, and that the process of finding it is a matter purely of observation and logic, involving no creative element. If we really believed this pious fiction, it would argue little faith in the logical powers of the bench in view of the diversity of judicially asserted doctrines on the same point which so frequently exist in our case law and the widely different opinions of our best judges with respect to them. As interpretation is difficult, when it is difficult, just because the legislature had no actual intent to ascertain, so the finding of the common law on a new point is difficult because there is no rule of law to find. The judicial and the legislative functions run together also in judicial ascertainment of the common law by analogical application of decided cases. As interpretation on the one side runs into lawmaking and so the judicial function runs into the legislative function, on the other side interpretation runs into application and so the judicial function runs into the administrative or executive. Typically judicial treatment of a controversy is a measuring of it by a rule in order to reach a universal solution for a class of causes of which the cause in hand is but an example. Typically administrative treatment of a situation is a disposition of it as a unique occurrence, an individualization whereby effect is given to its special rather than to its general features. But administration cannot ignore the universal aspects of situations without endangering the general security. Nor may judicial decision ignore their special aspects and exclude all individualization in application without sacrificing the social interest in the individual life through making justice too wooden and mechanical. The idea that there is no administrative element in the judicial decision of causes and that judicial application of law should be a purely mechanical process goes back to Aristotle's Politics. Writing before a strict law had developed, in what may be called the highest point of development of primitive law, when the personal character and feelings for the time being of kings or magistrates or dicasts played so large a part in the actual workings of legal justice, Aristotle sought relief through a distinction between the administrative and the judicial. He conceived that discretion was an administrative attribute. In administration regard was to be had to times and men and special circumstances. The executive was to use a wise discretion in adjusting the machinery of government to actual situations as they arose. On the other hand, he conceived that a court should have no discretion. To him the judicial office was a Procrustean one of fitting each case to the legal bed, if necessary by a surgical operation. Such a conception met the needs of the strict law. In a stage of legal maturity it was suited to the Byzantine theory of law as the will of the emperor and of the judge as the emperor's delegate to apply and give effect to that will. In the Middle Ages it had a sufficient basis in authority and in the needs of a period of strict law. Later it fitted well into the Byzantine theory of lawmaking which French publicists adopted and made current in the seventeenth and eighteenth centuries. In the United States it seemed to be required by our constitutional provisions for a separation of powers. But in practice it has broken down no less completely than the analogous idea of entire separation of the judicial from the lawmaking function. Almost all of the problems of jurisprudence come down to a fundamental one of rule and discretion, of administration of justice by law and administration of justice by the more or less trained intuition of experienced magistrates. Controversies as to the nature of law, whether the traditional element or the imperative element of legal systems is the typical law, controversies as to the nature of lawmaking, whether the law is found by judicial empiricism or made by conscious legislation, and controversies as to the bases of law's authority, whether in reason and science on the one hand or in command and sovereign will on the other hand, get their significance from their bearing upon this question. Controversies as to the relation of law and morals, as to the distinction of law and equity, as to the province of the court and of the jury, as to fixed rule or wide judicial power in procedure, and as to judicial sentence and administrative individualization in punitive justice are but forms of this fundamental problem. This is not the place to discuss that problem. Suffice it to say that both are necessary elements in the administration of justice and that instead of eliminating either, we must partition the field between them. But it has been assumed that one or the other must govern exclusively, and there has been a continual movement in legal history back and forth between wide discretion and strict detailed rule, between justice without law, as it were, and justice according to law. The power of the magistrate has been a liberalizing agency in periods of growth. In the stage of equity and natural law, a stage of infusion of moral ideas from without into the law, the power of the magistrate to give legal force to his purely moral ideas was a chief instrument. Today we rely largely upon administrative boards and commissions to give legal force to ideas which the law ignores. On the other hand rule and form with no margin of application have been the main reliance of periods of stability. The strict law sought to leave nothing to the judge beyond seeing whether the letter had been complied with. The nineteenth century abhorred judicial discretion and sought to exclude the administrative element from the domain of judicial justice. Yet a certain field of justice without law always remained and by one device or another the balance of the supposedly excluded administrative element was preserved. In the strict law individualization was to be excluded by hard and fast mechanical procedure. In practice this procedure was corrected and the balance between rule and discretion, between the legal and the administrative, was restored by fictions and by an executive dispensing power. Roman equity has its origin in the _imperium_ of the _praetor_--his royal power to dispense with the strict law in particular situations. Also English equity has its origin in the royal power of discretionary application of law and dispensing with law in particular cases, misuse of which as a political institution was one of the causes of the downfall of the Stuarts. Thus we get a third agency for restoring the balance in the form of systematic interposition of praetor or chancellor on equitable grounds, leading to a system of equity. Carried too far in the stage of equity and natural law, overdevelopment of the administrative element brings about a reaction and in the maturity of law individualization is pushed to the wall once more. Yet this elimination of the administrative takes place more in theory and in appearance than in reality. For justice comes to be administered in large measure through the application of legal standards which admit of a wide margin for the facts of particular cases, and the application of these standards is committed to laymen or to the discretion of the tribunal. Moreover a certain judicial individualization goes on. Partly this takes the form of a margin of discretionary application of equitable remedies, handed down from the stage of equity and natural law. Partly it takes the form of ascertainment of the facts with reference to the legal result desired in view of the legal rule or of choice between competing rules in effect covering the same ground, although nominally for distinct situations. In other words, a more subtle fiction does for the maturity of law what is done for the strict law by its relatively crude procedural fictions. Of these five agencies for preserving the administrative element in judicial justice, in periods when legal theory excludes it, two call for special consideration. It is usual to describe law as an aggregate of rules. But unless the word rule is used in so wide a sense as to be misleading, such a definition, framed with reference to codes or by jurists whose eyes were fixed upon the law of property, gives an inadequate picture of the manifold components of a modern legal system. Rules, that is, definite, detailed provisions for definite, detailed states of fact, are the main reliance of the beginnings of law. In the maturity of law they are employed chiefly in situations where there is exceptional need of certainty in order to uphold the economic order. With the advent of legal writing and juristic theory in the transition from the strict law to equity and natural law, a second element develops and becomes a controlling factor in the administration of justice. In place of detailed rules precisely determining what shall take place upon a precisely detailed state of facts, reliance is had upon general premises for judicial and juristic reasoning. These legal principles, as we call them, are made use of to supply new rules, to interpret old ones, to meet new situations, to measure the scope and application of rules and standards and to reconcile them when they conflict or overlap. Later, when juristic study seeks to put the materials of the law in order, a third element develops, which may be called legal conceptions. These are more or less exactly defined types, to which we refer cases or by which we classify them, so that when a state of facts is classified we may attribute thereto the legal consequences attaching to the type. All of these admit of mechanical or rigidly logical application. A fourth element, however, which plays a great part in the everyday administration of justice, is of quite another character. Legal standards of conduct appear first in Roman equity. In certain cases of transactions or relations involving good faith, the formula was made to read that the defendant was to be condemned to that which in good faith he ought to give or do for or render to the plaintiff. Thus the judge had a margin of discretion to determine what good faith called for and in Cicero's time the greatest lawyer of the day thought these _actiones bonae fidei_ required a strong judge because of the dangerous power which they allowed him. From this procedural device, Roman lawyers worked out certain standards or measures of conduct, such as what an upright and diligent head of a family would do, or the way in which a prudent and diligent husbandman would use his land. In similar fashion English equity worked out a standard of fair conduct on the part of a fiduciary. Later the Anglo-American law of torts worked out, as a measure for those who are pursuing some affirmative course of conduct, the standard of what a reasonable, prudent man would do under the circumstances. Also the law of public utilities worked out standards of reasonable service, reasonable facilities, reasonable incidents of the service and the like. In all these cases the rule is that the conduct of one who acts must come up to the requirements of the standard. Yet the significant thing is not the fixed rule but the margin of discretion involved in the standard and its regard for the circumstances of the individual case. For three characteristics may be seen in legal standards: (1) They all involve a certain moral judgment upon conduct. It is to be "fair," or "conscientious," or "reasonable," or "prudent," or "diligent." (2) They do not call for exact legal knowledge exactly applied, but for common sense about common things or trained intuition about things outside of everyone's experience. (3) They are not formulated absolutely and given an exact content, either by legislation or by judicial decision, but are relative to times and places and circumstances and are to be applied with reference to the facts of the case in hand. They recognize that within the bounds fixed each case is to a certain extent unique. In the reaction from equity and natural law, and particularly in the nineteenth century, these standards were distrusted. Lord Camden's saying that the discretion of a judge was "the law of tyrants," that it was different in different men, was "casual" and dependent upon temperament, has in it the whole spirit of the maturity of law. American state courts sought to turn the principles by which the chancellors were wont to exercise their discretion into hard and fast rules of jurisdiction. They sought to reduce the standard of reasonable care to a set of hard and fast rules. If one crossed a railroad, he must "stop, look and listen." It was negligence _per se_ to get on or off a moving car, to have part of the body protruding from a railroad car, and the like. Also they sought to put the duties of public utilities in the form of definite rules with a detailed, authoritatively fixed content. All these attempts to do away with the margin of application involved in legal standards broke down. The chief result was a reaction in the course of which many states turned over all questions of negligence to juries, free even from effective advice from the bench, while many other jurisdictions have been turning over subject after subject to administrative boards and commissions to be dealt with for a season without law. In any event, whether the standard of due care in an action for negligence is applying by a jury, or the standard of reasonable facilities for transportation is applying by a public service commission, the process is one of judging of the quality of a bit of conduct under its special circumstances and with reference to ideas of fairness entertained by the layman or the ideas of what is reasonable entertained by the more or less expert commissioner. Common sense, experience and intuition are relied upon, not technical rule and scrupulously mechanical application. We are familiar with judicial individualization in the administration of equitable remedies. Another form, namely, individualization through latitude of application under the guise of choice or ascertainment of a rule, is concealed by the fiction of the logical completeness of the legal system and the mechanical, logical infallibility of the logical process whereby the predetermined rules implicit in the given legal materials are deduced and applied. To a large and apparently growing extent the practice of our application of law has been that jurors or courts, as the case may be, take the rules of law as a general guide, determine what the equities of the cause demand, and contrive to find a verdict or render a judgment accordingly, wrenching the law no more than is necessary. Many courts today are suspected of ascertaining what the equities of a controversy require, and then raking up adjudicated cases to justify the result desired. Often formulas are conveniently elastic so that they may or may not apply. Often rules of contrary tenor overlap, leaving a convenient no-man's-land wherein cases may be decided either way according to which rule the court chooses in order to reach a result arrived at on other grounds. Occasionally a judge is found who acknowledges frankly that he looks chiefly at the ethical situation between the parties and does not allow the law to interfere therewith beyond what is inevitable. Thus we have in fact a crude equitable application, a crude individualization, throughout the field of judicial administration of justice. It is assumed by courts more widely than we suspect, or at least, more widely than we like to acknowledge. Ostensibly there is no such power. But when one looks beneath the surface of the law reports, the process reveals itself under the name of "implication" or in the guise of two lines of decisions of the same tribunal upon the same point from which it may choose at will, or in the form of what have been termed "soft spots" in the law--spots where the lines are so drawn by the adjudicated cases that the court may go either way as the ethical exigencies of the special circumstances of the case in hand may require, with no apparent transgression of what purport to be hard and fast rules. Such has been the result of attempts to exclude the administrative element in adjudication. In theory there is no such thing except with respect to equitable remedies, where it exists for historical reasons. In practice there is a great deal of it, and that in a form which is unhappily destructive of certainty and uniformity. Necessary as it is, the method by which we attain a needed individualization is injurious to respect for law. If the courts do not respect the law, who will? There is no exclusive cause of the current American attitude toward the law. But judicial evasion and warping of the law, in order to secure in practice a freedom of judicial action not conceded in theory, is certainly one cause. We need a theory which recognizes the administrative element as a legitimate part of the judicial function and insists that individualization in the application of legal precepts is no less important than the contents of those precepts themselves. Three theories of application of law obtain in the legal science of today. The theory which has the largest following among practitioners and in dogmatic exposition of the law is analytical. It assumes a complete body of law with no gaps and no antinomies, given authority by the state at one stroke and so to be treated as if every item was of the same date as every other. If the law is in the form of a code, its adherents apply the canons of genuine interpretation and ask what the several code provisions mean as they stand, looked at logically rather than historically. They endeavor to find the pre-appointed code pigeonhole for each concrete case, to put the case in hand into it by a purely logical process and to formulate the result in a judgment. If the law is in the form of a body of reported decisions, they assume that those decisions may be treated as if all rendered at the same time and as containing implicitly whatever is necessary to the decision of future causes which they do not express. They may define conceptions or they may declare principles. The logically predetermined decision is contained in the conception to which the facts are referred or involved in the principle within whose scope the facts fall. A purely logical process, exactly analogous to genuine interpretation of a legislative rule, will yield the appropriate conception from given premises or discover the appropriate principle from among those which superficially appear to apply. Application is merely formulation in a judgment of the result obtained by analysis of the case and logical development of the premises contained in the reported decisions. Among teachers a historical theory has the larger following. If the law is in the form of a code, the code provisions are assumed to be in the main declaratory of the law as it previously existed; the code is regarded as a continuation and development of pre-existing law. All exposition of the code and of any provision thereof must begin by an elaborate inquiry into the pre-existing law and the history and development of the competing juristic theories among which the framers of the code had to choose. If the law is in the form of a body of reported decisions, the later decisions are regarded as but declaring and illustrating the principles to be found by historical study of the older ones; as developing legal conceptions and principles to be found by historical study of the older law. Hence all exposition must begin with an elaborate historical inquiry in which the idea that has been unfolding in the course of judicial decision is revealed and the lines are disclosed along which legal development must move. But when the content of the applicable legal precept is discovered in these ways, the method of applying it in no way differs from that which obtains under the analytical theory. The process of application is assumed to be a purely logical one. Do the facts come within or fail to come within the legal precept? This is the sole question for the judge. When by historical investigation he has found out what the rule is, he has only to fit it to just and unjust alike. Analytical and historical theories of application of law thus seek to exclude the administrative element wholly and their adherents resort to fictions to cover up the judicial individualization which none the less obtains in practice or else ignore it, saying that it is but a result of the imperfect constitution of tribunals or of the ignorance or sloth of those who sit therein. The latter explanation is no more satisfying than the fictions, and a new theory has sprung up of late in Continental Europe which may be understood best by calling it the equitable theory, since the methods of the English Chancellor had much to do with suggesting it. To the adherents of this theory the essential thing is a reasonable and just solution of the individual controversy. They conceive of the legal precept, whether legislative or traditional, as a guide to the judge, leading him toward the just result. But they insist that within wide limits he should be free to deal with the individual case so as to meet the demands of justice between the parties and accord with the reason and moral sense of ordinary men. They insist that application of law is not a purely mechanical process. They contend that it involves not logic only but moral judgments as to particular situations and courses of conduct in view of the special circumstances which are never exactly alike. They insist that such judgments involve intuitions based upon experience and are not to be expressed in definitely formulated rules. They argue that the cause is not to be fitted to the rule but the rule to the cause. Much that has been written by advocates of the equitable theory of application of law is extravagant. As usually happens, in reaction from theories going too far in one direction this theory has gone too far in the other. The last century would have eliminated individualization of application. Now, as in the sixteenth- and seventeenth-century reaction from the strict law, come those who would have nothing else; who would turn over the whole field of judicial justice to administrative methods. If we must choose, if judicial administration of justice must of necessity be wholly mechanical or else wholly administrative, it was a sound instinct of lawyers in the maturity of law that led them to prefer the former. Only a saint, such as Louis IX under the oak at Vincennes, may be trusted with the wide powers of a judge restrained only by a desire for just results in each case to be reached by taking the law for a general guide. And St. Louis did not have the crowded calendars that confront the modern judge. But are we required to choose? May we not learn something from the futility of all efforts to administer justice exclusively by either method? May we not find the proper field of each by examining the means through which in fact we achieve an individualization which we deny in theory, and considering the cases in which those means operate most persistently and the actual administration of justice most obstinately refuses to become as mechanical in practice as we expect it to be in theory? In Anglo-American law today there are no less than seven agencies for individualizing the application of law. We achieve an individualization in practice: (1) through the discretion of courts in the application of equitable remedies; (2) through legal standards applied to conduct generally when injury results and also to certain relations and callings; (3) through the power of juries to render general verdicts; (4) through latitude of judicial application involved in finding the law; (5) through devices for adjusting penal treatment to the individual offender; (6) through informal methods of judicial administration in petty courts, and (7) through administrative tribunals. The second and fourth have been considered. Let us look for a moment at the others. Discretion in the exercise of equitable remedies is an outgrowth of the purely personal intervention in extraordinary cases on grounds that appealed to the conscience of the chancellor in which equity jurisdiction has its origin. Something of the original flavor of equitable interposition remains in the doctrine of personal bar to relief, and in the ethical quality of some of the maxims which announce policies to be pursued in the exercise of the chancellor's powers. But it was possible for the nineteenth century to reconcile what remained of the chancellor's discretion with its mode of thinking. Where the plaintiff's right was legal but the legal remedy was not adequate to secure him in what the legal right entitled him to claim, equity gave a concurrent remedy supplementing the strict law. As the remedy in equity was supplementary and concurrent, in case the chancellor in his discretion kept his hands off, as he would if he felt that he could not bring about an equitable result, the law would still operate. The plaintiff's right was in no wise at the mercy of anyone's discretion. He merely lost an extraordinary and supplementary remedy and was left to the ordinary course of the law. Such was the orthodox view of the relation of law and equity. Equity did not alter a jot or tittle of the law. It was a remedial system alongside of the law, taking the law for granted and giving legal rights greater efficacy in certain situations. But take the case of a "hard bargain," where the chancellor in his discretion may deny specific performance. In England and in several states the damages at law do not include the value of the bargain where the contract is for the sale of land. Hence unless specific performance is granted, the plaintiff's legal right is defeated. It is notorious that bargains appeal differently to different chancellors in this respect. In the hands of some the doctrine as to hard bargains has a tendency to become wooden, as it were. There is a hard and fast rule that certain bargains are "hard" and that equity will not enforce them. In states where the value of the bargain may be recovered at law, it may well be sometimes that the bargain might as well be enforced in equity, if it is not to be cancelled. But the chancellor is not unlikely to wash his hands of a hard case, saying that the court of law is more callous; let that court act, although that court is the same judge with another docket before him. In other hands, the doctrine tends to become ultro-ethical and to impair the security of transactions. In other words, the margin of discretion in application of equitable remedies tends on the one hand to disappear through crystallization of the principles governing its exercise into rigid rules, or on the other hand, to become overpersonal and uncertain and capricious. Yet as one reads the reports attentively he cannot doubt that in action it is an important engine of justice; that it is a needed safety valve in the working of our legal system. At common law the chief reliance for individualizing the application of law is the power of juries to render general verdicts, the power to find the facts in such a way as to compel a different result from that which the legal rule strictly applied would require. In appearance there has been no individualization. The judgment follows necessarily and mechanically from the facts upon the record. But the facts found were found in order to reach the result and are by no means necessarily the facts of the actual case. Probably this power alone made the common law of master and servant tolerable in the last generation. Yet exercise of this power, with respect to which, as Lord Coke expressed it, "the jurors are chancellors," has made the jury an unsatisfactory tribunal in many classes of cases. It is largely responsible for the practice of repeated new trials which makes the jury a most expensive tribunal. The crude individualization achieved by juries, influenced by emotional appeals, prejudice and the peculiar personal ideas of individual jurors, involves quite as much injustice at one extreme as mechanical application of law by judges at the other extreme. Indeed the unchecked discretion of juries, which legislation has brought about in some jurisdictions, is worse than the hobbled court and rigid mechanical application of law from which it is a reaction. Our administration of punitive justice is full of devices for individualizing the application of criminal law. Our complicated machinery of prosecution involves a great series of mitigating agencies whereby individual offenders may be spared or dealt with leniently. Beginning at the bottom there is the discretion of the police as to who and what shall be brought to the judicial mill. Next are the wide powers of our prosecuting officers who may ignore offences or offenders, may dismiss proceedings in their earlier stages, may present them to grand juries in such a way that no indictment results, or may enter a _nolle prosequi_ after indictment. Even if the public prosecutor desires to prosecute, the grand jury may ignore the charge. If the cause comes to trial, the petit jury may exercise a dispensing power by means of a general verdict. Next comes judicial discretion as to sentence, or in some jurisdictions, assessment of punishment by the discretion of the trial jury. Upon these are superposed administrative parole or probation and executive power to pardon. The lawyer-politician who practices in the criminal courts knows well how to work upon this complicated machinery so as to enable the professional criminal to escape as well as those or even instead of those for whom these devices were intended. They have been developed to obviate the unhappy results of a theory which would have made the punishment mechanically fit the crime instead of adjusting the penal treatment to the criminal. Here, as elsewhere, the attempt to exclude the administrative element has brought about back-handed means of individualization which go beyond the needs of the situation and defeat the purposes of the law. Even more striking is the recrudescence of personal government, by way of reaction from an extreme of government of laws and not of men, which is involved in the setting up of administrative tribunals on every hand and for every purpose. The regulation of public utilities, apportionment of the use of the water of running streams among different appropriators, workmen's compensation, the actual duration and nature of punishment for crime, admission to and practice of professions and even of trades, the power to enter or to remain in the country, banking, insurance, unfair competition and restraint of trade, the enforcement of factory laws, of pure food laws, of housing laws and of laws as to protection from fire and the relation of principal and agent, as between farmers and commission merchants, are but some of the subjects which the living law, the law in action, is leaving to executive justice in administrative tribunals. To some extent this is required by the increasing complexity of the social order and the minute division of labor which it involves. Yet this complexity and this division of labor developed for generations in which the common-law jealousy of administration was dominant. Chiefly our revival of executive justice in the present century is one of those reversions to justice without law which are perennial in legal history. As in the case of like reversions in the past it is the forerunner of growth. It is the first form of reaction from the overrigid application of law in a period of stability. A bad adjustment between law and administration and cumbrous, ineffective and unbusinesslike legal procedure, involving waste of time and money in the mere etiquette of justice, are doing in our time what like conditions did in English law in the middle of the sixteenth century. If we look back at the means of individualizing the application of law which have developed in our legal system, it will be seen that almost without exception they have to do with cases involving the moral quality of individual conduct or of the conduct of enterprises, as distinguished from matters of property and of commercial law. Equity uses its powers of individualizing to the best advantage in connection with the conduct of those in whom trust and confidence have been reposed. Legal standards are used chiefly in the law of torts, in the law of public utilities and in the law as to fiduciary relations. Jury lawlessness is an agency of justice chiefly in connection with the moral quality of conduct where the special circumstances exclude that "intelligence without passion" which, according to Aristotle, characterizes the law. It is significant that in England today the civil jury is substantially confined to cases of defamation, malicious prosecution, assault and battery and breach of promise of marriage. Judicial individualization through choice of a rule is most noticeable in the law of torts, in the law of domestic relations and in passing upon the conduct of enterprises. The elaborate system of individualization in criminal procedure has to do wholly with individual human conduct. The informal methods of petty courts are meant for tribunals which pass upon conduct in the crowd and hurry of our large cities. The administrative tribunals, which are setting up on every hand, are most called for and prove most effective as means of regulating the conduct of enterprises. A like conclusion is suggested when we look into the related controversy as to the respective provinces of common law and of legislation. Inheritance and succession, definition of interests in property and the conveyance thereof, matters of commercial law and the creation, incidents and transfer of obligations have proved a fruitful field for legislation. In these cases the social interest in the general security is the controlling element. But where the questions are not of interests of substance but of the weighing of human conduct and passing upon its moral aspects, legislation has accomplished little. No codification of the law of torts has done more than provide a few significantly broad generalizations. On the other hand, succession to property is everywhere a matter of statute law and commercial law is codified or codifying throughout the world. Moreover the common law insists upon its doctrine of _stare decisis_ chiefly in the two cases of property and commercial law. Where legislation is effective, there also mechanical application is effective and desirable. Where legislation is ineffective, the same difficulties that prevent its satisfactory operation require us to leave a wide margin of discretion in application, as in the standard of the reasonable man in our law of negligence and the standard of the upright and diligent head of a family applied by the Roman law, and especially by the modern Roman law, to so many questions of fault, where the question is really one of good faith. All attempts to cut down this margin have proved futile. May we not conclude that in the part of the law which has to do immediately with conduct complete justice is not to be attained by the mechanical application of fixed rules? Is it not clear that in this part of the administration of justice the trained intuition and disciplined judgment of the judge must be our assurance that causes will be decided on principles of reason and not according to the chance dictates of caprice, and that a due balance will be maintained between the general security and the individual human life? Philosophically the apportionment of the field between rule and discretion which is suggested by the use of rules and of standards respectively in modern law has its basis in the respective fields of intelligence and intuition. Bergson tells us that the former is more adapted to the inorganic, the latter more to life. Likewise rules, where we proceed mechanically, are more adapted to property and to business transactions, and standards; where we proceed upon intuitions, are more adapted to human conduct and to the conduct of enterprises. According to him, intelligence is characterized by "its power of grasping the general element in a situation and relating it to past situations," and this power involves loss of "that perfect mastery of a special situation in which instinct rules." In the law of property and in the law of commercial transactions it is precisely this general element and its relation to past situations that is decisive. The rule, mechanically applied, works by repetition and precludes individuality in results, which would threaten the security of acquisitions and the security of transactions. On the other hand, in the handmade, as distinguished from the machine-made product, the specialized skill of the workman gives us something infinitely more subtle than can be expressed in rules. In law some situations call for the product of hands, not of machines, for they involve not repetition, where the general elements are significant, but unique events, in which the special circumstances are significant. Every promissory note is like every other. Every fee simple is like every other. Every distribution of assets repeats the conditions that have recurred since the Statute of Distributions. But no two cases of negligence have been alike or ever will be alike. Where the call is for individuality in the product of the legal mill, we resort to standards. And the sacrifice of certainty in so doing is more apparent than actual. For the certainty attained by mechanical application of fixed rules to human conduct has always been illusory. IV Liability A systematist who would fit the living body of the law to his logical analytical scheme must proceed after the manner of Procrustes. Indeed, this is true of all science. In life phenomena are unique. The biologist of today sometimes doubts whether there are species and disclaims higher groups as more than conveniences of study. "Dividing lines," said a great American naturalist, "do not occur in nature except as accidents." Organization and system are logical constructions of the expounder rather than in the external world expounded. They are the means whereby we make our experience of that world intelligible and available. It is with no illusion, therefore, that I am leading you to a juristic _ultima Thule_ that I essay a bit of systematic legal science on a philosophical basis. Even if it never attains a final system in which the law shall stand fast forever, the continual juristic search for the more inclusive order, the continual juristic struggle for a simpler system that will better order and better reconcile the phenomena of the actual administration of justice, is no vain quest. Attempts to understand and to expound legal phenomena lead to generalizations which profoundly affect those phenomena, and criticism of those generalizations, in the light of the phenomena they seek to explain and to which they give rise, enables us to replace them or modify them or supplement them and thus to keep the law a growing instrument for achieving expanding human desires. One of the stock questions of the science of law is the nature and system and philosophical basis of situations in which one may exact from another that he "give or do or furnish something" (to use the Roman formula) for the advantage of the former. The classical Roman lawyer, thinking in terms of natural law, spoke of a bond or relation of right and law between them whereby the one might justly and legally exact and the other was bound in justice and law to perform. In modern times, thinking, whether he knows it or not, in terms of natural rights and by derivation of legal rights, the analytical jurist speaks of rights _in personam_. The Anglo-American lawyer, thinking in terms of procedure, speaks of contracts and torts, using the former term in a wide sense. If pressed, he may refer certain enforceable claims to exact and duties of answering to the exaction to a Romanist category of quasi-contract, satisfied to say "quasi" because on analysis they do not comport with his theory of contract, and to say "contract" because procedurally they are enforced _ex contractu_. Pressed further, he may be willing to add "quasi tort" for cases of common-law liability without fault and workmen's compensation--"quasi" because there is no fault, "tort" because procedurally the liability is given effect _ex delicto_. But cases of duties enforceable either _ex contractu_ or _ex delicto_ at the option of the pleader and cases where the most astute pleader is hard pushed to choose have driven us to seek something better. Obligation, the Roman term, meaning the relation of the parties to what the analytical jurists have called a right _in personam_ is an exotic in our law in that sense. Moreover the relation is not the significant thing for systematic purposes, as is shown by civilian tendencies in the phrases "active obligation" and "passive obligation" to extend the term from the relation to the capacity or claim to exact and duty to answer to the exaction. The phrase "right _in personam_" and its co-phrase "right _in rem_" are so misleading in their implications, as any teacher soon learns, that we may leave them to the textbooks of analytical jurisprudence. In this lecture, I shall use the simple word "liability" for the situation whereby one may exact legally and the other is legally subjected to the exaction. Using the word in that sense, I shall inquire into the philosophical basis of liability and the system of the law on that subject as related to that basis. Yellowplush said of spelling that every gentleman was entitled to his own. We have no authoritative institutional book of Anglo-American law, enacted by sovereign authority, and hence every teacher of law is entitled to his own terminology. So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, "Buy spear from side or bear it," that is, buy off the feud or fight it out. One who does an injury or stands between an injured person and his vengeance, by protecting a kinsman, a child or a domestic animal that has wrought an injury, must compound for the injury or bear the vengeance of the injured. As the social interest in peace and order--the general security in its lowest terms--comes to be secured more effectively by regulation and ultimate putting down of the feud as a remedy, payment of composition becomes a duty rather than a privilege, or in the case of injuries by persons or things in one's power a duty alternative to a duty of surrendering the offending child or animal. The next step is to measure the composition not in terms of the vengeance to be bought off but in terms of the injury. A final step is to put it in terms of reparation. These steps are taken haltingly and merge into one another, so that we may hear of a "penalty of reparation." But the result is to turn composition for vengeance into reparation for injury. Thus recovery of a sum of money by way of penalty for a delict is the historical starting point of liability. One's neighbor whom one had injured or who had been injured by those whom one harbored was not the only personality that might desire vengeance in a primitive society. One might affront the gods, and by one's impiety in so doing might imperil the general security, since the angered gods were not unlikely to hit out indiscriminately and to cast pestilence or hurl lightning upon just and unjust alike in the community which harbored the impious wrongdoer. Hence if, in making a promise, one called the gods to witness it was needful that politically organized society, taking over a field of social control exercised by the priesthood, give a legal remedy to the promisee lest he invoke the aid of the gods and jeopardize the general security. Again in making a promise one might call the people or the neighborhood to witness and might affront them by calling them to witness in vain. Here, too, the peace was threatened and politically organized society might give a remedy to the promisee, lest he invoke the help of his fellow citizens or his neighbors. A common case might be one where a composition was promised in this way for an injury not included in the detailed tariff of compositions that is the staple of ancient "codes." Another common case was where one who held another's property for some temporary purpose promised to return it. Such a case is lending; for before the days of coined money, the difference between lending a horse to go to the next town and lending ten sheep to enable the borrower to pay a composition is not perceptible. Thus another starting point of liability is recovery of a thing certain, or what was originally the same, a sum certain, promised in such wise as to endanger the general security if the promise is not carried out. In Roman law, the condiction, which is the type of actions _in personam_, and thus the starting point historically of rights _in personam_ and of theories of obligation, was at first a recovery of a thing certain or a sum certain due upon a promise of this sort. In juristic terms, the central idea of the beginnings of liability is duty to make composition for or otherwise avert wrath arising from the affronted dignity of some personality desirous of vengeance, whether an injured individual, a god or a politically organized society. Greek law and Roman law give the name of "insult" to legally cognizable injury to personality. Insult to a neighbor by injury to him or to one of his household, insult to the gods by impious breach of the promise they had witnessed, insult to the people by wanton disregard of the undertaking solemnly made in their presence, threatened the peace and order of society and called for legal remedy. Lawyers begin to generalize and to frame conscious theories in the later part of the stage of the strict law. At first these theories are analytical rather than philosophical. The attempt is to frame general formulas by which the rigid rules of the strict law may be reconciled where they overlap or conflict or may be distinguished in their application where such overlapping or conflict threatens. By this time, the crude beginnings of liability in a duty to compound for insult or affront to man or gods or people, lest they be moved to vengeance, has developed into liability to answer for injuries caused by oneself or done by those persons or those things in one's power, and liability for certain promises made in solemn form. Thus the basis of liability has become twofold. It rests on the one hand upon duty to repair injury. It rests on the other hand upon duty to carry out formal undertakings. It is enough for this stage of legal development that all cases of liability may be referred to these two types and that useful distinctions may be reached therefrom. Consideration of why one should be held to repair injury, and why he should be held to formal undertakings, belongs to a later stage. Juristic theory, beginning in the transition from the strict law to the stage of equity or natural law, becomes a force in the latter stage. As the relations with which the law must deal become more numerous and the situations calling for legal treatment become more complicated, it is no longer possible to have a simple, definite, detailed rule for every sort of case that can come before a tribunal, nor a fixed, absolute form for every legal transaction. Hence, under the leadership of philosophical jurists, men turn to logical development of the "nature" or ideal form of situations and to ethical ideas of what "good faith" or "good conscience" demands in particular relations or transactions. The strict law, relying on rule and form, took no account of intention as such. The words took effect quite independently of the thought behind them. But as lawyers began to reflect and to teach something more than a class or professional tradition, as they began to be influenced by philosophy to give over purely mechanical methods and to measure things by reason rather than by arbitrary will, emphasis shifted from form to substance; from the letter to the spirit and intent. The statute was thought of as but the lawmaker's formulation of a principle of natural law. It was not the _uerba_ that were efficacious, as in the strict law, which had inherited the primitive faith in the power of words and thought of the legal formula as if it were a formula of incantation possessing inherent magical force. It was the _ratio iuris_, which transcended words and formulas. So also the traditional rule was not a magic formula discovered by our fathers. It was a customary expression of a principle of natural law. Likewise the formal transaction was not a bit of private magic employed to conjure up legal liability. It was the clothing in legally recognized vestments of an intention to do what reason and good faith demand in a given situation. When form and intention concurred the promisor must answer for what he undertook. When the form used did not express or went beyond the intention or was the product of an apparent but not a real intention, the promisee was not to be enriched unjustly at the promisor's expense on the sole basis of the form. Moreover the duty was to be one of doing what good faith demanded, not one of doing literally and exactly what the letter of the undertaking called for. And although there was no express undertaking, there might be duties implied in the relation or situation or transaction, viewed as one of good faith, and one might be held to a standard of action because an upright and diligent man, who was his own master, would so act. Such is the mode of thinking in the classical period of the Roman law and it is closely paralleled by an independent development of juristic thought in the rise of equity and the absorption of the law merchant in our law. It was easy to fit the two categories, delict and formal undertaking, which had come down from the strict law, into the new mode of thought. The typical delict required _dolus_--intentional aggression upon the personality or the substance of another. Indeed Aquilian _culpa_, in which the fault did not extend to intentional aggression, is a juristic equitable development. Hence when the legal was identified with the moral, and such identification is a prime characteristic of this stage, the significant thing in delict seemed to be the moral duty to repair an injury caused by wilful aggression. The legal precept was _alienum non laedere_. Also the duty to perform an intentional undertaking seemed to rest on the inherent moral quality of a promise that made it intrinsically binding on an upright man. The legal precept was _suum cuique tribuere_. Thus liability seemed to flow from intentional action--whether in the form of aggression or in the form of agreement. The "natural" sources of liability were delict and contract. Everything else was assimilated to one or the other of them. Liability without fault was quasi-delictal. Liability imposed by good faith to prevent unjust enrichment was quasi-contractual. The central idea had become one of the demands of good faith in view of intentional action. In the nineteenth century the conception of liability as resting on intention was put in metaphysical rather than ethical form. Law was a realization of the idea of liberty, and existed to bring about the widest possible individual liberty. Liberty was the free will in action. Hence it was the business of the legal order to give the widest effect to the declared will and to impose no duties except in order to effectuate the will or to reconcile the will of one with the will of others by a universal law. What had been a positive, creative theory of developing liability on the basis of intention, became a negative, restraining, one might say pruning, theory of no liability except on the basis of intention. Liability could flow only from culpable conduct or from assumed duties. The abstract individual will was the central point in the theory of liability. If one was not actually culpable and yet established legal precepts which were not to be denied held him answerable, it was because he was "deemed" culpable, the historical legal liability being the proof of culpability. If he had not actually assumed a duty, and yet established legal precepts which were not to be denied held him to answer for it, this must be because he had assumed some relation or professed some calling in which an undertaking to that effect was "implied" or had participated in some situation in which it was "implied,"--the implication being a deduction from the liability. The bases of liability were culpable conduct and legal transaction, and these came down to an ultimate basis in will. The fundamental conception in legal liability was the conception of an act--of a manifestation of the will in the external world. Roman law and English law begin with a set of what might be called nominate delicts or nominate torts. In Roman law there were _furtum_ (conversion), _rapina_ (forcible conversion) and _iniuria_ (wilful aggression upon personality). All these involved _dolus_, i.e. intentional aggression. The _lex Aquilia_ added _damnum iniuria datum_ (wrongful injury to property). Later there were added what might be called the equitable delicts of _dolus_ (fraud) and _metus_ (duress). Here also there was wilful aggression, and the delict of _dolus_ gets its name from the intentional misleading that characterizes it in Roman law as it does deceit in English law. In _damnum iniuria datum_, a wider conception of fault, as distinguished from intentional aggression, grew up by juristic development, and Aquilian _culpa_, that is, a fault causing injury to property and therefore actionable on the analogy of the _lex Aquilia_, furnished the model for the modern law. All these may be fitted to the will theory and modern systematic writers regularly do so. But noxal liability for injury done by a child or slave or domestic animal did not fit it, nor did the liability of a master of a ship, an innkeeper or a stable keeper to respond without regard to fault. Liability for injury done by child or slave or domestic animal was enforced in a noxal action on the analogy of the action which lay for the same injury if done by the defendant in person. Hence procedurally it seemed liability for a delict involving intentional aggression, and it was possible to say that there was fault in not restraining the agency that did the injury, although no fault had to be shown nor could absence of fault be shown as a defence. There was fault because there was liability, for all liability grew out of fault. Such treadings on the tail of its own argument are very common in legal reasoning. Likewise in the case of the absolute liability of the master of a ship, the innkeeper and the stable keeper, the institutional writers could say that they were at fault in not having proper servants, although here also fault need not be established by proof nor could want of fault be made a defence. As procedurally these liabilities arose in actions on the facts of particular cases, the jurists at first lumped them with many other forms of liability, which were not in fact dependent on intention and were enforced in actions _in factum_, as obligations arising from the special facts of cases (_obligationes ex uariis causarum figuris_). Later they were called quasi-delictual obligations and they are so designated in the fourfold classification of the Institutes. Buckland has remarked that in almost all of the liabilities included under quasi-delict in the Institutes there is liability at one's peril for the act of another, especially for one's servant, as in the noxal actions, the _actio de deiectis et diffusis_ (for things thrown or poured from buildings upon a way) and the _actio de recepto_ against an innkeeper. In other words, in these cases one was held without regard to fault for injuries incidental to the conduct of certain enterprises or callings and for failure to restrain potentially injurious agencies which one maintained. Modern law has given up both the nominate delicts and quasi-delict, as things of any significance. The French civil code made the idea of Aquilian _culpa_ into a general theory of delictal liability, saying, "Every act of man which causes damage to another obliges him through whose fault it happened to make reparation." In other words, liability is to be based on an act, and it must be a culpable act. Act, culpability, causation, damage, were the elements. This simple theory of liability for culpable causation of damage was accepted universally by civilians until late in the nineteenth century and is still orthodox. Taken up by text writers on torts in the last half of that century, it had much influence in Anglo-American law. But along with this generalization the French code preserved a liability without fault, developed out of the noxal actions, whereby parents and teachers may be held for injuries by minors under their charge, masters for injuries by their apprentices, employers for injuries by employees and those in charge of animals for injuries by such animals. Also it provided an absolute liability for injury by a _res ruinosa_, developed out of the Roman _cautio damni infecti_. In the case of parents, teachers and masters of apprentices, there is only a presumption of fault. They may escape by showing affirmatively that they were without fault and that what happened could not have been prevented by diligence on their part. In the case of employers no excuse is admitted. The liability is absolute. In the case of animals, fault of the victim, inevitable accident and _vis maior_ may be shown affirmatively by way of defence. In the case of a _res ruinosa_ there is no presumption of fault. But if the structure fell or did injury because of a defect of construction or want of repair, the owner is liable absolutely and may not show that he had no notice of the defect and no reason to suspect it, or that it was not in his power to prevent the structure from falling. Thus it will be seen that French law came very near to a logically consistent scheme of liability for fault, and civil liability for fault only, throughout the whole delictal field. Employer's liability remained absolute, and liability for animals but little short of absolute. For the rest there was in certain cases an imposition of the burden of proof that there had been no fault, leaving the ultimate liability to rest upon a presumed fault, if want of fault was not established. None the less this, the most thoroughgoing attempt to make delictal liability flow exclusively from culpability--to make it a corollary of fault and of fault only--fell short of complete attainment of its aim. Recent French authors do not hesitate to say that the attempt must be given over and that a new theory of civil delictal liability must be worked out. Meanwhile the same movement away from the simple theory of delictal liability for culpable causation of damage had taken place elsewhere on the Continent. Binding had subjected the _culpa-prinzip_ to thorough analysis, and following him it had come to be rejected generally by recent German and Swiss jurists. In the common law, as has been said, we begin likewise with a set of nominate torts--assault, battery, imprisonment, trespass on lands, trespass on chattels, conversion, deceit, malicious prosecution, slander and libel--developed procedurally through the action of trespass and the action of trespass on the case. All of these, except trespass on lands, trespass upon possession of chattels and conversion, are cases of intentional injury. Trespass on lands, trespass on chattels and conversion involve more than the general security and must be considered in connection with ideas of property. The social interest in security of acquisitions demands that we be able to rely on others keeping off of our lands and not molesting our chattels; that they find out for themselves and at their own risk where they are or with whose chattels they are meddling. But even here there must be an act. If there is no act, there is no liability. To these nominate torts, each with its own special rules, coming down from the strict law, we added a new ground of liability, namely, negligence, going on a principle, not of duty to answer for aggression, but of duty to answer for injuries resulting from falling short of a legal standard of conduct governing affirmative courses of action. Some, indeed, sought to give us a "tort of negligence" as a nominate tort. But it was soon recognized that in negligence we have a principle of liability dependent upon a standard, not a tort to be ranged alongside of assault or imprisonment. Later, with the rise of doctrines as to injury to advantageous relations and the failure of negligence to account for all unintended harms of which the law actually was taking note, we developed an indefinite number of innominate torts. Today with the obsolescence of procedural difficulties, there is no reason why we should not generalize, as the civil law did at the beginning of the last century; and such a generalization was attempted in the last third of the nineteenth century. It became orthodox common law that liability was a corollary of fault. So far as established common-law rules imposed a liability without fault, they were said to be historical exceptions, and some of our courts, under the influence of this theory, were willing to go a long way in abrogating them. Liability, without regard to fault, for the acts of servants and employees was reconciled with this theory by the fiction of representation, exposed long ago by Mr. Justice Holmes and later by Dr. Baty. Finally it came to be thought that no liability without fault was not merely common law but was natural law and that any legislative imposition of such liability was arbitrary and unreasonable in itself and hence unconstitutional. On that theory, the New York Court of Appeals held workmen's compensation unconstitutional, and a minority of the Supreme Court of the United States recently announced the same proposition. Because of its implications for constitutional law, in view of the increasing frequency of legislation imposing responsibility at one's peril in certain enterprises, in the case of certain dangerous agencies and in situations where it is felt that the loss should be borne by all of us rather than by the luckless individual who chances to be hurt, the basis of tort liability has become a question of moment beyond the immediate law of torts. It is a practical question of the first importance, as well as a theoretical question of interest, whether we are to generalize our whole system of tort liability by means of one principle of liability for fault and for fault only, as the French sought to do and as we later sought to do largely under their influence, or, on the other hand, are to admit another source of delictal liability alongside of fault, as the French law does in fact and is coming to do in theory, and as our law has always done in fact. For in our law as it stands one may perceive readily three types of delictual liability: (1) Liability for intentional harm, (2) liability for unintentional culpable harm, (3) liability in certain cases for unintended non-culpable harm. The first two comport with the doctrine of no liability without fault. The third cannot be fitted thereto. We must either brand cases of the third type as historical anomalies, of which we are gradually to rid ourselves, or else revise our notions of tort liability. Let us remember that the nineteenth century was well advanced before we understood the subject of negligence and that before we had convinced ourselves that no liability without fault was orthodox common law, the highest court of England had given absolute liability a new field by the decision in _Rylands_ v. _Fletcher_. We are not questioning a long-established dogma in Anglo-American administration of justice, therefore, when we ask whether the orthodox theory of the last generation is adequate as an analytical statement of the law that is, or as a philosophical theory of the law that ought to be. My own belief is that it is neither. Suppose that instead of beginning with the individual free will we begin with the wants or claims involved in civilized society--as it has been put, with the jural postulates of civilized society. One such postulate, I think we should agree, is that in civilized society men must be able to assume that others will do them no intended injury--that others will commit no intentional aggressions upon them. The savage must move stealthily, avoid the sky-line and go armed. The civilized man assumes that no one will attack him and so moves among his fellow men openly and unarmed, going about his business in a minute division of labor. Otherwise there could be no division of labor beyond the differentiation of men of fighting age, as we see it in a primitive society. This postulate is at the foundation of civilized society. Everywhere _dolus_ is first dealt with. The system of nominate delicts or nominate torts, both in Roman law and in our law, proceeds on this postulate. Is it not another such postulate that in civilized society men must be able to assume that their fellow men, when they act affirmatively, will do so with due care, that is with the care which the ordinary understanding and moral sense of the community exacts, with respect to consequences that may reasonably be anticipated? Such a postulate is the basis of delictal _culpa_, using _culpa_ in the narrower sense, and of our doctrine of negligence. In Roman law and at one time in our law attempts were made to develop this postulate contractually. If in a transaction involving good faith--that is an informal legal transaction--one's conduct fell short of action to which the other party was justified by the understanding of upright men in expecting him to adhere, there was contractual _culpa_; there was a violation of a promise implied in the transaction and consequent liability. We borrowed something of this mode of thought from the Romans in our law of bailments and hence think indifferently in terms of tort or contract in that connection, although historically our action for such cases is delictal. In other connections also our law for a time sought to develop this postulate contractually by means of an "implied undertaking to use skill" for which one must answer if his skill fell short of that which the legal standard of affirmative conduct called for under the circumstances. Also in the Year Books an undertaking implied in certain relations or callings to use the skill or diligence which the relation or calling demanded is often made the basis of liability. But here the basis of liability must be found in a relation. The fiction of an undertaking to use the skill or diligence involved in a relation or calling is a juristic way of saying that one who deals with another in such a relation or with another who professes such a calling is justified in assuming the skill and diligence ordinarily involved therein, so that the law holds those in the relation or engaged in the calling to that standard in order to maintain the general security. In other words another, though closely related, postulate of civilized society is involved. It is worth a moment's digression to suggest that such things show how little the historical categories of delict and contract represent any essential or inherent need of legal thinking. Austin thought that "the distinction of obligations (or of duties corresponding to rights against persons specifically determined) into obligations which arise from contracts, obligations which arise from injuries, and obligations which arise from incidents which are neither contracts nor injuries," was a "necessary distinction," without which a "system of law evolved in a refined community" could not be conceived. This "necessary" systematic scheme, which must be "a constituent part" of any imaginable developed legal system, is but the Roman division into obligations _ex contractu_, obligations _ex delicto_ and obligations _ex uariis causarum figuris_, in which the third category is obviously a catch-all. In trying to fit our law into this necessary scheme, we find three types of cases must go in the third: (a) Duties or liabilities attached by law to a relation, (b) duties imposed by law to prevent unjust enrichment, (c) duties involved in an office or calling. In the third of these our Anglo-American procedure allows recovery either _ex delicto_ or _ex contractu_. In the second our law sometimes goes on a property theory of constructive trust. In the first duties are sometimes sanctioned affirmatively by conferring legal powers or negatively by legal non-restraint of natural powers, as in the law of domestic relations, where the wife has a power to pledge the husband's credit for necessaries and the law does not interfere with the parent's administering reasonable "correction" to the child. Are we to say that these dogmatic departures of our law from the Roman scheme are inconceivable or that because of them our law is not matured or was not "evolved in a refined community?" Or are we to say that Austin derived his systematic ideas, not from scientific study of English law, but from scientific study of Roman law in a German university? Are we to say that we cannot "imagine coherently" a system of law which enforces warranties indifferently _ex contractu_ or _ex delicto_ as our law does, or which goes further and applies the contract measure of damage _ex delicto_ as does the law of Massachusetts? But enough of this. What we have here is not any necessary distinction. It is rather what Austin calls a "pervading notion," to be found generally in the systematic ideas of developed legal systems by derivation from the Roman books. Roman law may have a contractual conception of obligation _ex delicto_--thinking of the delict as giving rise to a debt--and the common law a delictual conception of liability upon contract--thinking in terms of recovery of damages for the wrong of breaking a promise--without much difference in the ultimate results. The fundamental things are not tort and contract but justifiable assumptions as to the mode in which one's fellow men will act in civilized society in many different situations of which aggression and undertaking are but two common types. Returning to our second postulate of due care in affirmative courses of conduct, we may note that in the society of today it is no less fundamental than the postulate of no intentional aggression. Aggression is the chief if not the only form of anti-social conduct in a primitive society. Indeed, a Greek writer on law and politics of the fifth century B. C. knew of no other subject of legal precepts. But with the development of machinery and consequent increase in human powers of action, the general security comes to be threatened quite as much by the way in which one does things as by what he does. Carelessness becomes a more frequent and more serious source of danger to the general security than aggression. Hence a set of nominate delicts requiring _dolus_ is supplemented by a theory of _culpa_. Hence a set of nominate torts, characterized by intentional aggression, is supplemented by liability for negligence, and the latter becomes the more important source of legal liability in practice. Must we not recognize also a third postulate, namely, that men must be able to assume that others, who keep things or maintain conditions or employ agencies that are likely to get out of hand or escape and do damage, will restrain them or keep them within proper bounds? Just as we may not go effectively about our several businesses in a society dependent on a minute division of labor if we must constantly be on guard against the aggressions or the want of forethought of our neighbor, so our complex social order based on division of labor may not function effectively if each of us must stay his activities through fear of the breaking loose or getting out of hand of something which his neighbor harbors or maintains. There is danger to the general security not only in what men do and the way in which they do it, but also in what they fail to do in not restraining things they maintain or agencies they employ which may do injury if not kept strictly in hand. The general security is threatened by wilful aggression, by affirmative action without due regard for others in the mode of conducting it, and by harboring and maintaining things and employing agencies likely to escape or to go out of bounds and do damage. Looked at in this way, the ultimate basis of delictal liability is the social interest in the general security. This interest is threatened or infringed in three ways: (1) Intentional aggression, (2) negligent action, (3) failure to restrain potentially dangerous things which one maintains or potentially dangerous agencies which one employs. Accordingly these three are the immediate bases of delictal liability. Controversial cases of liability without fault involve the third postulate. Systematic writers have found no difficulty in reconciling the law of negligence with the will theory of liability and the doctrine of no liability without fault. Yet they must use the term fault in a strained sense in order to fit our law of negligence with its objective standard of due care, or the Roman cases of liability for _culpa_ judged by the abstract standard, into any theory of moral blameworthiness. The doctrine of liability for fault and for fault only has its roots in the stage of equity and natural law, when the moral and the legal are identified, and means that one shall respond for injuries due to morally blameworthy conduct upon his part. As Ames puts it, "the unmoral standard of acting at one's peril" is replaced by the question, "Was the act blameworthy?" But is an act blameworthy because the actor has a slow reaction time or was born impulsive or is naturally timid or is easily "rattled" and hence in an emergency does not come up to the standard of what a reasonably prudent man would do in such an emergency, as applied _ex post facto_ by twelve average men in the jury box? If our use of "culpable" here were not, as it were, Pickwickian, we should allow the defendant in such cases to show what sort of man nature had made him and to call for individualization with respect to his character and temperament as well as with respect to the circumstances under which he acted. As the Romanist would say, we should apply a concrete standard of _culpa_. But what the law is really regarding is not his culpable exercise of his will but the danger to the general security if he and his fellows act affirmatively without coming up to the standard imposed to maintain that security. If he acts, he must measure up to that standard at his peril of answering for injurious consequences. Whenever a case of negligence calls for sharp application of the objective standard, fault is as much a dogmatic fiction as is representation in the liability of the master for the torts of his servant. In each case the exigencies of the will theory lead us to cover up a liability irrespective of fault, imposed to maintain the general security, by a conclusive imputation of fault to one who may be morally blameless. This is no less true of cases where we speak of "negligence _per se_." Reconciliation of common-law absolute liabilities for the getting out of hand of things likely to escape and do damage with the doctrine of no liability without fault has been sought by means of a fiction of negligence, by pronouncing them disappearing historical anomalies, by an economic interpretation that regards them as results of class interest distorting the law, and by a theory of _res ipsa loquitur_. Blackstone resorted to the first of these. "A man is answerable," he said, "for not only his own trespass but for that of his cattle also; for if by his negligent keeping they stray upon the land of another ... this is a trespass for which the owner must answer in damages." But note that the negligence here is a dogmatic fiction. No proof of negligence is required of the plaintiff, nor may the defendant show that there was in fact no negligence. The negligence is established by the liability, not the liability by the negligence. In the last century it was usual to refer to absolute liability for trespassing animals, for injuries by wild animals and for injuries by domestic animals, known to be vicious, as disappearing rudiments of the old liability to make composition. The common American doctrine as to cattle running at large upon uncultivated lands seemed to confirm this. Yet one need but look beneath the surface to see that the English rule was rejected for a time in America, not because it was in conflict with a fundamental principle of no liability without fault, but because it presupposed a settled community, where it was contrary to the general security to turn cattle out to graze, whereas in pioneer American communities of the past vacant lands which were owned and those which were not owned could not be distinguished and the grazing resources of the community were often its most important resources. The common-law rule, without regard to its basis, was for a time inapplicable to local conditions. It is significant that as the conditions that made the rule inapplicable have come to an end the rule has generally re-established itself. In England it is in full vigor so that the owner of trespassing animals is held for disease communicated by them although he had no knowledge or reason to suppose they were diseased. A rule that can re-establish itself and extend its scope in this way is not moribund. It must have behind it some basis in the securing of social interests. Nor have the attempts of some American courts to narrow common-law liability for injuries by known vicious animals to cases of negligent keeping made much headway. The weight of American authority remains with the common-law rule and in England the Court of Appeal has carried the rule out to the extent of holding the owner notwithstanding the animal was turned loose by the wrongful act of an intermeddling third person. Nor have the predictions that the doctrine of _Rylands_ v. _Fletcher_ would disappear from the law through the courts' smothering it with exceptions--predictions commonly made at the end of the last century--been verified in the event. In 1914 the English courts refused to limit the doctrine to adjacent free-holders and they have since extended it to new situations. Moreover in America, where we had been told it was decisively rejected, it has been applied in the past decade by more than one court. The leading American cases that profess to reject the doctrine did not involve it nor did they involve the postulate of civilized society on which, as I think, it is based. Also the Court of Appeals of New York, the leading exponent of no liability without fault, had theretofore imposed a liability without regard to negligence in the case of blasting. An ingenious explanation of the doctrine of _Rylands_ v. _Fletcher_ by means of the economic interpretation of legal history demands more notice. We are told that the English courts were manned by landowners or by judges drawn from the land-owning class; that the doctrine of _Rylands_ v. _Fletcher_ is a doctrine for landowners and so was not accepted by artisans in the United States. But consider which states applied the rule and which rejected it. It was applied in Massachusetts in 1872, in Minnesota in 1872, in Ohio in 1896, in West Virginia in 1911, in Missouri in 1913, in Texas in 1916. It was rejected by New Hampshire in 1873, by New York in 1873, by New Jersey in 1876, by Pennsylvania in 1886, by California in 1895, by Kentucky in 1903, by Indiana in 1911. Is New York a community of artisans but Massachusetts a community of landowners? Did the United States begin to change from a country of artisans to one of landowners about the year 1910 so that a drift toward the doctrine began at that time after a steady rejection of it between 1873 and 1896? _Rylands_ v. _Fletcher_ was decided in 1867 and is connected with the movement Dicey calls collectivism, which, he says, began in 1865. It is a reaction from the notion of liability merely as a corollary of culpability. It restrains the use of land in the interest of the general security. If this view is well taken, if it was an attempt to take account of the social interest in the general security in a crowded country, this may explain the reluctance with which it was received in the United States at first, where pioneer ideas, appropriate to a less crowded agricultural country, lingered at least to the end of the nineteenth century. In the actual American decisions, some follow _Rylands_ v. _Fletcher_ as an authoritative statement of the common law. Other cases go rather on the principle that liability flows from culpability. Agricultural states and industrial states alike divide along these doctrinal lines. Massachusetts and Pennsylvania, both industrial states, are on opposite sides. So are Texas and Kentucky, which are agricultural states. Massachusetts and New Jersey, each with an appointive bench, are on opposite sides, and so are Ohio and New York, each with an elective bench. In truth the Massachusetts court followed authority. In New Hampshire Chief Justice Doe was not willing to go on mere authority and decided on the general principle that liability must flow from fault. Another view is that the doctrine of _Rylands_ v. _Fletcher_ is a crude attempt, when negligence and the doctrine of _res ipsa loquitur_ were none too well understood, to apply the principle of the latter doctrine, and that those doctrines will suffice to reach the actual result. No doubt _res ipsa loquitur_ gives a possible mode of treating cases where one maintains something likely to get out of hand and do injury. For four possible solutions may be found for such cases. One is absolute liability, as in _Rylands_ v. _Fletcher_. Another is to put the burden of proof of due care on the defendant, as French law does in some cases and as is done by some American decisions and some statutes in case of fires set by locomotives. A third is to apply the doctrine of _res ipsa loquitur_. A fourth would be to require the plaintiff to prove negligence, as is done by the Supreme Court of New Jersey where a known vicious animal breaks loose. That the fourth, which is the solution required by the theory of no liability without fault, has found but two courts to uphold it, and that only in the case of vicious domestic animals, is suggestive. _Res ipsa loquitur_ may easily run into a dogmatic fiction, and must do so, if made to achieve the result of the doctrine of _Rylands_ v. _Fletcher_, which does not permit the defendant to go forward with proof, short of _vis maior_ or the unanticipated unlawful act of a third person beyond defendant's control. The vitality and persistence of the doctrine against theoretical assault for more than a generation show that it is more than a historical anomaly or a dogmatic blunder. Another type of common-law liability without fault, the so-called liability of the carrier as an insurer and the liability of the innkeeper, is relational and depends upon a different postulate. Nineteenth-century courts in the United States endeavored to hold down the former, restricting it because of its inconsistency with the doctrine of liability as a corollary of fault. But it has proved to have abundant vitality, has been extended by legislation in some states to carriers of passengers and has been upheld by recent legislation everywhere. Two other types of liability, contractual and relational, must receive brief notice. The former has long done valiant service for the will theory. Not only liability arising from legal transactions but liability attached to an office or calling, liability attached to relations and liability to restitution in case of unjust enrichment have been referred to express or implied undertaking and hence to the will of the person held. But beneath the surface the so-called contract by estoppel, the cases of acceptance of a wrongly transmitted offer, the doctrine that a public utility has no general power of contract as to facilities or rates except to liquidate the terms of its relational duties in certain doubtful cases, and cases of imposition of duties on husband or wife after marriage by change of law, have caused persistent and recurring difficulties and call everywhere for a revision of our ideas. Also the objective theory of contract has undermined the very citadel of the will theory. May we not refer these phenomena, not to the will of the person bound, but to another postulate of civilized society and its corollaries? May we not say that in civilized society men must be able to assume that those with whom they deal in the general intercourse of society will act in good faith? If so, four corollaries will serve as the bases of four types of liability. For it will follow that they must be able to assume (a) that their fellow men will make good reasonable expectations created by their promises or other conduct, (b) that they will carry out their undertakings according to the expectation which the moral sentiment of the community attaches thereto, (c) that they will conduct themselves with zeal and fidelity in relations, offices and callings, and (d) that they will restore in specie or by equivalent what comes to them by mistake or unanticipated situation whereby they receive what they could not have expected reasonably to receive under such circumstances. Thus we come back to the idea of good faith, the idea of the classical Roman jurists and of the philosophical jurists of the seventeenth century, out of which the will theory was but a metaphysical development. Only we give it a basis in social philosophy where they sought a basis in theories of the nature of transactions or of the nature of man as a moral creature. Looking back over the whole subject, shall we not explain more phenomena and explain them better by saying that the law enforces the reasonable expectations arising out of conduct, relations and situations, instead of that it proceeds upon willed action and willed action only, enforcing the willed consequences of declared intention, enforcing reparation for willed aggression and enforcing reparation for culpable carrying on of willed conduct? If we explain more and explain it more completely by saying that the ultimate thing in the theory of liability is justifiable reliance under the conditions of civilized society than by saying that it is free will, we shall have done all that we may hope to do by any theory. V Property Economic life of the individual in society, as we know it, involves four claims. One is a claim to the control of certain corporeal things, the natural media on which human existence depends. Another is a claim to freedom of industry and contract as an individual asset, apart from free exercise of one's powers as a phase of personality, since in a highly organized society the general existence may depend to a large extent upon individual labor in specialized occupations, and the power to labor freely at one's chosen occupation may be one's chief asset. Third, there is a claim to promised advantages, to promised performances of pecuniary value by others, since in a complex economic organization with minute division of labor and enterprises extending over long periods, credit more and more replaces corporeal wealth as the medium of exchange and agency of commercial activity. Fourth, there is a claim to be secured against interference by outsiders with economically advantageous relations with others, whether contractual, social, business, official or domestic. For not only do various relations which have an economic value involve claims against the other party to the relation, which one may demand that the law secure, but they also involve claims against the world at large that these advantageous relations, which form an important part of the substance of the individual, shall not be interfered with. Legal recognition of these individual claims, legal delimitation and securing of individual interests of substance is at the foundation of our economic organization of society. In civilized society men must be able to assume that they may control, for purposes beneficial to themselves, what they have discovered and appropriated to their own use, what they have created by their own labor and what they have acquired under the existing social and economic order. This is a jural postulate of civilized society as we know it. The law of property in the widest sense, including incorporeal property and the growing doctrines as to protection of economically advantageous relations, gives effect to the social want or demand formulated in this postulate. So also does the law of contract in an economic order based upon credit. A social interest in the security of acquisitions and a social interest in the security of transactions are the forms of the interest in the general security which give the law most to do. The general safety, peace and order and the general health are secured for the most part by police and administrative agencies. Property and contract, security of acquisitions and security of transactions are the domain in which law is most effective and is chiefly invoked. Hence property and contract are the two subjects about which philosophy of law has had the most to say. In the law of liability, both for injuries and for undertakings, philosophical theories have had much influence in shaping the actual law. If they have grown out of attempts to understand and explain existing legal precepts, yet they have furnished a critique by which to judge those precepts, to shape them for the future and to build new ones out of them or upon them. This is much less true of philosophical theories of property. Their rôle has not been critical or creative but explanatory. They have not shown how to build but have sought to satisfy men with what they had built already. Examination of these theories is an illuminating study of how philosophical theories of law grow out of the facts of time and place as explanations thereof and then are given universal application as necessarily explanatory or determinative of social and legal phenomena for all time and in every place. It has been said that the philosophy of law seeks the permanent or enduring element in the law of the time and place. It would be quite as true to say that it seeks to find in the law of the time and place a permanent or enduring picture of universal law. It has been said that the individual in civilized society claims to control and to apply to his purposes what he discovers and reduces to his power, what he creates by his labor, physical or mental, and what he acquires under the prevailing social, economic or legal system by exchange, purchase, gift or succession. The first and second of these have always been spoken of as giving a "natural" title to property. Thus the Romans spoke of them as modes of "natural acquisition" by occupation or by specification (making a species, i.e., creation). Indeed, taking possession of what one discovers is so in accord with a fundamental human instinct that discovery and occupation have stood in the books ever since substantially as the Romans stated them. A striking example of the extent to which this doctrine responds to deep-seated human tendencies is afforded by the customs as to discovery of mineral on the public domain upon which American mining law is founded and the customs of the old whale-fishery as to fast-fish and loose-fish which were recognized and given effect by the courts. But there is a difficulty in the case of creation or specification in that except where the creation is mental only materials must be used, and the materials or tools employed may be another's. Hence Grotius reduced creation by labor to occupation, since if one made from what he discovered, the materials were his by occupation, and if not, the title of others to the materials was decisive. This controversy as to the respective claims of him who creates by labor and him who furnishes the materials goes back to the Roman jurists of the classical period. The Proculians awarded the thing made to the maker because as such it had not existed previously. The Sabinians awarded it to the owner of the materials because without materials the new thing could not have been made. In the maturity of Roman law a compromise was made, and various compromises have obtained ever since. In modern times, however, the claim of him who creates has been urged by a long line of writers beginning with Locke and culminating in the socialists. The Romans spoke of what one acquired under the prevailing social, economic or legal system as held by "civil" acquisition and conceived that the principle _suum cuique tribuere_ secured the thing so acquired as being one's own. Roman jurists recognized that certain things were not subject to acquisition in any of the foregoing ways. Under the influence of the Stoic idea of _naturalis ratio_ they conceived that most things were destined by nature to be controlled by man. Such control expressed their natural purpose. Some things, however, were not destined to be controlled by individuals. Individual control would run counter to their natural purpose. Hence they could not be the subjects of private ownership. Such things were called _res extra commercium_. They might be excluded from the possibility of individual ownership in any of three ways. It might be that from their nature they could only be used, not owned, and from their nature they were adapted to general use. These were _res communes_. Or it might be that they were made for or from their nature they were adapted to public use, that is use for public purposes by public functionaries or by the political community. These were _res publicae_. Again it might be because they had been devoted to religious purposes or consecrated by religious acts inconsistent with private ownership. Such things were _res sanctae_, _res sacrae_ and _res religiosae_. In modern law, as a result of the medieval confusion of the power of the sovereign to regulate the use of things (_imperium_) with ownership (_dominium_) and of the idea of the corporate personality of the state, we have made the second category into property of public corporations. And this has required modern systematic writers to distinguish between those things which cannot be owned at all, such as human beings, things which may be owned by public corporations but may not be transferred, and things which are owned by public corporations in full dominion. We are also tending to limit the idea of discovery and occupation by making _res nullius_ (e.g., wild game) into _res publicae_ and to justify a more stringent regulation of individual use of _res communes_ (e.g., of the use of running water for irrigation or for power) by declaring that they are the property of the state or are "owned by the state in trust for the people." It should be said, however, that while in form our courts and legislatures seem thus to have reduced everything but the air and the high seas to ownership, in fact the so-called state ownership of _res communes_ and _res nullius_ is only a sort of guardianship for social purposes. It is _imperium_, not _dominium_. The state as a corporation does not own a river as it owns the furniture in the state house. It does not own wild game as it owns the cash in the vaults of the treasury. What is meant is that conservation of important social resources requires regulation of the use of _res communes_ to eliminate friction and prevent waste, and requires limitation of the times when, places where and persons by whom _res nullius_ may be acquired in order to prevent their extermination. Our modern way of putting it is only an incident of the nineteenth-century dogma that everything must be owned. It is not hard to see how the Romans came to the distinction that has obtained in the books ever since. Some things were part of the Roman's _familia_, were used by him upon the public domain which he occupied or were traded by him to those with whom he had legal power of commercial intercourse. He acquired them by discovery, by capture in war, by labor in agriculture or as an artisan, by commercial transactions or by inheritance. For these things private actions lay. Other things were no part of his or of anyone's household. They were used for political or military or religious purposes or, like rivers, were put to use by everyone without being consumed thereby. As to these, the magisterial rather than the judicial power had to be invoked. They were protected or use of them was regulated and secured by interdicts. One could not acquire them so as to maintain a private action for them. Thus some things could be acquired and conveyed and some could not. In order to be valid, however, according to juristic theory the distinction must lie in the nature of things, and it was generalized accordingly. In a time when large unoccupied areas were open to settlement and abundant natural resources were waiting to be discovered and developed, a theory of acquisition by discovery and appropriation of _res nullius_, reserving a few things as _res extra commercium_, did not involve serious difficulty. On the other hand, in a crowded world, the theory of _res extra commercium_ comes to seem inconsistent with private property and the theory of discovery and occupation to involve waste of social resources. As to the latter, we may compare the law of mining and of water rights on the public domain, which developed along lines of discovery and reduction to possession under the conditions of 1849 and the federal legislation of 1866 and 1872, with recent legislation proceeding on ideas of conservation of natural resources. The former requires more consideration. For the argument that excludes some things from private ownership may seem to apply more and more to land and even to movables. Thus Herbert Spencer says, in explaining _res communes_: "If one individual interferes with the relations of another to the natural media upon which the latter's life depends, he infringes the like liberties of others by which his own are measured." But if this is true of air and of light and of running water, men will insist upon inquiring why it is not true of land, of articles of food, of tools and implements, of capital and even, it may be, of the luxuries upon which a truly human life depends. Accordingly, how to give a rational account of the so-called natural right of property and how to fix the natural limits of that right became vexed questions of philosophical jurisprudence. Antiquity was content to maintain the economic and social _status quo_ or at least to idealize it and maintain it in an ideal form. The Middle Ages were content to accept _suum cuique tribuere_ as conclusive. It was enough that acquisition of land and movables and private ownership of them were part of the existing social system. Upon the downfall of authority, seventeenth-and eighteenth-century jurists sought to put natural reason behind private property as behind all other institutions. When Kant had undermined this foundation, the nineteenth-century philosophical jurists sought to deduce property from a fundamental metaphysical datum; the historical jurists sought to record the unfolding of the idea of private property in human experience, thus showing the universal idea; the utilitarian demonstrated private property by his fundamental test and the positivist established its validity and necessity by observation of human institutions and their evolution. In other words, here as elsewhere, when eighteenth-century natural law broke down, jurists sought to put new foundations under the old structure of natural rights, just as natural rights had been put as a new foundation to support institutions which theretofore had found a sufficient basis in authority. Theories by which men have sought to give a rational account of private property as a social and legal institution may be arranged conveniently in six principal groups, each including many forms. These groups may be called: (1) Natural-law theories, (2) metaphysical theories, (3) historical theories, (4) positive theories, (5) psychological theories and (6) sociological theories. Of the natural-law theories, some proceed on a conception of principles of natural reason derived from the nature of things, some on conceptions of human nature. The former continue the ideas of the Roman lawyers. They start with a definite principle found as the explanation of a concrete case and make it a universal foundation for a general law of property. As it has been put, they find a postulate of property and derive property therefrom by deduction. Such theories usually start either from the idea of occupation or from the idea of creation through labor. Theories purporting to be based on human nature are of three forms. Some proceed on a conception of natural rights, taken to be qualities of human nature reached by reasoning as to the nature of the abstract man. Others proceed upon the basis of a social contract expressing or guaranteeing the rights derived by reason from the nature of man in the abstract. In recent thinking a third form has arisen which may be called an economic natural law. In this form of theory, a general foundation for property is derived from the economic nature of man or from the nature of man as an economic entity. These are modern theories of natural law on an economic instead of an ethical basis. Grotius and Pufendorf may be taken as types of the older natural-law theories of property. According to Grotius, all things originally were _res nullius_. But men in society came to a division of things by agreement. Things not so divided were afterward discovered by individuals and reduced to possession. Thus things came to be subjected to individual control. A complete power of disposition was deduced from this individual control, as something logically implied therein, and this power of disposition furnished the basis for acquisition from others whose titles rested directly or indirectly upon the natural foundation of the original division by agreement or of subsequent discovery and occupation. Moreover, it could be argued that the control of an owner, in order to be complete, must include not only the power to give _inter vivos_ but also the power to provide for devolution after death as a sort of postponed gift. Thus a complete system of natural rights of property was made to rest mediately or immediately upon a postulated original division by agreement or a subsequent discovery and occupation. This theory should be considered in the light of the facts of the subject on which Grotius wrote and of the time when he wrote. He wrote on international law in the period of expansion and colonization at the beginning of the seventeenth century. His discussion of the philosophical foundation of property was meant as a preliminary to consideration of the title of states to their territorial domain. As things were, the territories of states had come down in part from the past. The titles rested on a sort of rough adjustment among the invaders of the Roman empire. They could be idealized as the result of a division by agreement and of successions to, or acquisitions from, those who participated therein. Another part represented new "natural" titles based on discovery and occupation in the new world. Thus a Romanized, idealized scheme of the titles by which European states of the seventeenth century held their territories becomes a universal theory of property. Pufendorf rests his whole theory upon an original pact. He argues that there was in the beginning a "negative community." That is, all things were originally _res communes_. No one owned them. They were subject to use by all. This is called a negative community to distinguish it from affirmative ownership by co-owners. He declares that men abolished the negative community by mutual agreement and thus established private ownership. Either by the terms of this pact or by a necessary implication what was not occupied then and there was subject to acquisition by discovery and occupation, and derivative acquisition of titles proceeding from the abolition of the negative community was conceived to be a further necessary implication. In Anglo-American law, the justification of property on a natural principle of occupation of ownerless things got currency through Blackstone. As between Locke on the one side and Grotius and Pufendorf on the other, Blackstone was not willing to commit himself to the need of assuming an original pact. Apparently he held that a principle of acquisition by a temporary power of control co-extensive with possession expressed the nature of man in primitive times and that afterwards, with the growth of civilization, the nature of man in a civilized society was expressed by a principle of complete permanent control of what had been occupied exclusively, including as a necessary incident of such control the _ius disponendi_. Maine has pointed out that this distinction between an earlier and a later stage in the natural right of property grew out of desire to bring the theory into accord with Scriptural accounts of the Patriarchs and their relations to the land grazed by their flocks. In either event the ultimate basis is taken to be the nature of man as a rational creature, expressed in a natural principle of control of things through occupation or in an original contract providing for such ownership. With the revival of natural law in recent years a new phase of the justification of property upon the basis of human nature has arisen. This was suggested first by economists who deduced property from the economic nature of man as a necessity of the economic life of the individual in society. Usually it is coupled with a psychological theory on the one side and a social-utilitarian theory on the other side. In the hands of writers on philosophy of law it has often taken on a metaphysical color. From another standpoint, what are essentially natural-law theories have been advocated by socialists, either deducing a natural right of the laborer to the whole produce of his labor from a "natural" principle of creation or carrying out the idea of natural qualities of the individual human being to the point of denying all private property as a "natural" institution and deducing a general regime of _res communes_ or _res publicae_. Metaphysical theories of property are part of the general movement that replaced seventeenth-and eighteenth-century theories of natural rights, founded on the nature of the abstract man or on an assumed compact, by metaphysical theories. They begin with Kant. He first sets himself to justify the abstract idea of _a_ law of property--the idea of a system of "external _meum_ and _tuum_." Here, as everywhere else, he begins with the inviolability of the individual human personality. A thing is rightfully mine, he says, when I am so connected with it that anyone who uses it without my consent does me an injury. But to justify the law of property we must go beyond cases of possession where there is an actual physical relation to the object and interference therewith is an aggression upon personality. The thing can only be mine for the purposes of a legal system of _meum_ and _tuum_ where I will be wronged by another's use of it when it is not actually in my possession. This raises in the first instance the question "How is a merely juridical or rational [as distinguished from a purely physical] possession possible?" He answers the question by a metaphysical version of the occupation theory of the eighteenth century. Conceding that the idea of a primitive community of things is a fiction, the idea of a logically original community of the soil and of the things upon it, he says, has objective reality and practical juridical reality. Otherwise mere objects of the exercise of the will, exempted therefrom by operation of law, would be raised to the dignity of free-willing subjects, although they have no subjective claim to be respected. Thus the first possessor founds upon a common innate right of taking possession, and to disturb him is a wrong. The first taking of possession has "a title of right" behind it in the principle of the original common claim to possession. It results that this taker obtains a control "realized by the understanding and independent of relations of space," and he or those who derive from him may possess a parcel of land although remote from it physically. Such a possession is only possible in a state of civil society. In civil society, a declaration by word or act that an external thing is mine and making it an object of the exercise of my will is "a juridical act." It involves a declaration that others are under a duty of abstaining from the use of the object. It also involves an admission that I am bound in turn toward all others with respect to the objects they have made "externally theirs." For we are brought to the fundamental principle of justice that requires each to regulate his conduct by a universal rule that will give like effect to the will of others. This is guaranteed by the legal order in civil society and gives us the regime of external mine and thine. Having thus worked out a theory of _meum_ and _tuum_ as legal institutions, Kant turns to a theory of acquisition, distinguishing an original and primary from a derived acquisition. Nothing is originally mine without a juridical act. The elements of this legal transaction of original acquisition are three: (1) "Prehension" of an object which belongs to no one; (2) an act of the free will interdicting all others from using it as theirs; (3) appropriation as a permanent acquisition, receiving a lawmaking force from the principle of reconciling wills according to a universal law, whereby all others are obliged to respect and act in conformity to the will of the appropriator with respect to the thing appropriated. Kant then proceeds to work out a theory of derivative acquisition by transfer or alienation, by delivery or by contract, as a legal giving effect to the individual will by universal rules, not incompatible with a like efficacy in action of all other wills. This metaphysical version of the Roman theory of occupation is evidently the link between the eighteenth century and Savigny's aphorism that all property is founded in adverse possession ripened by prescription. When Kant's theory is examined it will be found to contain both the idea of occupation and the idea of compact. Occupation has become a legal transaction involving a unilateral pact not to disturb others in respect of their occupation of other things. But the pact does not derive its efficacy from the inherent moral force of a promise as such or the nature of man as a moral creature which holds him to promises. Its efficacy is not found in qualities of promises or of men, but in a principle of reconciling wills by a universal law, since that principle requires one who declares his will as to object A to respect the declaration of his neighbor's will as to object B. On the other hand, the idea of creation is significantly absent. Writing at the end of the eighteenth century, in view of the ideas of Rousseau, who held that the man who first laid out a plot of ground and said, "This is mine," should have been lynched, and of the interferings with vested rights in Revolutionary France, Kant was not thinking how those who had not might claim a greater share in what they produced but how those who had might claim to hold what they had. Hegel develops the metaphysical theory further by getting rid of the idea of occupation and treating property as a realization of the idea of liberty. Property, he says, "makes objective my personal, individual will." In order to reach the complete liberty involved in the idea of liberty, one must give his liberty an external sphere. Hence a person has a right to direct his will upon an external object and an object on which it is so directed becomes his. It is not an end in itself; it gets its whole rational significance from his will. Thus when one appropriates a thing, fundamentally he manifests the majesty of his will by demonstrating that external objects that have no wills are not self-sufficient and are not ends in themselves. It follows that the demand for equality in the division of the soil and in other forms of wealth is superficial. For, he argues, differences of wealth are due to accidents of external nature that give to what A has impressed with his will greater value than to what B has impressed with his, and to the infinite diversity of individual mind and character that leads A to attach his will to this and B to attach his will to that. Men are equal as persons. With respect to the principle of possession they stand alike. Everyone must have property of some sort in order to be free. Beyond this, "among persons differently endowed inequality must result and equality would be wrong." Nineteenth-century metaphysical theories of property carry out these ideas or develop this method. And it is to be noted that they are all open to attack from the standpoint of the theory of _res extra commercium_. Thus Hegel's theory comes to this: Personality involves exercise of the will with respect to things. When one has exercised his will with respect to a thing and so has acquired a power of control over it, other wills are excluded from this thing and are to be directed toward objects with which other personalities have not been so identified. So long as there are vacant lands to occupy, undeveloped regions awaiting the pioneer, unexploited natural resources awaiting the prospector--in short, so long as there are enough physical objects in reach, if one may so put it, to go round--this would be consistent with the nineteenth-century theory of justice. But when, as at the end of the nineteenth century, the world becomes crowded and its natural resources have been appropriated and exploited, so that there is a defect in material nature whereby such exercise of the will by some leaves no objects upon which the wills of others may be exerted, or a deficiency such as to prevent any substantial exertion of the will, it is difficult to see how Hegel's argument may be reconciled with the argument put behind the conception of _res extra commercium_. Miller, a Scotch Hegelian, seeks to meet this difficulty. He says that beyond what is needed for the natural existence and development of the person, property "can only be held as a trust for the state." In modern times, however, a periodical redistribution, as in antiquity, is economically inadmissible. Yet if anyone's holdings were to exceed the bounds of reason, "the legislature would undoubtedly interfere on behalf of society and prevent the wrong which would be done by caricaturing an abstract right." In view of our bills of rights, an American Hegelian could not invoke the _deus ex machina_ of an Act of Parliament so conveniently. Perhaps he would fall back on graduated taxation and inheritance taxes. But does not Miller when hard pressed resort to something very like social-utilitarianism? Lorimer connects the metaphysical theory with theories resting on human nature. To begin with, he deduces the whole system of property from a fundamental proposition that "the right to be and to continue to be implies a right to the conditions of existence." Accordingly he says that the idea of property is inseparably connected "not only with the life of man but with organic existence in general"; that "life confers rights to its exercise corresponding in extent to the powers of which it consists." When, however, this is applied in explaining the basis of the present proprietary system in all its details resort must be had to a type of artificial reasoning similar to that employed by the jurists of the seventeenth and eighteenth centuries. The abstract idea of ownership is not the only thing the legal philosopher has to consider. Moreover the reasoning by which that application is made may not be reconciled with the arguments by which the doctrine of _res extra commercium_ is regarded also as a bit of natural law. Although it purports to be wholly different, the positive theory of the basis of property is essentially the same as the metaphysical. Thus Spencer's theory is a deduction from a fundamental "law of equal freedom" verified by observation of the facts of primitive society. But the "law of equal freedom" supposed to be ascertained by observation, in the same way in which physical or chemical laws are ascertained, is in fact, as has often been pointed out, Kant's formula of justice. And the verification of deductions from this law by observation of the facts of primitive civilization is not essentially different from the verification of the deductions from the metaphysical fundamental law carried on by the historical jurists. The metaphysical jurist reached a principle metaphysically and deduced property therefrom. The historical jurist thereupon verified the deduction by showing the same principle as the idea realizing itself in legal history. In the hands of the positivists the same principle is reached by observation, the same deduction is made therefrom, and the deduction is verified by finding the institution latent in primitive society and unfolding with the development of civilization. The most notable difference is that the metaphysical and historical jurists rely chiefly on primitive occupation of ownerless things, while the positivists have been inclined to lay stress upon creation of new things by labor. In any event, laying aside the verification for the moment, the deduction as made by Spencer involves the same difficulties as those involved in the metaphysical deduction. Moreover, like the metaphysical deduction, it accounts for an abstract idea of private property rather than for the regime that actually exists. Inequalities are assumed to be due to "greater strength, greater ingenuity or greater application" of those who have acquired more than their fellows. Hence, as the end of law is taken to be the bringing about of a maximum of individual free self-assertion, any interference with one's holding the fruits of his greater strength or greater ingenuity or greater application, and his resulting greater activity in creative or acquisitive self-assertion, would contravene the very purpose of the legal order. It will be noted also that this theory, like all that had gone before, assumes a complete _ius disponendi_ as implied in the very notion of property. But does not this also require demonstration? Is the _ius disponendi_ implied in the idea which they demonstrate or is it only an incident of the institution they are seeking to explain by the demonstration? Historical jurists have maintained their theory on the basis of two propositions: (1) The conception of private property, like the conception of individual personality, has had slow but steady development from the beginnings of law; (2) individual ownership has grown out of group rights just as individual interests of personality have been disentangled gradually from group interests. Let us look at each of these propositions in some detail. If we examine the law of property analytically, we may see three grades or stages in the power or capacity which men have of influencing the acts of others with respect to corporeal objects. One is a mere condition of fact, a mere physical holding of or physical control over the thing without any other element whatever. The Roman jurists called this natural possession. We call it custody. Writers on analytical jurisprudence regard it as an element of possession. But this natural possession is something that may exist independently of law or of the state, as in the so-called _pedis possessio_ of American mining law, where, before law or state authority had been extended to the public domain in the mining country, the miners recognized the claim of one who was actually digging to dig without molestation at that spot. The mere having of an object in one's actual grasp gives an advantage. But it may be only an advantage depending on one's strength or on recognition of and respect for his personality by his fellow men. It is not a legal advantage except as the law protects personality. It is the physical person of the one in natural possession which is secured, not his relation to the thing held. Analytically the next grade or stage is what the Romanist calls juristic possession as distinguished from natural possession. This is a legal development of the extra-legal idea of custody. Where custody or the ability to reproduce a condition of custody is coupled with the mental element of intention to hold for one's own purposes, the legal order confers on one who so holds a capacity protected and maintained by law so to hold, and a claim to have the thing restored to his immediate physical control should he be deprived of it. As the Romanist puts it, in the case of natural possession the law secures the relation of the physical person to the object; in juristic possession the law secures the relation of the will to the object. In the highest grade of proprietary relation, ownership, the law goes much further and secures to men the exclusive or ultimate enjoyment or control of objects far beyond their capacity either to hold in custody or to possess--that is, beyond what they could hold by physical force and beyond what they could actually hold even by the help of the state. Natural possession is a conception of pure fact in no degree dependent upon law. The legally significant thing is the interest of the natural possessor in his personality. Possession or juristic possession is a conception of fact and law, existing as a pure relation of fact, independent of legal origin, but protected and maintained by law without regard to interference with personality. Ownership is a purely legal conception having its origin in and depending on the law. In general the historical development of the law of property follows the line thus indicated by analysis. In the most primitive social control only natural possession is recognized and interference with natural possession is not distinguished from interference with the person or injury to the honor of the one whose physical contact with the physical object is meddled with. In the earlier legal social control the all-important thing is seisin, or possession. This is a juristic possession, a conception both of fact and of law. Such institutions as tortious conveyance by the person seised in the common law are numerous in an early stage of legal development. They show that primarily the law protected the relation to an object of one who had possession of it. Indeed the idea of _dominium_, or ownership as we now understand it, was first worked out thoroughly in Roman law, and other systems got their idea of it, as distinguished from seisin, from the Roman books. Recognition of individual interests of substance, or in other words individual property, has developed out of recognition of group interests, just as recognition of individual interests of personality has evolved gradually from what in the first instance was a recognition of group interests. The statement which used to be found in the books that all property originally was owned in common means nothing more than this: When interests of substance are first secured they are interests of groups of kindred because in tribally organized society groups of kindred are the legal units. Social control secures these groups in the occupation of things which they have reduced to their possession. In this sense the first property is group property rather than individual property. Yet it must be noted that wherever we find a securing of group interests, the group in occupation is secured against interference of other groups with that occupation. Two ideas gradually operated to break up these group interests and bring about recognition of individual interests. One of these is the partition of households. The other is the idea of what in the Hindu law is called self-acquired property. In primitive or archaic society as households grow unwieldy there is a partition which involves partition of property as well as of the household. Indeed in Hindu law partition is thought of as partition of the household primarily and as partition of property only incidentally. Also in Roman law the old action for partition is called the action for partitioning the household. Thus, at first, partition is a splitting up of an overgrown household into smaller households. Presently, however, it tends to become a division of a household among individuals. Thus in Roman law on the death of the head of a household each of his sons in his power at his death became a _pater familias_ and could bring a proceeding to partition the inheritance although he might be the sole member of the household of which he was the head. In this way individual ownership became the normal condition instead of household ownership. In Hindu law household ownership is still regarded as the normal condition. But with changes in society and the rise of commercial and industrial activity, a change has been taking place rapidly which is making individual ownership the normal type in fact, if not in legal theory. Self-acquired property, the second disintegrating agency, may be seen in Hindu law and also in Roman law. In Hindu law all property is normally and _prima facie_ household property. The burden is upon anyone who claims to be the individual owner of anything. But an exceptional class of property is recognized which is called self-acquired property. Such property might be acquired by "valor," that is, by leaving the household and going into military service and thus earning or acquiring by way of booty, or by "learning," that is, by withdrawing from the household and devoting oneself to study and thus acquiring through the gifts of the pious or the exercise of knowledge. A third form was recognized later, namely, property acquired through the use of self-acquired property. In the same way in Roman law the son in the household, even if of full age, normally had no property. Legally all property acquired by any member of the household was the property of the head of the household as the legal symbol and representative thereof. Later the head of the household ceases to be thought of as symbolizing the household and the property was regarded legally as his individual property. But Roman law recognized certain kinds of property which sons in the household might hold as their own. The first of these was property earned or acquired by the son in military service. Later property earned in the service of the state was added. Finally it came to be law that property acquired otherwise than through use of the patrimony of the household might be held by the son individually though he remained legally under the power of the head. In the two ways just explained, through partition and through the idea of self-acquired property, individual interests in property came to be recognized throughout the law. Except for the institution of community property between husband and wife in civil-law countries, or as it is called the matrimonial property regime, there is practically nothing left of the old system of recognized group interests. And even this remnant of household group ownership is dissolving. All legally recognized interests of substance in developed legal systems are normally individual interests. To the historical jurist of the nineteenth century, this fact, coupled with the development of ownership out of possession, served to show us the idea which was realizing in human experience of the administration of justice and to confirm the position reached by the metaphysical jurists. Individual private property was a corollary of liberty and hence law was not thinkable without it. Even if we do not adopt the metaphysical part of this argument and if we give over the idealistic-political interpretation of legal history which it involves, there is much which is attractive in the theory of the historical jurists of the last century. Yet as we look at certain movements in the law there are things to give us pause. For one thing, the rise and growth of ideas of "negotiability," the development of the maxim _possession vaut titre_ in Continental law, and the cutting down in other ways of the sphere of recognition of the interest of the owner in view of the exigencies of the social interest in the security of transactions, suggests that the tendency involved in the first of the two propositions relied on by the historical school has passed its meridian. The Roman doctrine that no one may transfer a greater title than he has is continually giving way before the demand for securing of business transactions had in good faith. And in Roman law in its maturity the rules that restricted acquisition by adverse possession and enabled the owner in many cases to reclaim after any lapse of time were superseded by a decisive limitation of actions which cut off all claims. The modern law in countries which take their law from Rome has developed this decisive limitation. Likewise in our law the hostility to the statute of limitations, so marked in eighteenth-century decisions, has given way to a policy of upholding it. Moreover the rapid rise in recent times of limitations upon the _ius disponendi_, the imposition of restrictions in order to secure the social interest in the conservation of natural resources, and English projects for cutting off the _ius abutendi_ of the landowner, could be interpreted by the nineteenth-century historical jurists only as marking a retrograde development. When we add that with the increase in number and influence of groups in the highly organized society of today a tendency is manifest to recognize practically and in back-handed ways group property in what are not legal entities, it becomes evident that the segment of experience at which the historical jurists were looking was far too short to justify a dogmatic conclusion, even admitting the validity of their method. It remains to consider some twentieth-century theories. These have not been worked out with the same elaboration and systematic detail as those of the past, and as yet one may do no more than sketch them. An instinctive claim to control natural objects is an individual interest of which the law must take account. This instinct has been the basis of psychological theories of private property. But thus far these theories have been no more than indicated. They might well be combined with the historical theory, putting a psychological basis in place of the nineteenth-century metaphysical foundation. A social-psychological legal history might achieve much in this connection. Of sociological theories, some are positivist, some psychological and some social-utilitarian. An excellent example of the first is Duguit's deduction from social interdependence through similarity of interest and through division of labor. He has but sketched this theory, but his discussion contains many valuable suggestions. He shows clearly enough that the law of property is becoming socialized. But, as he points out, this does not mean that property is becoming collective. It means that we are ceasing to think of it in terms of private right and are thinking of it in terms of social function. If one doubts this he should reflect on recent rent legislation, which in effect treats the renting of houses as a business affected with a public interest in which reasonable rates must be charged as by a public utility. Also it means that cases of legal application of wealth to collective uses are becoming continually more numerous. He then argues that the law of property answers to the economic need of applying certain wealth to definite individual or collective uses and the consequent need that society guarantee and protect that application. Hence, he says, society sanctions acts which conform to those uses of wealth which meet that economic need, and restrains acts of contrary tendency. Thus property is a social institution based upon an economic need in a society organized through division of labor. It will be seen that the results and the attitude toward the law of property involved are much the same as those which are reached from the social-utilitarian standpoint. Psychological sociological theories have been advanced chiefly in Italy. They seek the foundation of property in an instinct of acquisitiveness, considering it a social development or social institution on that basis. Social-utilitarian theories explain and justify property as an institution which secures a maximum of interests or satisfies a maximum of wants, conceiving it to be a sound and wise bit of social engineering when viewed with reference to its results. This is the method of Professor Ely's well-known book on Property and Contract. No one has yet done so, but I suspect one might combine this mode of thought with the civilization interpretation of the Neo-Hegelians and argue that the system of individual property, on the whole, conduces to the maintaining and furthering of civilization--to the development of human powers to the most of which they are capable--instead of viewing it as a realization of the idea of civilization as it unfolds in human experience. Perhaps the theories of the immediate future will run along some such lines. For we have had no experience of conducting civilized society on any other basis, and the waste and friction involved in going to any other basis must give us pause. Moreover, whatever we do, we must take account of the instinct of acquisitiveness and of individual claims grounded thereon. We may believe that the law of property is a wise bit of social engineering in the world as we know it, and that we satisfy more human wants, secure more interests, with a sacrifice of less thereby than by anything we are likely to devise--we may believe this without holding that private property is eternally and absolutely necessary and that human society may not expect in some civilization, which we cannot forecast, to achieve something different and something better. VI Contract Wealth, in a commercial age, is made up largely of promises. An important part of everyone's substance consists of advantages which others have promised to provide for or to render to him; of demands to have the advantages promised which he may assert not against the world at large but against particular individuals. Thus the individual claims to have performance of advantageous promises secured to him. He claims the satisfaction of expectations created by promises and agreements. If this claim is not secured friction and waste obviously result, and unless some countervailing interest must come into account which would be sacrificed in the process, it would seem that the individual interest in promised advantages should be secured to the full extent of what has been assured to him by the deliberate promise of another. Let us put this in another way. In a former lecture I suggested, as a jural postulate of civilized society, that in such a society men must be able to assume that those with whom they deal in the general intercourse of the society will act in good faith, and as a corollary must be able to assume that those with whom they so deal will carry out their undertakings according to the expectations which the moral sentiment of the community attaches thereto. Hence, in a commercial and industrial society, a claim or want or demand of society that promises be kept and that undertakings be carried out in good faith, a social interest in the stability of promises as a social and economic institution, becomes of the first importance. This social interest in the security of transactions, as one might call it, requires that we secure the individual interest of the promisee, that is, his claim or demand to be assured in the expectation created, which has become part of his substance. In civil-law countries the interest of the promisee, and thus the social interest in the security of transactions, is well secured. The traditional requirement of a _causa ciuilis_, a civil, i.e., legal, reason for enforcing a pact, gave way before natural-law ideas in the eighteenth century. Pothier gave over the contract categories of the Roman law as being "very remote from simplicity." Then came the rise of the will theory of legal transactions in the nineteenth century. French law made intention of gratuitously benefiting another a _causa_. The Austrian code of 1811 presumed a _causa_, requiring a promisor to prove there was none. And this means that he must prove the promise was not a legal transaction--that there was no intention to enter into a binding undertaking. In the result, abstract promises, as the civilian calls them, came to be enforced equally with those which came under some formal Roman category and with those having a substantial presupposition. Modern Continental law, apart from certain requirements of proof, resting on the same policy as our Statute of Frauds, asks only, Did the promisor intend to create a binding duty? Likewise in civil-law countries the enforcing machinery is modern and adequate. The oldest method of enforcement in Roman law was seizure of the person, to coerce satisfaction or hold the promisor in bondage until his kinsmen performed the judgment. Later there was a pecuniary condemnation or, as we should say, a money judgment in all cases, enforced in the classical law by universal execution or, as we should say, by involuntary bankruptcy. But along with this remedy specific relief grew up in the _actio arbitraria_, a clumsy device of specific performance on the alternative of a heavy money condemnation, which repeated itself in Pennsylvania before equity powers were given the courts, and is substantially repeating in our federal courts in their attempts to apply equitable relief to torts committed in foreign jurisdictions. The civil law developed, or perhaps the canon law developed and the civil law took over, an _actio ad implendum_ or action to require performance, with natural execution, that is a doing by the court or its officers at the expense of the defendant, of that to which he is bound as ascertained by the judgment. In general in civil-law countries today what we call specific performance is the rule. A money reparation for breach of contract is the exceptional remedy. It is only when for some reason specific relief is impracticable or inequitable, as in contracts of personal service, that money relief is resorted to. In countries governed by the common law we do not secure this interest so completely nor so effectively. For one thing we do not recognize as legally enforceable all intentional promises intended to be binding upon the promisor. Many technical rules as to consideration, rules having chiefly a historical basis, stand in the way. Many jurisdictions have abolished private seals and have made no provision for formal gratuitous or abstract promises. Moreover, we do not give specific relief ordinarily but only exceptionally where pecuniary relief is considered inadequate. Hence in the great majority of cases the promisee cannot compel performance in specie. If we look into the reasons for this wide and effective enforcement of promises in the one system and narrower and less effective enforcement in the other, we come in both cases upon a mixture of historical background and philosophical reasoning, each influencing the other and neither governing the subject completely. Philosophical theories have arisen to explain existing rules and have been the basis of new rules and of remaking of old ones. But they have been the means also, at times, of intrenching the rules they sought to explain and of fastening on the law doctrines of which it were better rid. Nowhere is the reciprocal action of legal rules and philosophical theories more strikingly manifest than in our law of contractual liability. Law did not concern itself at first with agreements or breaches of agreements. Its function was to keep the peace by regulating or preventing private war and this only required it to deal with personal violence and with disputes over the possession of property. I may remind you of the proposition of Hippodamus in the fifth century B. C. that there were but three subjects of lawsuits, namely, insult, injury and homicide. If a dispute over breach of an agreement led to an assault and a breach of the peace, tribunals might be called on to act. But it was the assault not the breach of agreement with which they were concerned. Controversy as to possession of property was a fertile source of disturbance of the peace and tribunals would entertain an action to recover possession. Agreements to compound for a wrong are perhaps the earliest type. But the law had its eye upon the need of composition, not upon the agreement. No basis for a law of contracts was to be found in the power of the tribunals with respect to injuries although our law did make assumpsit out of trespass on the case. On the other hand recovery of property could be used for this purpose. Hence the first legal, as distinguished from religious, contract was worked out on the analogy of a real transaction. Before this, however, another possibility had developed in the religiously sanctioned promise. Religion, the internal discipline of the organized kindred, and the law of the state were three co-ordinate agencies of social control in ancient society. Nor was law for a long time the chief of these nor the one which covered the widest field. If the gods had been called to witness or good faith had a religious sanction, the duty to keep a promise was a matter for religion. Otherwise the mere pact or agreement not within the cognizance of the priests was but a matter for self-help. Hindu law shows the idea of religious duty to keep faith in full vigor. In the Hindu system the relation between the parties to a debt is not legal but religious and now that a law has grown up under English influence it is said that there is a legal obligation because there is a religious obligation. A man is bound in law because and to the extent that he is bound in religion and not otherwise and no more. To the Hindu lawyer a debt is not an obligation merely. It is a sin the consequences whereof follow the debtor into another world. Vrihaspati says: "He who, having received a sum lent or the like does not return it to the owner, will be born hereafter in his creditor's house a slave, a servant, a woman or a quadruped." Narada says that when one dies without having paid his debt, "the whole merit of his devotions or of his perpetual fire belongs to his creditors." In short the debtor is looked on as one who wrongfully withholds from the creditor the latter's property and hence as in some sort a thief. The legal idea, so far as there is one, is not one of obligation but of a property right in the creditor. One may suspect that religious obligation arising from the detention of property is a legal way of putting it in a polity in which social control is primarily religious and religious precepts are turning into legal precepts. At any rate the Hindus carry the idea of religious obligation so far that a descendant is bound to pay the debts of his ancestor in many cases whether he receives any assets of the ancestor or not. The liability of the son to pay the father's debt is held to arise from the moral and religious duty of rescuing the father from the penalties attaching in a future state to non-payment of debts. Accordingly if the debt is of such a kind that no penalties would so attach, there is no religious duty and hence no obligation imposed upon the descendant. Roman law in its earliest stage was not unlike this. Agreements of themselves were not cognizable by the tribunals. It was no ground for summoning a defendant before the magistrate that he had made a promise and had broken it. Agreements were matters for religion or for kin or guild discipline. If one had called on the gods to witness his promise or sworn to fulfil it, he was liable to pontifical discipline. The presence of an impious oath breaker was a social danger and he might be devoted to the infernal gods. As law replaced religion as the controlling regulative agency, the old religiously sanctioned promise becomes a formal legal contract. Thus in the strict law we get formal contracts with their historical origin in religious duty, and formal contracts with their historical origin in a legal duty created by a real transaction of suretyship or conveyance, perhaps by calling the people to witness so that there is an affront to the state if they are called upon in vain. When contact with Greek philosophers set the Roman jurists to thinking about the basis of obligation, there were two sorts of promises: (1) Formal promises, (a) by stipulation, using the sacramental word _spondeo_ and thus assuming the pouring out of a libation that the gods might take notice of the promise, (b) by public ceremony apparently symbolizing a real transaction before the whole people, (c) entered upon the household books of account, and (2) mere informal promises not recognized by law. The latter depended wholly on the good faith of the maker since the law had put down self-help which formerly had been available to the promisee. Accordingly Roman jurists distinguished civil obligations and natural obligations--those recognized and secured legally and those which primarily had only a moral efficacy. A _nudum pactum_ or mere agreement or mere promise, not clothed with legal efficacy because it did not come within any of the categories of legal transactions sanctioned by the _ius ciuile_, created only a natural obligation. It was right and just to adhere to such a pact, but only contracts, undertakings recognized by law because of their form or nature, were enforceable. With increasing pressure of the social interest in the security of transactions through economic development and commercial expansion, the natural-law philosophy slowly affected this simple scheme of formal undertakings legally recognized and enforceable and informal undertakings of only moral efficacy, and brought about the complicated system of enforceable undertakings in the maturity of Roman law with which you are familiar. Four features of this movement are noteworthy. In the first place it led to a juristic theory of formal contract which has affected our ideas ever since. In the strict law the source of obligation was in the form itself. For in primitive thinking forms have an intrinsic efficacy. It has often been pointed out that the faith in legal forms belongs to the same order of thought as faith in forms of incantation and that legal forms are frequently symbols to be classed psychologically with the symbols of magic. The stage of equity and natural law, relying on reason rather than on form, governed by philosophy instead of by naïve faith, looked for the substance and found it in a pact preceding and presupposed by the formal ceremony. Thus a formal contract was a pact with the addition of legal form. The pact was the substance of the transaction. The form was a _causa ciuilis_ or legal reason for enforcing the pact. But if the form was only a legal reason for enforcing something that got its natural efficacy in another way, it followed that there might well be other legal reasons for enforcement besides form. Consequently new categories of contract were added to the old formal contracts and it is significant that while the latter were transactions _stricti iuris_ the former were considered transactions _bonae fidei_ involving liability to what good faith demanded in view of what had been done. In the scope of their obligation these contracts responded exactly to the postulate of civilized society that those with whom we deal will act in good faith and will carry out their undertakings according to the expectations of the community. On the other hand the old formal contracts responded thereto in part only since their obligation was one to do exactly what the terms of the form called for, no more and no less. When one makes _nexum_, said the Twelve Tables, as he says orally so be the law. New categories were added in successive strata, as it were, and juristic science sought afterward to reduce them to system and logical consistency. Thus real contracts, consensual contracts and innominate contracts were added. But it is evident that many of these are juristic rationalizings of what had been done for a long time through formal transactions. Thus the consensual contract of sale with its implied warranties rationalizes transfer by _traditio_ with stipulations for the price and for warranties. The real contract of _depositum_ rationalizes _fiducia cum amico_. The real contract of _mutuum_ rationalizes _pecunia credita_. But the latter was so thoroughly established as a formal transaction that the case of a loan of money, analytically a real contract, preserved the incidents of the strict law. Moreover certain pacts, _pacta adiecta_, _pacta praetoria_, became actionable which do not fit into the analytical scheme of the Institutes. For example, a _causa_ or reason for enforcing these pacts was found in their being incidental to something else or in a pre-existing natural obligation which they undertook to satisfy. There still remained natural obligations which had not been given legal efficacy as the basis of actions. The mere will of the person who undertook or the claim of the promisee was not a reason for enforcing. Yet in reason they were morally binding and the legal and moral should coincide. Hence they might be used defensively or as the basis of a set-off. Meanwhile the forms of stipulation and of literal contract had been reduced to their lowest terms by conceiving them in terms of substance, and taking orally expressed agreement to be the substance of the one and writing to be the substance of the other. The results have defied analysis although the best that juristic ingenuity could do has been expended upon them for centuries. In the Middle Ages primitive ideas came back for a time through Germanic law. General security in its lowest terms of peace and order was the pressing social interest. There was little commercial activity. The civilization of the time did not involve the corollaries of our jural postulate. Religiously sanctioned undertakings by promissory oath and real transactions of pledge of person or property and of exchange gave rise to a simple system of formal undertakings. Out of these came a theory of _causa debendi_, or reason for owing the promised performance, which has had a profound influence upon subsequent thinking. The Roman _causa ciuilis_ was a legal reason for enforcing a pact. Under the influence of the Germanic idea _causa_ becomes a reason for making the pact, the good reason for making it furnishing a sufficient reason for enforcing it. For a time it seemed that the church might succeed in establishing a jurisdiction over promises. Oaths and vows involved religious duties and might well be claimed as the province of the spiritual. But the moral obligation of pacts, binding the conscience of a Christian, might also be cognizable by a zealous corrector of the conduct of the faithful for their soul's welfare. Had not the power of the canon law broken down and the law of the state developed rapidly in respect of the security of transactions after the sixteenth century, the law of contracts might have grown along religious instead of along philosophical lines, and perhaps not to its advantage. As it is, one need but read Doctor and Student with the title _de pactis_ of the _Corpus Iuris Canonici_ and casuist writings as to the moral efficacy of promises before him, to see that religion paved the way for much that was done presently in the name of philosophy. To the jurists of the seventeenth and eighteenth centuries no distinction between natural obligations and civil obligations was maintainable since all natural rights or obligations must for the very reason that they were natural be legal also. If it was morally obligatory that one adhere to a pact, then it must be treated as a contract. However much systematized analytically, the Roman categories of contract did not deal with undertakings from this standpoint. What the jurists desired was not analytical categories but a principle upon which men were to be held or not to be held upon their promises. Thus the philosophy of contract, the principles underlying the binding force of promises and agreements, became the chief problem of philosophical jurisprudence of the seventeenth century, as interests of personality were the chief subject of discussion in the eighteenth century, and interests of substance, the philosophy of the law of property, the chief subject of discussion in the nineteenth century. The decisive element in seventeenth-century thought as to contract was the idea of natural law; the idea of deduction from the nature of man as a moral creature and of legal rules and legal institutions which expressed this ideal of human nature. But the idea was put to work upon existing materials and the result was a reciprocal influence of the conception of enforcing promises as such because morally binding, on the one hand, shaped to some extent by canon law and casuist discussions of what promises were binding in conscience and when, and the ideas of _nudum pactum_ and _causa debendi_ on the other hand. Roman law was assumed to be embodied reason. As D'Aguesseau put it, Rome was ruling by her reason, having ceased to rule by her authority. Hence all consideration of the subject starts with the assumption that there are morally naked agreements which for that reason are to be naked legally. Where there was an exchange of promises there was the authority of Justinian for enforcement (_synallagma_) and it was easy to find a reason in the analogy of exchange of property. Where something was exchanged for a promise, that something was a _causa debendi_. But suppose there was no exchange of promises nor was anything exchanged for the promise. There was nothing but a promise assented to. In Roman law this would have to take the form of a stipulation. In the Germanic law it would have required an oath or the form of a real transaction of pledge or exchange. At common law it required delivery of a sealed instrument. Clearly there was no moral efficacy inherent in these forms. Why should these "abstract" promises be enforced and not others? Should every such promise be enforced or should none be enforced without something in the way of exchange, or should such promises be classified for the purpose of enforcement, and if so, how? Two theories arose in the seventeenth century. One may be called the theory of an equivalent. This theory is obviously a rationalization of the Germanic _causa debendi_ influenced by canon law and casuist writings. According to this theory an abstract promise, no equivalent having been given for it, is not naturally and hence is not legally binding. Three reasons have been given for this which have figured in juristic discussion of the subject ever since. It was said that one who trusts another who makes a promise for no equivalent does so rashly. He cannot ask to be secured in such an unfounded expectation. This is too much in the spirit of the strict law. It denies any interest except where the law secures it. It says that if the law does not secure the interest, one is a fool to rely on the promise and so has no interest. In like manner the strict law said that if one gave his formal undertaking through fraud or mistake or coercion, he was a fool or a coward and was not to be helped. But we cannot prove the interest by the law. We must measure the law with reference to the interest. Again it was said that if one promises without equivalent he does so more from "ostentation" than from real intention and so an equivalent shows that he acted from calculation and deliberately. It is only deliberate promises that are morally binding, for only such promises are relied upon by the prudent, upright man in his intercourse with his neighbors. If this reason is sound, equivalent is only a mode of proving deliberation and the real point should be that the promise was made deliberately as something by which the maker expected to be bound, not that the deliberation was evidenced in a particular way by an equivalent. A third reason was that one who parted with an equivalent in exchange for or in reliance on a promise is injured in his substance if the promise is not kept. But if this is the reason, the law should simply require restitution in case of non-performance. If the interest involved is the deduction from substance through rendering the equivalent, the obligation should be _quasi ex contractu_ rather than _ex contractu_. Our Anglo-American law of contracts was much influenced by this theory of equivalents. In the seventeenth century four types of promise were legally enforceable at common law: (1) A formal acknowledgment of indebtedness by bond under seal, often conditioned upon performance of a promise for which it was a security, (2) a covenant or undertaking under seal, (3) the real contract of debt, and (4) a simple promise upon consideration, that is, in exchange for an act or for another promise. The first conclusively acknowledged an equivalent, in the second it could be said that the seal presupposed or implied one, in the third the obligation arose from the detention of something by him to whom it had been delivered, and in the fourth the act or counter-promise was the motive or consideration for the promise and as a cause of or reason for making it was the equivalent for which the promisor chose to assume the undertaking. With some aid from a dogmatic fiction in the case of covenants, the common law could be adjusted to this theory reasonably well. Accordingly as far back as Bacon we find consideration treated from this standpoint in the English books. But it was never a satisfactory explanation. If the theory was sound it ought not to matter whether the equivalent was rendered before the promise or after it or simultaneously with it. Indeed, English equity in the nineteenth century took subsequent action in reliance upon a promise of a gift to be a common-law consideration on the basis whereof the promise was specifically enforceable. Equity never wholly adopted this or any other theory. At least after the middle of the eighteenth century equity was supposed to follow the law as to what was a contract. But the common law was not settled till the nineteenth century and we find the chancellors using consideration frequently to mean not equivalent but any reason for making the promise and thus making it synonymous with the civilian's _causa_. The so-called meritorious consideration, consideration of blood and of love and affection, and the cases of promises sustained by moral obligation of a debtor to secure his creditor, of a husband to settle property on his wife and of a parent to provide for a child, show the idea of _causa_ at work in equity. It is significant that Doctor and Student was often cited in these connections. The most thoroughgoing attempt to apply the equivalent theory to be found in the books is Langdell's working out of a system of the so-called conditions implied in law or dependent promises on that basis. As an example of vigorous legal analysis it rivals Austin. But it did not succeed in shaping the law. On the Continent the second theory, the theory of the inherent moral force of a promise made as such, came to prevail. This was the theory of Grotius. It was generally adopted by Continental writers of the eighteenth century and, as has been seen, it broke down the Roman categories and led to the rule that a promise as such, intending a legal transaction, created legal obligation. At the end of the eighteenth century Lord Mansfield came very near establishing it in our law by his doctrine that no promise made as a business transaction could be _nudum pactum_. But he was too late. Growth stopped for a season and the nineteenth century set itself to systematize and harmonize what it had received rather than to carry the development further. When the natural-law foundation of enforcing promises crumbled, the metaphysical jurists sought to provide a new one. Kant said that it was impossible to prove that one ought to keep his promise, considered merely as a promise, and deduced contract from property as a form of conveyance or alienation of one's substance involved in the very idea of individual rights. So far as consistent with abstract freedom of will according to a universal law one might alienate his services as well as his property, and an undertaking to perform something was an alienation of that sort. This view was generally taken so that while the seventeenth century sought to rest rights upon contract and the eighteenth century rested contract on the inherent moral significance of a promise, the nineteenth century, making the philosophy of property the important thing, rested contract on property. Three of these theories are worth a moment's notice. Fichte says that the duty of performing an agreement arises when one party thereto begins to act under it. Juristically this seems to be a rationalization of the Roman innominate contract. There, in case a pact was performed on one side, he who performed might claim restitution _quasi ex contractu_ or claim the counter-performance _ex contractu_. Philosophically the idea seems to be that of the equivalent theory, in the form with which we are familiar in Anglo-American discussion of this subject as the injurious-reliance theory. According to the latter, unless the promisee has parted with an equivalent or has begun to act in reliance upon the agreement, he has no moral claim to fulfilment. This is not a theory of the law as it is or as it ever has been. Formal contracts require nothing of the sort. It is true, English equity, under the influence of the equivalent theory, did lay down in the nineteenth century that a contract under seal with no common-law consideration behind it would not be enforced. But that proposition was subject to many exceptions when it was announced, more have since developed and more are developing. As things are, the exceptions are of more frequent application than the rule itself. Nor is Fichte's theory a statement of moral ideas of his day or of ours. Then and now the moral duty to keep abstract promises was and is recognized. That a man's word should be "as good as his bond" expresses the moral sentiment of civilized society. But the philosopher saw that the law did not go so far and was trying to frame a rational explanation of why it fell short. It should be noticed that Fichte is really trying to show why a promise may be regarded as a part of one's substance and why one's claim to performance may be treated as his property. Hegel also explains contract in terms of property, treating a promise as a disposition of one's substance. Hence in his view the so-called abstract promise is a mere subjective qualification of one's will which he is at liberty to change. This theory and the foregoing assume the Roman law or the older law of Continental Europe, and speak from the reaction from natural law which in England at the same time was overruling the liberal doctrines of Lord Mansfield. Later metaphysical jurists rely upon the idea of personality. The Romanist thinks of a legal transaction as a willing of some change in a person's sphere of rights to which the law, carrying out his will, gives the intended effect. If the transaction is executed, revocation would involve aggression upon the substance of another. If it is executory, however, why should the declared intent that the change take place in the future be executed by law despite the altered will of the promisor? Some say that this should be done where there is a joint will from which only joint action may recede. Where the parties have come to an agreement, where their wills have been at one, the law is to give effect to this joint will as a sort of vindication of personality. It is evident, however, that this explanation assumes the will theory, the subjective theory of legal transactions. If we start from the objective theory it breaks down. Take for instance the case of an offer, which a reasonable man would understand in a given way, accepted by the offeree in that understanding when the offerer really meant something else. Or take the case of an offer wrongly transmitted by telegraph and accepted in good faith as it is transmitted. Here there is no community of will and yet the law may well hold, as we do in America, in both cases, that there is a contract. No metaphysical theory has prevailed to prevent the steady march of the law and of juristic thought in the direction of an objective doctrine of legal transactions. Nowhere, indeed, has the deductive method broken down so completely as in the attempt to deduce principles upon which contracts are to be enforced. Later in the nineteenth century men came to think more about freedom of contract than about enforcement of promises when made. To Spencer and the mechanical positivists, conceiving of law negatively as a system of hands off while men do things, rather than as a system of ordering to prevent friction and waste so that they may do things, the important institution was a right of free exchange and free contract, deduced from the law of equal freedom as a sort of freedom of economic motion and locomotion. Justice required that each individual be at liberty to make free use of his natural powers in bargains and exchanges and promises except as he interfered with like action on the part of his fellow men, or with some other of their natural rights. Whether all such transactions should be enforced against him or only some, and if the latter, which, are questions belonging to an affirmative rather than to a negative science of law. Historical jurists accepted the will theory and have been its leading advocates in modern times. They saw that the whole course of legal history had been one of wider recognition and more effective enforcement of promises. Those who accepted the ethical idealistic interpretation of legal history could see freedom as an ethical idea realizing itself in a larger freedom of self-assertion and self-determination through promises and agreements and a wider giving effect to the will so asserted and determined. For the most part they wrote on the Continent where the field of legally enforceable promises had ceased to be bounded by a narrow fence of Roman historical categories. Thus they had no call to rationalize dogmas of not enforcing promises made as business transactions. Those who accepted the political interpretation saw freedom as a civil or political idea realizing itself in a progress from _status_ to contract in which men's duties and liabilities came more and more to flow from willed action instead of from the accident of social position recognized by law. The English historical jurists might well have asked how far English rules as to consideration were consonant with the implications of such a theory, and whether they must not be expected to give way as the idea unfolded more completely in experience of popular action and judicial decision. But the leader of this school was not a common-law lawyer and the American historical jurists devoted their energies to devising a historical-analytical theory of consideration rather than to the wider question of what promises should be enforced and why. Here as in other places the historical jurist and the utilitarian were in agreement as to results although they differed widely as to the mode of reaching them. The former saw in contract a realization of the idea of liberty. The latter saw in it a means of promoting that maximum of individual free self-assertion which he took to be human happiness. Hence the former called for freedom of contract and should have called for wide general enforcement of promises. The latter held to a doctrine of unshackling men and allowing them to act as freely as possible, which involved the complementary position of extending the sphere and enforcing the obligation of contract. The difference between these ways of thinking and those of the end of the eighteenth century is brought out if we compare Blackstone (1765) with a dictum of Sir George Jessel a century later (1875). The former says that the public is "in nothing so essentially interested as in securing to every individual his private rights." The latter, discussing a question of what agreements are against public policy and therefore unenforceable, says: "If there is one thing more than another which public policy requires it is that men of full age and competent understanding shall have the utmost liberty of contracting and that such contracts shall be enforced by courts of justice." But the utilitarians put the emphasis upon the first, the negative, rather than upon the second, the affirmative, part of this twofold program. This is true also of the historical jurists and of the positivists. The English trader and entrepreneur was not seeking for legal instruments. He could work passably with those which the law furnished if the law would but let him. What he sought was to be free from legal shackles which had come down from a society of a different nature organized on a different basis and with other ends. Hence juristic thought addressed itself to this for a season rather than to the doctrine of consideration and the reason for non-enforcement of deliberate promises where not put in the form of bargains. No one of the four theories of enforcing promises which are current today is adequate to cover the whole legal recognition and enforcement of them as the law actually exists. Putting them in the order of their currency, we may call them (1) the will theory, (2) the bargain theory, (3) the equivalent theory, (4) the injurious-reliance theory. That is, promises are enforced as a giving effect to the will of those who agree, or to the extent that they are bargains or parts of bargains, or where an equivalent for them has been rendered, or where they have been relied on by the promisee to his injury, according to the theory chosen. The first is the prevailing theory among civilians. But it must give way before the onward march of the objective theory of legal transactions and is already fighting a rear-guard action. In our law it is impossible. We do not give effect to promises on the basis of the will of the promisor, although our courts of equity have shown some tendency to move in that direction. The attempt in the nineteenth century to Romanize our theories of liability involved a Romanized will-theory of contract. But no one who looks beneath the surface of our law reports can doubt that the attempt has failed wholly. We no longer seek solutions on every side through a pedantic Romanized law of bailments and in the law of bailments itself we are coming to talk in common-law terms of negligence in view of the circumstances and not in Romanist terms of the willed standard of diligence and corresponding degrees of negligence. In America, at least, the objective theory of contract is orthodox and the leader of English analytical jurists of the present generation has expounded it zealously. Courts of equity, which inherit modes of thought from the time when the chancellor searched the conscience of a defendant by an examination under oath, and believed he could reach subjective data that were beyond the cognizance of a jury, are the last stronghold of the exotic subjective theory in the common law. Probably the bargain theory is the one most current in common-law thinking. It is a development of the equivalent theory. It will not cover formal contracts but under its influence the formal contracts have been slowly giving way. The seal "imports" a consideration. Legislation has abolished it in many jurisdictions and often it does no more than establish a bargain _prima facie_, subject to proof that there was in fact no consideration. Courts of equity require a common-law consideration, at least on the face of their general rule, before they will enforce a sealed contract. Also the formal contracts of the law merchant are subject to defeat by showing there was no consideration, except when in the hands of holders for value without notice. Here, however, consideration is used in the sense of equivalent, to the extent of admitting a "past consideration," and the bargain theory, appropriate to simple contracts, is not of entire application. On the other hand the extent to which courts today are straining to get away from the bargain theory and enforce promises which are not bargains and cannot be stated as such is significant. Subscription contracts, gratuitous promises afterwards acted on, promises based on moral obligations, new promises where a debt has been barred by limitation or bankruptcy or the like, the torturing of gifts into contracts by equity so as to enforce _pacta donationis_ specifically in spite of the rule that equity will not aid a volunteer, the enforcement of gratuitous declarations of trust, specific enforcement of options under seal without consideration, specific performance by way of reformation in case of security to a creditor or settlement on a wife or provision for a child, voluntary relinquishment of a defense by a surety and other cases of "waiver," release by mere acknowledgment in some states, enforcement of gifts by way of reformation against the heir of a donor, "mandates" where there is no _res_, and stipulations of parties and their counsel as to the conduct of and proceedings in litigation--all these make up a formidable catalogue of exceptional or anomalous cases with which the advocate of the bargain theory must struggle. When one adds enforcement of promises at suit of third-party beneficiaries, which is making headway the world over, and enforcement of promises where the consideration moves from a third person, which has strong advocates in America and is likely to be used to meet the exigencies of doing business through letters of credit, one can but see that Lord Mansfield's proposition that no promise made as a business transaction can be _nudum pactum_ is nearer realization than we had supposed. Yet the equivalent theory and the injurious-reliance theory are even less adequate to explain the actual law. The equivalent theory must wrestle at the outset with the doctrine that inadequacy of consideration is immaterial so that the equivalency is often Pickwickian. Hegel could argue for it on the basis of the Roman _laesio enormis_. But when a court of equity is willing to uphold a sale of property worth $20,000 for $200, even a dogmatic fiction is strained. Moreover the catalogue of anomalies with which the bargain theory must wrestle contains more than one difficulty for the adherent of either theory. Stipulations in the course of litigation do not need equivalents nor do they need to be acted on in order to be enforceable. A release by mere acknowledgment, when good at all, needs no equivalent and need not be acted on. Waiver by a surety of the defense of release by giving time to the principal needs no element of consideration nor of estoppel. Defectively executed securities, settlements and advancements need no equivalent and need not be acted on in order to be reformed. Options under seal are held open in equity on the basis of the seal alone. A gratuitously declared trust creates an obligation cognizable in equity without more. In truth the situation in our law is becoming much the same as that in the maturity of Roman law and for the same reason. We have three main categories. First, there are formal contracts, including sealed instruments, recognizances, and the formal contracts of the law merchant, in which latter the form consists in the use of certain words, requirements as to sum certain, payment at all events, and certainty as to time. Second, there are the real contracts of debt and bailment. Third, there are simple contracts, without form and upon consideration. The latter is the growing category although the formal contracts of the law merchant have shown some power of growth and the business world has been trying to add thereto letters of credit using the formal words "confirmed" or "irrevocable." But the category of enforceable simple promises defies systematic treatment as obstinately as the actionable pacts in Roman law. Successive additions at different times in the endeavor of courts to hold men to their undertakings, in view of the social interest in the security of transactions and the jural postulates of the civilization of the day, proceed on all manner of different theories and different analogies and agree only in the result--that a man's word in the course of business should be as good as his bond and that his fellow men must be able to rely on the one equally with the other if our economic order is to function efficiently. It is evident that many courts consciously or subconsciously sympathize with Lord Dunedin's feeling that one can have no liking for a doctrine which enables a promisor to snap his fingers at a promise deliberately made, fair in itself, and in which the person seeking to enforce it has a legitimate interest according to the ordinary understanding of upright men in the community. It is significant that although we have been theorizing about consideration for four centuries, our texts have not agreed upon a formula of consideration, much less our courts upon any consistent scheme of what is consideration and what is not. It means one thing--we are not agreed exactly what--in the law of simple contracts, another in the law of negotiable instruments, another in conveyancing under the Statute of Uses and still another thing--no one knows exactly what--in many cases in equity. Letters of credit afford a striking illustration of the ill-adaptation of our American common law of contract to the needs of modern business in an urban society of highly complex economic organization. Well known abroad and worked out consistently on general theories in the commercial law of Continental Europe, these instruments came into use in this country on a large scale suddenly during the war. There was no settled theory with respect to them in our books and the decisions warranted four or five views leading to divergent results in matters of vital moment to the business man who acted on them. Characteristically the business world set out to make of them formal contracts of the law merchant by the use of certain distinctive words which gave the instruments character and made their nature clear to those who inspected them anywhere in the world. But for a season our category of mercantile specialties had ceased to admit of growth and the doctrine of consideration with its uncertain lines stood in the way of many things which the exigencies of business called for and business men found themselves doing in reliance on each other's business honor and the banker's jealousy of his business credit, with or without assistance from the law. Certainly no one would say that such a situation bears witness to wise social engineering in an economically organized society resting on credit. Two circumstances operate to keep the requirement of consideration alive in our law of simple contract. One is the professional feeling that the common law is the legal order of nature, that its doctrines in an idealized form are natural law and that its actual rules are declaratory of natural law. This mode of thinking is to be found in all professions and is a result of habitual application of the rules of an art until they are taken for granted. In law it is fortified by the theory of natural law which has governed in our elementary books since Blackstone, was taught to all lawyers until the present century, and is assumed in much of our judicial decision. Later it was strengthened by the theories of the historical school which ruled in our law schools in the last quarter of the nineteenth century and taught us to think that growth must inevitably follow lines which might be discovered in the Year Books. These things co-operated with the temper of the last century and the instinctive aversion of the lawyer to change, lest in some unperceived way a door be opened to magisterial caprice or to the personal equation of the judge. Thus some thought of consideration, whatever it was, as inherent in the very idea of enforceable promises. Others assumed that it was a historically developed principle by which the future evolution of the law of contracts must be governed. Many others simply thought that it was dangerous to talk of change. And yet change has gone on rapidly, if subconsciously, until the present confused mass of unsystematized and unsystematizable rules has resulted. The second circumstance operating to keep alive the requirement of consideration is a more legitimate factor. Nowhere could psychology render more service to jurisprudence than in giving us a psychological theory of _nuda pacta_. For there is something more than the fetish of a traditional Latin phrase with the hallmark of Roman legal science behind our reluctance to enforce all deliberate promises simply as such. It should be compared with the reluctance of courts to apply the ordinary principle of negligence to negligent speech, with the doctrine as to seller's talk, with the limitations upon liability for oral defamation and with many things of the sort throughout our law. All of these proceed partly from the attitude of the strict law in which our legal institutions first took shape. But they have persisted because of a feeling that "talk is cheap," that much of what men say is not to be taken at face value and that more will be sacrificed than gained if all oral speech is taken seriously and the principles applied by the law to other forms of conduct are applied rigorously thereto. This is what was meant when the writers on natural law said that promises often proceeded more from "ostentation" than from a real intention to assume a binding relation. But this feeling may be carried too far. Undoubtedly it has been carried too far in the analogous cases above mentioned. The rule of _Derry_ v. _Peek_ goes much beyond what is needed to secure reasonable limits for human garrulousness. The standard of negligence, taking into account the fact of oral speech and the character and circumstances of the speech in the particular case, would amply secure individual free utterance. So also the doctrine that one might not rely on another's oral representation in the course of a business transaction if he could ascertain the facts by diligence went much too far and has had to be restricted. Likewise we have had to extend liability for oral defamation. Accordingly because men are prone to overmuch talk it does not follow that promises made by business men in business dealings or by others as business transactions are in any wise likely to proceed from "ostentation" or that we should hesitate to make them as binding in law as they are in business morals. Without accepting the will theory, may we not take a suggestion from it and enforce those promises which a reasonable man in the position of the promisee would believe to have been made deliberately with intent to assume a binding relation? The general security is more easily and effectively guarded against fraud by requirements of proof after the manner of the Statute of Frauds than by requirements of consideration which is as easy to establish by doubtful evidence as the promise itself. This has been demonstrated abundantly by experience of suits in equity to enforce oral contracts taken out of the Statute of Frauds by great hardship and part performance. Revived philosophical jurisprudence has its first and perhaps its greatest opportunity in the Anglo-American law of contracts. The constantly increasing list of theoretical anomalies shows that analysis and restatement can avail us no longer. Indeed the lucid statement of Williston but emphasizes the inadequacy of analysis even when eked out by choice from among competing views and analytical restatements of judicial dogma in the light of results. Projects for "restatement of the law" are in the air. But a restatement of what has never been stated is an impossibility and as yet there is no authoritative statement of what the law of consideration is. Nothing could be gained by a statement of it with all its imperfections on its head and any consistent analytical statement would require the undoing of much that the judges have done quietly beneath the surface for making promises more widely enforceable. Given an attractive philosophical theory of enforcement of promises, our courts in a new period of growth will begin to shape the law thereby and judicial empiricism and legal reason will bring about a workable system along new lines. The possibilities involved may be measured if we compare our old law of torts with its hard and fast series of nominate wrongs, its distinctions growing out of procedural requirements of trespass and trespass on the case and its crude idea of liability, flowing solely from causation, with the law of torts at the end of the nineteenth century after it had been molded by the theory of liability as a corollary of fault. Even if we must discard the conception that tort liability may flow only from fault, the generalization did a service of the first magnitude not only to legal theory but to the actual administration of justice. No less service will be rendered by the twentieth-century philosophical theory, whatever it is, which puts the jural postulate of civilized society in our day and place with respect to good faith, and its corollary as to promises, in acceptable form, and furnishes jurist and judge and lawmaker with a logical critique, a workable measure of decision and an ideal of what the law seeks to do, whereby to carry forward the process of enlarging the domain of legally enforceable promises and thus enlarging on this side the domain of legal satisfaction of human claims. Bibliography LECTURE I Plato (B. C. 427-347), Republic. ----, Laws. Translations in Jowett's Plato. The translation of the Republic is published separately. Pseudo-Plato, Minos. Now generally considered not to be a genuine work of Plato's and variously dated from as early as c. 337 B. C. to as late as c. 250 B. C. There is a convenient translation in Bohn's Libraries. Aristotle (B. C. 384-322), Nicomachean Ethics. Convenient translation by Browne in Bohn's Libraries. ----, Politics. Translation by Jowett should be used. Reference may be made to Berolzheimer, System der Rechts- und Wirthschaftsphilosophie, II, §§ 13-16 (World's Legal Philosophies, 46-77); Hildenbrand, Geschichte und System der Rechts- und Staatsphilosophie, §§ 1-121. Cicero (B. C. 106-43), De Legibus. Reference may be made to Berolzheimer, System der Rechts- und Wirthschaftsphilosophie, II, §§ 17-20 (World's Legal Philosophies, 78-92); Hildenbrand, Geschichte und System der Rechts- und Staatsphilosophie, §§ 131-135, 143-147; Voigt, Das Ius Naturale, aequum et bonum und Ius Gentium der Römer, I, §§ 16, 35-41, 44-64, 89-96. Thomas Aquinas (1225 or 1227-1274), Summa Theologiae. Convenient translation of the parts relating to law in Aquinas Ethicus. Reference may be made to Berolzheimer, System der Rechts- und Wirthschaftsphilosophie, II, §§ 21-23 (World's Legal Philosophies, 93-111). Oldendorp, Iuris naturalis gentium et ciuilis [Greek: eisagôgê] (1539). Hemmingius (Henemingsen) De Iure naturale apodictica methodus (1562). Winckler, Principiorum iuris libri V (1615). These are collected conveniently in Kaltenborn, Die Vorläufer des Hugo Grotius. Reference may be made to Berolzheimer, System der Rechts- und Wirthschaftsphilosophie, II, § 24 (World's Legal Philosophies, 112-114); Hinrichs, Geschichte der Rechts- und Staatsprincipien seit der Reformation, I, 1-60; Gierke, Johannes Althusius, 2 ed., 18-49, 142-162, 321. Soto, De justitia et iure (1589). Suarez, De legibus ac deo legislatore (1619). Reference may be made to Figgis, Studies of Political Thought from Gerson to Grotius, Lect. V. Grotius, De iure belli et pacis (1625). Whewell's edition with an abridged translation is convenient. Pufendorf, De jure naturae et gentium (1672). Kennet's translation (1703) may be found in several editions. Burlamaqui, Principes du droit naturel (1747). Nugent's translation is convenient. Wolff, Institutiones juris naturae et gentium (1750). Rutherforth, Institutes of Natural Law (1754-1756). Vattel, Le droit des gens, Préliminaires (1758). There are many translations of Vattel. Rousseau, Contrat social (1762). Tozer's translation is convenient. Blackstone, Commentaries on the Laws of England, Introduction, sect. II (1765). Reference may be made to Berolzheimer, System der Rechts- und Wirthschaftsphilosophie, II, §§ 25-27, 29 (World's Legal Philosophies, 115-134, 141-156); Hinrichs, Geschichte der Rechts- und Staatsprincipien seit der Reformation, I, 60-274, II, III, 1-318; Korkunov, General Theory of Law, transl. by Hastings, § 7; Charmont, La renaissance du droit naturel, 10-43. Hobbes, Leviathan (1651). Spinoza, Ethica (1674). ----, Tractatus theologico-politicas (1670). Elwes' translation of the two last in Bohn's Libraries must be used with caution. Bentham, Principles of Morals and Legislation (1780). A convenient reprint is published by the Clarendon Press. ----, Theory of Legislation. (Originally published in French, 1820). Translated by Hildreth (1864), and in many editions. Mill, On Liberty (1859). Courtney's edition (1892) is convenient. Reference may be made to Duff, Spinoza's Political and Ethical Philosophy; Berolzheimer, System der Rechts- und Wirthschaftsphilosophie, II, § 28 (World's Legal Philosophies, 134-141); Dicey, Law and Public Opinion in England, Lect. 6; Albee, History of English Utilitarianism; Stephen, The English Utilitarians; Solari, L'idea individuale e l'idea sociale nel diritto privato, §§ 31-36. Kant, Metaphysische Anfangsgründe der Rechtslehre (2 ed. 1798). Translated by Hastie as "Kant's Philosophy of Law" (1887). Fichte, Grundlage des Naturrechts (1796, new ed. by Medicus, 1908). Translated by Kroeger as "Fichte's Science of Rights" (1889). Hegel, Grundlinien der Philosophie des Rechts (1821), ed. by Gans (1840), new ed. by Lasson (1911). Translated by Dyde as "Hegel's Philosophy of Right" (1896). This translation must be used cautiously. Krause, Abriss des Systemes der Philosophie des Rechtes (1828). Ahrens, Cours de droit naturel (1837, 8 ed. 1892). Twenty-four editions in seven languages. The German 6th edition (Naturrecht, 1870-1871) contains important matter not in the French editions. Green, Principles of Political Obligation. Lectures delivered in 1879-1880. Reprinted from his Complete Works (1911). Lorimer, Institutes of Law (2 ed. 1880). Lasson, Lehrbuch der Rechtsphilosophie (1882). Miller, Lectures on the Philosophy of Law (1884). Boistel, Cours de philosophie du droit (1870, new ed. 1899). Herkless, Lectures on Jurisprudence (1901). Brown, The Underlying Principles of Modern Legislation (1912). Mention may be made of Beaussire, Les principes du droit (1888); Beudant, Le droit individuel et l'état (1891); Carle, La vita del diritto (2 ed. 1890); Dahn, Rechtsphilosophische Studien (1883); Giner y Calderon, Filosofia del derecho (1898); Harms, Begriff, Formen und Grundlegung der Rechtsphilosophie (1889); Hennebicq, Philosophie de droit et droit naturel (1897); Herbart, Analytische Beleuchtung des Naturrechts und der Moral (1836); Jouffroy, Cours de droit naturel (5 ed. 1876); Kirchmann, Grundbegriffe des Rechts und der Moral (2 ed. 1873); Krause, Das System der Rechtsphilosophie (posthumous, ed. by Röder, 1874); Miraglia, Filosofia del diritto (3 ed. 1903, transl. in Modern Legal Philosophy Series, 1912); Röder, Grundzüge des Naturrechts oder der Rechtsphilosophie (2 ed. 1860); Rosmini, Filosofia del diritto (2 ed. 1865); Rothe, Traité de droit naturel, théorique et appliqué (1884); Schuppe, Grundzüge der Ethik und Rechtsphilosophie (1881); Stahl, Philosophie des Rechts (5 ed. 1878); Tissot, Introduction historique et philosophique à l'étude du droit (1875); Trendelenburg, Naturrecht auf dem Grunde der Ethik (1868); Vareilles-Sommières, Les principes fondamentaux du droit (1889); Wallaschek, Studien zur Rechtsphilosophie (1889). Reference may be made to Gray, Nature and Sources of the Law, §§ 7-9; Bryce, Studies in History and Jurisprudence, Essay 12; Pollock, Essays in Jurisprudence and Ethics, 1-30; Korkunov, General Theory of Law, translated by Hastings, § 4; Bergbohm, Jurisprudenz und Rechtsphilosophie, §§ 6-15; Pound, The Scope and Purpose of Sociological Jurisprudence, 24 Harvard Law Rev., 501; Pound, the Philosophy of Law in America, Archiv für Rechts- und Wirthschaftsphilosophie, VII, 213, 285. Jhering, Der Zweck im Recht (1877-1883, 4 ed. 1904). The first volume is translated by Husik under the title "Law as a Means to an End" (1913). Jhering, Scherz und Ernst in die Jurisprudenz (1884, 9 ed. 1904). Reference may be made to the appendices to Jhering, Law as a Means to an End, transl. by Husik; Berolzheimer, System der Rechts- und Wirthschaftsphilosophie, II, § 43 (World's Legal Philosophies, 327-351); Korkunov, General Theory of Law, translated by Hastings, §§ 13-14; Tanon, L'évolution du droit et la conscience sociale (3 ed. 1911), pt. I, ch. 3. Stammler, Ueber die Methode der geschichtlichen Rechtstheorie (1888). ----, Wirthschaft und Recht (1896, 2 ed. 1905). ----, Die Gesetzmässigkeit in Rechtsordnung und Volkswirthschaft (1902). ----, Lehre von dem rechtigen Rechte (1902). ----, Systematische Theorie der Rechtswissenschaft (1911). ----, Rechts- und Staatstheorien der Neuzeit (1917). Del Vecchio, The Formal Bases of Law, translated by Lisle (1914). A translation of I presupposti filosofici della nozione del diritto (1905), Il concetto del diritto (1906, reprinted 1912), Il concetto della natura e il principio del diritto (1908). For critiques of Stammler, see Berolzheimer, System der Rechts- und Wirthschaftsphilosophie, II, § 48 (World's Legal Philosophies, 398-422); Kantorowicz, Zur Lehre vom richtigen Recht; Croce, Historical Materialism and the Economics of Karl Marx, ch. 2; Geny, Science et technique en droit privé positif, II, 127-130; Binder, Rechtsbegriff und Rechtsidee (1915); Binder, Kritische und metaphysische Rechtsphilosophie, Archiv für Rechts- und Wirthschaftsphilosophie, IX, 142, 267; Vinogradoff, Common Sense in Law, ch. 9. Kohler, Rechtsphilosophie und Universalrechtsgeschichte, in Holtzendorff, Enzyklopädie der Rechtswissenschaft, I (6 ed. 1904, 7 ed. 1913). (Not in prior editions.) Kohler, Lehrbuch der Rechtsphilosophie (1909, 2 ed. 1917). Translated by Albrecht as "Philosophy of Law" (1914). Kohler, Moderne Rechtsprobleme (1907, 2 ed. 1913). Berolzheimer, System der Rechts-und Wirthschaftsphilosophie (1904-1907). Vol. II, history of juristic thought, translated by Jastrow (somewhat abridged) under the title "The World's Legal Philosophies" (1912), Vol. III, general system of legal and economic philosophy, Vol. IV, philosophy of interests of substance, Vol. V, philosophy of criminal law, are important for our purposes. See also Berolzheimer, Rechtsphilosophische Studien (1903); Barillari, Diritto e filosofia (1910-1912); Kohler, Das Recht (1909); Kohler, Recht und Persönlichkeit in die Kultur der Gegenwart (1914). Radbruch, Grundzüge der Rechtsphilosophie (1914). Miceli, Principii di filosofia del diritto (1914). Tourtoulon, Principes philosophiques de l'histoire du droit (1908-1920). Demogue, Notions fondamentales du droit privé (1911). Geny, Méthode d'interprétation et sources en droit privé positif (1899, 2 ed. 1919). A book of the first importance. ----, Science et technique en droit privé positif (1913). Duguit, L'état, le droit objectif et la loi positive (1901). ----, Le droit social, le droit individuel et la transformation de l'état (2 ed. 1911). ----, Les transformations générales du droit privé (1912). Translated in Continental Legal History Series, Vol. XI, ch. 3. ----, Law and the State (1917). Reference may be made to Modern French Legal Philosophy (1916) in the Modern Legal Philosophy Series; Jung, Das Problem des natürlichen Rechts (1912). See also Boucaud, Qu'est-ce que le droit naturel (1906); Charmont, La renaissance du droit naturel (1910); Charmont, Le droit et l'esprit democratique (1908); Djuvara, Le fondement du phénomène juridique (1913); Fabreguettes, La logique judiciaire et l'art de juger (1914); Leroy, La loi (1908). Compare Cathrein, Recht, Naturrecht und Positives Recht (1901). See also Cohen, Jus naturale redivivum, Philosophical Rev., XXV, 761 (1916). Spencer, Justice (1891). See also Anzilotti, La filosofia del diritto e la sociologia (1907); Brugi, Introduzione enciclopedica alle scienze giuridiche e sociale (4 ed. 1907, 1 ed. 1890); Cosentini, Filosofia del diritto e sociologia (1905); Cosentini, Criticismo e positivismo nella filosofia del diritto (1912); Daguanno, La genesi e l'evoluzione del diritto civile (1890); Eleutheropoulos, Rechtsphilosophie, Sociologie und Politik (1908); Fragapane, Obbietto e limiti della filosofia del diritto (1897); Levi, Il diritto naturale nella filosofia di R. Ardigo (1904); Nardi Greco, Sociologia giuridica (1906); Porchat, Sociologia e direito (1902); Ratto, Sociologia e filosofia del diritto (1894); Vadale Papale, La filosofia del diritto a base sociologica (1885); Vander Eycken, Méthode positive de l'interprétation juridique (1907). Post, Der Ursprung des Rechts (1876). ----, Bausteine für eine allgemeine Rechtswissenschaft (1880). ----, Die Grundlagen des Rechts und die Grundzüge seiner Entwickelungsgeschichte (1884). Kuhlenbeck, Natürliche Grundlagen des Rechts (1905). A discussion of fundamental problems of jurisprudence from the Darwinian standpoint. Richard, Origine de l'idée de droit (1892). Vaccaro, Les bases sociologiques du droit et de l'état (1898). Translation of Le basi del diritto e dello stato (1893). A theory of law as the outcome of class struggles. For critiques of the foregoing, see Tanon, L'évolution du droit et la conscience sociale (3 ed. 1911); Tourtoulon, Principes philosophiques de l'histoire du droit (1908-1920); Charmont, La renaissance du droit naturel (1910). Tarde, Les transformations du droit (6 ed. 1909). First published in 1894. Vanni, Lezioni di filosofia del diritto (3 ed. 1908). First published in 1901-1902. See also Bonucci, L'orientazione psicologica dell' etica e della filosofia del diritto (1907); Bozi, Die Weltanschauung der Jurisprudenz (1907, 2 ed. 1911); Bozi, Die Schule der Jurisprudenz (1910); Cruet, La vie du droit et l'impuissance des lois (1914); Grasserie, Principes sociologiques du droit civil (1906); Jellinek, Die sozialethische Bedeutung von Recht, Unrecht und Strafe (2 ed. 1908, 1st ed. 1878); Lagorgette, Le fondement du droit (1907); Miceli, Le fonti del diritto dal punto di vista psichico-sociale (1905); Miceli, Lezioni di filosofia del diritto (1908). Holmes, The Path of the Law, 10 Harvard Law Review, 467 (1897); Collected Papers, 167-202. Ehrlich, Soziologie und Jurisprudenz (1903). Wurzel, Das juristische Denken, 98-102 (1904). Translated in The Science of Legal Method (Modern Legal Philosophy Series, Vol. 9, 421-428). Gnaeus Flavius (Kantorowicz), Der Kampf um die Rechtswissenschaft (1906). Kantorowicz, Rechtswissenschaft und Soziologie (1911). Kelsen, Ueber Grenzen zwischen juristischer und soziologischer Methode (1911). Brugeilles, Le droit et la sociologie (1910). Rolin, Prolégomènes à la science du droit (1911). Ehrlich, Erforschung des lebenden Rechts, in Schmoller's Jahrbuch für Gesetzgebung, XXV, 190 (1911). ----, Grundlegung der Soziologie des Rechts (1913). ----, Das lebende Recht der Völker der Bukowina (1913). Page, Professor Ehrlich's Czernowitz Seminar of Living Law, Proceedings of Fourteenth Annual Meeting of Association of American Law Schools, 46 (1914). Cosentini, Filosofia del diritto (1914). Ehrlich, Die juristische Logik (1918). Kornfeld, Allgemeine Rechtslehre und Jurisprudenz (1920). See also Cosentini, La réforme de la législation civile (1913) (revised and augmented translation of La riforma della legislazione civile, 1911); Kornfeld, Soziale Machtverhältnisse, Grundzüge einer allgemeinen Lehre vom positiven Rechte auf soziologischer Grundlage (1911); Levi, La société et l'ordre juridique (1911); Levi, Contributi ad una teoria filosofica dell' ordine giuridico (1914). LECTURE II Miller, The Data of Jurisprudence, ch. 6. Salmond, Jurisprudence, § 9. Pulszky, Theory of Law and Civil Society, § 173. Bentham, Theory of Legislation, Principles of the Civil Code, pt. I, ch. 1-7. Holland, Jurisprudence, ch. 6. Kant, Philosophy of Law (Hastie's translation) 45-46. Spencer, Justice, ch. 5-6. Willoughby, Social Justice, ch. 2. Paulsen, Ethics (Thilly's translation), ch. 9. Gareis, Vom Begriff Gerechtigkeit. Demogue, Notions fondamentales de droit privé, 119-135. Picard, Le droit pur, liv. 9. Pound, The End of Law as Developed in Legal Rules and Doctrines, 27 Harvard Law Review, 195. Holmes, Common Law, Lect. 1. Post, Ethnologische Jurisprudenz, II, §§ 58-59. Fehr, Hammurapi und das Salische Recht, 135-138. Ames, Law and Morals, 22 Harvard Law Review, 97. Voigt, Das Ius naturale, aequum et bonum und Ius Gentium der Römer, I, 321-323. Stephen, Liberty, Equality, Fraternity, 189-255. Maine, Early History of Institutions (American ed.), 398-400. Ritchie, Natural Rights, ch. 12. Demogue, Notions fondamentales de droit privé, 63-110, 136-142. Jhering, Scherz und Ernst in die Jurisprudenz (10 ed.), 408-425. Pound, Liberty of Contract, 18 Yale Law Journal, 454. ----, The End of Law as Developed in Juristic Thought, 27 Harvard Law Review, 605, 30 Harvard Law Review, 201. Berolzheimer, The World's Legal Philosophies, §§ 17-24. Figgis, Studies of Political Thought from Gerson to Grotius, Lect. 6. Berolzheimer, The World's Legal Philosophies, §§ 25-27. Hobbes, Leviathan, ch. 15. Berolzheimer, The World's Legal Philosophies, § 29. Korkunov, General Theory of Law (translated by Hastings), § 7. Ritchie, Natural Rights, ch. 3. Charmont, La renaissance de droit naturel, 10-43. Berolzheimer, The World's Legal Philosophies, §§ 35-37. Korkunov, General Theory of Law (translated by Hastings), 320-322. Gray, Nature and Sources of the Law, § 58. Berolzheimer, The World's Legal Philosophies, § 28. Mill, On Liberty, ch. 4. Dicey, Law and Public Opinion in England, Lect. 6. Berolzheimer, The World's Legal Philosophies, §§ 43-48, 52. Stammler, Wesen des Rechts und der Rechtswissenschaft (in Systematische Rechtswissenschaft, i-lix). Kohler, Rechtsphilosophie und Universalrechtsgeschichte, §§ 13-16, 33-34, 51. LECTURE III Geny, Méthode d'interprétation et sources en droit privé positif (2 ed. 1919). Vander Eycken, Méthode positive de l'interprétation juridique (1907). Mallieux, L'Exégèse des codes (1908). Ransson, Essai sur l'art de juger (1912). See Wigmore, Problems of Law, 65-101; Pound, The Enforcement of Law, 20 Green Bag, 401; Pound, Courts and Legislation, 7 American Political Science Review, 361-383. Science of Legal Method, Modern Legal Philosophy Series, Vol. 9 (1917). Gnaeus Flavius (Kantorowicz), Der Kampf um die Rechtswissenschaft (1906). Fuchs, Recht und Wahrheit in unserer heutigen Justiz (1908). ----, Die gemeinschädlichkeit der konstruktiven Jurisprudenz (1909). Oertmann, Gesetzeszwang und Richterfreiheit (1909). Rumpf, Gesetz und Richter (1906). Brütt, Die Kunst der Rechtsanwendung (1907). Gmelin, Quousque? Beiträge zur soziologischen Rechtsfindung (1910). Reichel, Gesetz und Richterspruch (1915). Jellinek, Gesetz, Gesetzesanwendung und Zweckmässigkeitserwägung (1913). Kübl, Das Rechtsgefühl (1913). Heck, Gesetzesauslegung und Interessenjurisprudenz (1914). Stampe, Grundriss der Wertbewegungslehre (1912, 1919). See Kohler, Lehrbuch des bürgerlichen Rechts, I, §§ 38-40; Austin, Jurisprudence (3 ed.), 1023-1036; Pound, Spurious Interpretation, 7 Columbia Law Review, 379; Gray, Nature and Sources of the Law, §§ 370-399; Somlo, Juristische Grundlehre, §§ 110-122; Stammler, Rechts- und Staatstheorien der Neuzeit, § 18; Pound, Introduction to English Translation of Saleilles, Individualization of Punishment; Saleilles, Individualization of Punishment, translated by Jastrow, ch. 9; Pound, Administrative Applications of Legal Standards, 44 Rep. American Bar Assn., 445; Laun, Das freie Ermessen und seine Grenzen (1910). LECTURE IV Holmes, Collected Papers, 49-116 (1920). Baty, Vicarious Liability (1916). Hasse, Die Culpa des römischen Rechts (2 ed. 1838). Jhering, Der Schuldmoment im römischen Privatrecht (1867). Rümelin, Schadensersatz ohne Verschulden (1910). Triandafil, L'Idée de faute et l'idée de risque comme fondement de la responsabilité (1914). See Binding, Die Normen und ihre Uebertretung, I, §§ 50-51; Meumann, Prolegomena zu einem System des Vermögensrechts, 80 ff. (1903); Duguit in Progress of Continental Law in the Nineteenth Century (Continental Legal History Series, Vol. XI), 124-128; Geny, Risque et responsabilité, Revue trimestrielle de droit civil, I, 812; Rolin, Responsabilité sans faute, Revue de droit international et legislation comparée, XXXVIII, 64; Demogue, Fault, Risk and Apportionment of Risk in Responsibility, 15 Illinois Law Review, 369; Thayer, Liability Without Fault, 29 Harvard Law Review, 801; Smith, Tort and Absolute Liability, 30 Harvard Law Review, 241, 319, 409; Bohlen, The Rule in Rylands v. Fletcher, 59 University of Pennsylvania Law Review, 298, 373, 423; Isaacs, Fault and Liability, 31 Harvard Law Review, 954. LECTURE V Ely, Property and Contract in Their Relation to the Distribution of Wealth, I, 51-93, 132-258, 295-443, II, 475-549. Hobson and Others, Property, Its Rights and Duties, Historically, Philosophically and Religiously Considered (2 ed.), essays 1-3, 5-8. Green, Principles of Political Obligation, §§ 211-231. Miller, Lectures on the Philosophy of Law, Lect. 5. Herkless, Jurisprudence, ch. 10. Russell, Social Reconstruction, ch. 4. Spencer, Justice, ch. 12. Kohler, Philosophy of Law, Albrecht's translation, 120-133. Maine, Ancient Law, ch. 8. ----, Early History of Institutions (American ed.), 98-118. ----, Early Law and Custom (American ed.), 335-361. Duguit, in Progress of the Law in the Nineteenth Century (Continental Legal History Series, Vol. XI), 129-146. Wagner, Volkswirthschaft und Recht, besonders Vermögensrecht (1894). Perreau, Cours d'économie politique, II, §§ 623-695 (1916). De la Grasserie, Les principes sociologiques du droit civil, ch. 3. Cosentini, La réforme de la législation civile, 371-422 (1913). Fouillée, La propriété sociale et la democratie (1884). Landry, L'Utilité sociale de la propriété individuelle (1901). Meyer, L'Utilité publique et la propriété privée (1893). Thézard, La propriété individuelle: Étude de philosophie historique du droit (1872). Thomas, L'Utilité publique et la propriété privée (1904). Berolzheimer, System der Rechts- und Wirthschaftsphilosophie, IV, §§ 1-13. Felix, Entwickelungsgeschichte des Eigenthums (1883-1899). Karner, Die sociale Funktion der Rechtsinstitute, besonders des Eigenthums (1904). Conti, La proprietà fondiaria nel passato e nel presente (1905). Cosentini, Filosofia del diritto, 250-279 (1914). Fadda, Teoria della proprietà (1907). Labriola, Sul fondamento della proprietà privata (1900). Loria, La proprietà fondiaria e la questione sociale (1897). Piccione, Concetto positivo del diritto di proprietà (1890). Velardita, La proprietà secondo la sociologia (1898). Grotius, De jure belli et pacis, II, 3, 1-5, II, 6, 1 and 14, § 1. Pufendorf, De jure naturae et gentium, IV, 4, §§ 2-6, 14. Locke, On Government, ch. 5. Blackstone, Commentaries, II, 3-10. Kant, Metaphysische Anfangsgründe der Rechtslehre (2 ed.), §§ 1, 6-7, 8, 10, 18-21. Hegel, Grundlinien der Philosophie des Rechts, §§ 44, 46, 49. Lorimer, Institutes of Law (2 ed.), 215 ff. LECTURE VI Ely, Property and Contract in Their Relation to the Distribution of Wealth, II, 576-751. Amos, Systematic View of the Science of Jurisprudence, ch. 11. Herkless, Jurisprudence, ch. 12. Kohler, Philosophy of Law, Albrecht's translation, 134-191. De la Grasserie, Les principes sociologiques du droit civil, ch. 6. Duguit, in Progress of the Law in the Nineteenth Century (Continental Legal History Series, Vol. XI), 100-124. Kant, Metaphysische Anfangsgründe der Rechtslehre (2 ed.), §§ 18-21. Hegel, Grundlinien der Philosophie des Rechts, §§ 71-81. Richte, Grundlage des Naturrechts, §§ 18-20. Williston, Contracts, I, §§ 99-204. Ames, The History of Assumpsit, 2 Harvard Law Review, 1, 53. ----, Two Theories of Consideration, 12 Harvard Law Review, 515; 13 Harvard Law Review, 29. Beale, Notes on Consideration, 17 Harvard Law Review, 71. Langdell, Mutual Promises as a Consideration for Each Other, 14 Harvard Law Review, 496. Pollock, Afterthoughts on Consideration, 17 Law Quarterly Review, 415. Hershey, Letters of Credit, 32 Harvard Law Review, 1. Lorenzen, Causa and Consideration in the Law of Contracts, 28 Yale Law Journal, 621. Pound, Consideration in Equity, 13 Illinois Law Review, 667 (Wigmore Celebration Essays, 435). Index Abstract promise 262, 263 Acquisition by creation 195 by discovery 195, 201 by occupation 196, 211 civil 196-197 derivative 207 in Roman law 194-200 Kant's theory of 210-213 natural 195 things not subject to 197 Act, as basis of liability 158 Acting at one's peril 167, 178 Action _de deiectis et diffusis_ 162 _de recepto_ 162 _in factum_ 160 _in personam_ 151 _noxal_ 162 Adjudication administrative element in 122-123 steps in 100 Administration 108 adjustment with law 137 Administrative tribunals 130, 136 Ames, James Barr 178 Analogy, reasoning by 32 Analysis 53 Analytical application 123-125 reasoning 105 theory 53-54 Anglo-Saxon Law 148 Application of Law 100 ff. agencies of individualizing 129-138 analytical 123-125 equitable 122, 126-129 historical 125-126 latitude of 120, 129 margin of 112 rules 142 theories of 123-129 Aquilian _culpa_ 156, 159, 162 Aquinas, St. Thomas 25-26 Aristotle 25, 38, 76, 82, 138 on application of law 109-110 threefold classification of governmental powers 15 Austin, John 172-174, 259 Bacon 258 Bailment 170, 270, 275 Bartolus 37 Baty, T. 166 Bentham 54, 84 Bergson 141 Bills of Rights 43, 53, 216 Binding 164 Blackstone 26, 180, 208, 268, 278 Buckland, W. W. 161 Callings, restrictions on engaging in 88 Camden, Lord 119 Canon law 252, 254 Carrier, liability of 186 Casuists 254 Catholic jurist-theologians 39 _Causa_ 259 _civilis_ 248, 250, 251 _debendi_ 251, 254, 255 Causation 162, 164 Certainty 142-143 Change, reconciliation with stability 30, 38 Cicero 27, 30, 31, 117 Civilization, as a measure of value 98 jural postulates of, 56, 169-179, 284 Civil law, 237-240 Classes, social, 91 Codification, 46-47, 139-140 Coke, Sir Edward, 133 Commentators, the, 37 Common Law, the, and legislation, 139-140 professional view as to, 278 types of delictal liability in, 168 Community property, 229 Composition, 149, 241-242 Compromises, 94-95 Conceptions, legal, 116 Conditions "implied in law", 259 Conduct, application of law to, 137-139 expectations arising from, 189 Consciousness, as starting point, 84 Consideration, 240, 258-259, 267, 268, 271-273, 278-279 adequacy of, 273-274 circumstances keeping doctrine alive, 278-282 in equity, 258-259, 277 meanings of, 276-277 meritorious, 259 Contract analogy of real transactions, 242 Anglo-American law of, 257-259 anomalies in law of, 282 bargain theory of, 269, 271-273 by estoppel, 187 categories of, 248 civil-law enforcement of, 238-240 common-law categories of, 274-275 common-law enforcement of, 240 consensual, 249 equivalent theory of, 255-256, 257-259, 269, 273-277 Fichte's theory of, 261-262 formal, 245-271 Hegel's theory of, 263 historical background of law of, 241 ff. historical category of, 172 historical theory of, 266-269 injurious-reliance theory of, 261 innominate, 249, 261 Kant's theory of, 261 metaphysical theories of, 260-265 natural-law theory of, 260 "natural principle of", 45-46 objective theory of, 264-265 oral, 282 philosophy of, 253 philosophical theories of, 241 positive theory of, 265 real, 249, 275 religious origins of, 242-247, 252 Roman categories of, 45, 253, 260, 266 Romanist theory of, 263-265 simple, 275 specific enforcement of, 238-240 Spencer's theory of, 265 subjective theory of, 271 theory of basis in personality, 263-265 theory of inherent moral force, 259-260, 261 third-party beneficiaries of, 273 will theory of, 264-265, 269-271, 281-282 _Corpus Iuris Canonici_, 252 Court and jury, 111 Courts, contest with Crown, 53 _Culpa_, 170, 175 abstract standard of, 177 concrete standard of, 178 contractual, 170 delictal, 170 Culpability 158 as basis of liability 184 fiction of 158, 178 Custody 222-223 D'Aguesseau 254 Debt 174, 244, 275 Defamation 280, 281 Delicts, equitable 159 historical category of 172 nominate 162, 169-170, 175 Demosthenes 22 _Depositum_ 249 Derivative acquisition 207 Derry v. Peek 281 Dicey, A. V. 184 Digest of Justinian 107 Discovery 195, 201 Discretion 117, 119, 129 margin of 132 of the chancellor 130-133 relation of to rule 112, 141-143 Dispensing power 113 Distributions, Statute of 142 Division of labor 56, 176, 191 Doctor and Student 252, 259 Doe, Chief Justice 185 _Dolus_ 156, 159, 169, 175 _Dominium_ 199, 225 Due care 170, 175 standard of 119-120 Duguit, L. 98, 232 Dumoulin 39 Dunedin, Lord 276 Duress 159 Duties 173 relational 85 Economic interpretation 66-67, 179-180 Eldon, Lord 47 Empiricism, judicial 34, 283 juristic 34 End of law 54, 59-99 as a measure of value 96 Greek conception of 74-77 ideals of as basis of juristic theories 71-72 keeping the peace as 72-74 maximum individual self-assertion as 84-87 medieval conception of 78-80 nineteenth-century conception of 83-85 preserving social _status quo_ as 74-81 rise of new ideas as to 87-99 Roman conception of 77-78 theories of 72-99 English juristic theory 64 Englishmen, common-law rights of 43, 53 Enterprises, conduct of 137-189 Equality 82-85 Equitable application of law 122, 126-129 Equities 121 Equity 28, 47, 57, 59, 117, 130-133, 137-138, 258-259, 271 and natural law 41, 102, 112, 114, 153, 178 of the tribunal 102 provision for a child as consideration in 272, 274 securing a creditor as consideration in 272 settlement on a wife as consideration in 272, 274 will not aid a volunteer 272 Ethical interpretation 266 _Familia_ 200 Fichte, theory of contract 261-262 Fictions 102-108, 115 dogmatic 179, 180, 274 of culpability 178-179 of negligence 179 of representation 166, 179 of undertaking 171 _Fiducia cum amico_ 249 Fifth Amendment 51 Finding law 100, 104-105 Form and intention 154-155 Formal contracts, 245, 271, 275 historical origin of, 245-247 Formal undertaking, 155 Forms in primitive thinking, 247-248 Formulas, elasticity of, 121 Fortescue, 38 Fourteenth Amendment, 51 Freedom of contract, 191, 265, 267-269 Freedom of industry, 191 French Civil Code, 48, 162, 163 law of delictal liability, 167-168 monarchy, legal theory under, 64 Functional attitude, 91 Generalizations, 145 General security, 72, 96, 149-150, 171, 175, 176, 179, 193, 282 how infringed, 177 Germanic law, 36, 41, 79, 251, 254 Gifts, reformation of, 273 Gloss, The, 37 Glossators, 40 Good faith, 153, 155, 157, 170 corollaries of, 188-189 Gray, J. C., 102 Greek city, problem of order in, 75 security of social institutions in, 75 Greek law, 20-27, 151, 175 Greek philosophers, conception of the end of law, 35, 74-77 conception of the nature of law, 81 conception of the general security, 74 on subjects of litigation, 97, 241 Grotius, 196, 205-207, 260 Hammurapi, 60 Hard bargains, 132 Hegel, 84, 216, 274 theory of contract, 262 theory of property, 214-216 Heraditus, 76 Hindu law, 226-227, 243-245 Hippodamus, 241 Historical application of law, 125-126 Historical categories, 172 Historical school, 279 Holmes, Mr. Justice, 166 Household, partition of, 226-227 Husband and wife, 188 matrimonial property regime, 229 _Hybris_, 77 Idealism, juridical, 41-42, 91 Idealistic interpretation, 266 _Imperium_, 199 "Implied" undertakings, 158, 171 Individual free self-assertion, 54 Individualization, 111, 113-114 by juries, 133-134 in criminal procedure, 138 in punitive justice, 134-135 judicial, 120-121 moral element in, 137 of penal treatment, 129-130 Individual life, 96 Inheritance, 139 Innkeeper, liability of, 186 Insult, 151 Intention, 189 as source of liability, 157 Interdependence, 56 Interdicts, 200 Interests, 89-90 compromises of, 94-95 delimitation of, 192 giving effect to, 90 group, 225 harmony of, 96 individual, in promised advantages, 236 intrinsic importance of, 95 inventory of, 90 of substance, 139, 237 recognition of, 90, 192 securing of 96, 97 valuing of 89, 95-99 weighing of 89, 94 Interpretation 51-52, 100 fiction of 102-108 genuine 105, 124 relation to law making 105 Jessel, Sir George 268 Judicial, contrasted with administrative 108 Jural postulates 169-179, 188, 192-193, 193-194, 237, 249, 284 Juridical idealism 41-42, 91 Jurisconsults 30, 43-44 Jurisprudence, problems of 111 Juristic theories, nature of 69 Jurists, metaphysical 52, 68 search for the more inclusive order 145 seventeenth and eighteenth-century 43-44 Jurist-theologians 39 Spanish 81-82, 83 Jury 129, 133-134 lawlessness of 138 _Jus_ 31 _Jus disponendi_ 221 Just, the, by nature or by convention 25, 27, 31, 55 Justice, Aristotle on 25, 77 definition of in the Institutes 77 executive 137 idea of 65 without law 102, 113 Justinian, Institutes of 77-78 Kant 84, 202, 219, 260 theory of contract 260-261 theory of property 210-214 Kenyon, Lord 47 Kin organization 74 _Laesio enormis_ 274 Langdell, C. C. 259 Law, adjustment with administration 137 and morals 27, 30, 41, 111, 112 application of 100 ff. as an aggregate of rules 110 as a body of agreements 63 as a body of commands 64 as a body of divinely ordained rules 60 as a keeping of the peace 72-74 as a reflection of divine reason 63 as a system of principles 62, 66 as custom 61, 62 as declaratory of economic or social laws 67-68 as precepts discovered by experience 65 as recorded traditional wisdom 61 as restraint on liberty 60 as rules imposed by dominant class 66 as standing between the individual and society 53 as unfolding an idea of right 65 basis of authority of 19, 23-24, 27, 28-29, 38, 69-72 Byzantine theory of 110 distinguished from rules of law 24 elements of 115-116 end of 35-36, 59 ff. effectiveness of 193 finding 100, 104-105 forms of 27-28 government of 136 historical theory of 65, 68 how far made 107-108 idea of self-sufficiency of 17, 67 judge made 35 jurist made 35 maturity of 48, 59, 102 merchant 155, 271, 275 nature of 59, 91, 111 nature of theories of 68-69 political theory of 68 restatement of the 282 science of 101 soft spots in the 282 theories of the nature of 60-68 Law making, judicial 105 presuppositions of 59 Legal standards 51, 114, 116-120, 129, 141 Legal transactions 153 _bonae fidei_ 248 categories of 247 formal 249 _stricti iuris_ 248 Lending 150 Letters of credit 275, 276-277 _Lex_ 31 _Lex Aquilia_ 159 Liability, absolute 179 act as basis of 158, 182 analytical theory of 152-153 as corollary of fault 163-164, 166, 168, 181, 187, 283-284 basis of delictal 177 delictal 163, 167-169 elements of 162-163 employer's 163 fault as basis of 160, 163-164, 167 for cattle going on vacant lands 180-181 for injury by animal 163, 164, 180 for injury by child 159 for injury by minor 162 for injury by a _res ruinosa_ 162 for injury by slave 159 for intentional harm 168 for negligence 175, 180 for non-restraint of agencies 176 for tort, basis of 167 for tort, common-law theory of 168-169 for trespassing cattle 180 for unintended non-culpable harm 168 for unintentional culpable harm 168 for vicious animals 182, 186 from culpability 184 from legal transactions 187 fundamentals of 174 historical anomalies in 166, 179, 186 in French law 161-164 intention as basis of 157, 160 justifiable reliance as basis of 189 meaning of 147 natural sources of 156 noxal 159 of carrier 186 of innkeeper 159, 160, 186 of master of ship 159, 160 of stable keeper 159, 160 on "implied" terms of transaction 170 philosophical theories of 193-194 primitive grounds of 149-151 quasi-contractual 156 quasi-delictal 156 relational 186-188 to make restitution 187 theories of 148 will-theory of 157, 177, 179, 189 without fault 156, 162, 166, 177, 179 Liberty 84-85 idea of 65, 267 idea of as source of liability 157 law and 60 Locke, John 208 Lorimer, James 218 Louis IX 128 Magistrate, power of 112 Maine, Sir Henry 208 _Mala prohibita_ 26 Mandate 272 Mansfield, Lord 47, 260, 262, 273 Manu 60 Maturity of law 48, 59, 102 Maxims 34 Metaphysical jurists 92 _Metus_ 159 Middle Ages, conception of end of law in 78-80 idea of law in 77-81 juristic need in 36 Miller, W. G. 216-217 Mining customs 195 law 201, 222 Minos (pseudo-Platonic dialogue) 24 Mosaic law 60 _Mutuum_ 249 Narada 244 Nationalism in law 39 Natural, meaning of in philosophy of law 31-32 Natural law 25, 31, 35, 40, 41, 45-52, 55, 154, 166, 209, 253, 278, 280 American variant of 50 as a theory of growth 33-34 as deduced from "a free government" 52 as ideal critique 52 economic 205 theory of 42 Natural obligation 250 Natural reason 202 Natural rights 15, 42-43, 55, 83, 92-93, 146, 204, 205 historical-metaphysical theory of 52 theories of 44-45 to produce of labor 209 Nature, meaning of in Greek philosophy 31-32 state of 45 Necessary distinctions 172, 174 Negative community 207 Negligence 119-120, 165, 168, 177, 179, 270, 280 fiction of 179, 180 in speaking 280, 281 _per se_ 179 Neo-Hegelians 94, 98 Neo-Kantians 93, 98 New York, Code of Civil Procedure 105 _Nexum_ 249 _Nomos_, meanings of 22 Noxal liability 159 _Nudum pactum_ 246, 254, 273, 280 Oaths and vows 251 Obligation, civil 252 _ex contractu_ 146, 172 _ex delicto_ 146, 172, 174 _ex uariis causarum figuris_ 16, 172 meaning of 147 moral basis of 250 natural 250, 252-253 nature of 145 oaths as basis of 251-252 _quasi ex contractu_ 257 religious 244 will as basis of 250 Occupation 196, 211 as a legal transaction 213-214 Office or calling, duties attached to 173 Options 272, 274 Ownership, analytical theory of 222-224 development of the idea of 221-231 dogma that everything must be owned 199 things excluded from 199 _Pacta donationis_ 272 Pacts 248, 250, 261, 275 Partition 226-227, 228 Part performance 282 Paul, St. 77 _Peculium_ 227-228 _Pecunia credita_ 249 _Pedis possessio_ 222 Penal treatment, individualizing of 129-130 Penalty, for delict 149 of reparation 149 Personal government 135-136 Personality 191 Pessimism, juristic 57 Petty courts 130, 138 Philosophers, attempt to unify law and law making 19 attempt to reconcile authority with need of change 19 quest for an ultimate solving idea 19 Philosophical thinking, achievements of in law 16-18 as a force in administration of justice 16 needs determining as to law 18 possibilities of in law of contracts 284 Plato 24, 76 Pledge 251 Political interpretation 266 Positivism 54-56 Possession 233-234 Post-Glossators 37 Pothier 45 Primitive law 72-74 faith of in verbal formulas 154 Primogeniture 50 Principles 34, 53, 116 Procedure 111 Proculians 196 Promised advantages 191 Promises, abstract 255, 262, 263 an element in wealth 236 exchange of 254 "from ostentation" 256, 280, 281 moral duty to keep 262 philosophical theory of enforcing 283 simple 275 theories of enforcing 269-276 theory of inherent force of 259-260 Promissory oath 150-151, 251 Property, acquisition of 194-200, 204 analytical theory of 221-224 basis in creation 209 basis in division by agreement 205 basis in economic nature of man 205, 209 community 229 effectiveness of law as to 193 Grotius' theory of 205-207 Hegel's theory of 214-216 historical development of law of 224-232 historical theory of 219, 221-232 household 226-227, 229 inequalities in 215, 221 in natural media of life 201-202 jural postulates of 193, 194 Kant's theory of 210-214 law of 141 Lorimer's theory of 218 medieval theory of 202 metaphysical theories of 210-218 modes of acquiring 194-202 "natural" acquisition of 195 natural-law theories of 204-210 natural limits of right of 195 negative community in 207 philosophical theories of 194 ff. positive theory of 219-221 psychological theory of 209, 23, 234 restrictions on appropriation of 88 restrictions on use and disposition of 87-88 self-acquired 227-228 seventeenth-century theory of 202 socialization of 233 social-utilitarian theory of 225 sociological theories of 232 Spencer's theory of 219 theories of 202-225 theory of in Anglo-American law 208 theory of in antiquity 202 things not subject to 197 titles to 195-197, 211 twentieth-century theories of 232 Protestant jurist-theologians 39 Psychology 90, 94, 279-280 Publicists, French 110 Public utilities 117, 136 exemption of from competition 88-89 power to contract 187 Pufendorf 207-208 Punitive justice 111 individualization of 134-135 Quasi-delict 161, 162 _Ratio legis_, doctrine of 32, 46 Reason, excessive faith in 39, 46-47 Reform movement, legislative 47, 85 Relations 171 duties attached to 173 economic value of 192 interference with 192 legal protection of 193 Release 272, 274 Religion 242 ff. Reparation 149 Representation 179 _Res communes_ 197, 198, 199, 207, 210 _extra commercium_ 197, 201, 216, 217 _ipsa loquitur_ 180, 185-186 _nullius_ 199, 205 _publicae_ 198, 210 _religipsae_ 198 _ruinosa_ 162-163 _sacrae_ 198 _sanctae_ 198 Responsibility at one's peril 167 Right, idea of 65 natural and conventional 15, 25-26, 31 Rights, _in personam_ 146 _in rem_ 147 Roman conception of end of law 77-78 jurisconsults 30, 43 Roman law 26, 36, 41, 45, 105-106, 145, 151, 155, 170, 173-174, 195, 199, 200, 225, 228, 245-250, 254, 275 as basis of medieval law 40 as basis of law in XVII and XVIII centuries 41 contribution of to legal philosophy 36 Rousseau 214 Rules 115-116 adapted to commercial transactions 141 adapted to property 141 and discretion 141-143 application of 142 as guides 121 mechanical application of 142-143 Rylands v. Fletcher 168, 182-186 Sabinians 196 Sale 249 Satisfaction of wants, as an ideal 98-99 Savigny, F. C. von 213 Scholastic philosophy 36 permanent contribution of 38 Seals 240, 271, 275 contract under seal 255 Security of transactions 193, 237 Seisin 225 Self help 73 Seller's talk 280 Separation of powers 102-103, 107 Set off 250 Social contract 204 Social control 99, 225 Social engineering 99 Social ideal 56 as a measure of values 98 Social interdependence 232 as a measure of values 98 Social interests 99 in peace and order 148 in security of transactions 237 Social laws 54-55 Social order, feudal 79-80 idealized form of the 35 static 85 Social sciences, unification of 91 Social status quo, as end of law 35-36 Social utilitarianism 92-98 Socialists 209 Society, Greek conception of 79 jural postulates of civilized 169-179 kin-organized 73-74 medieval conception of 79 Sociology 94 _Sophrosyne_ 77 Sovereignty, Byzantine theory of 40 Specification 195 Specific performance 131-132, 238-240 Spencer, Herbert 84, 97, 201, 265 his law of equal freedom 219 his theory of property 219-221 Spirit and letter 154 Standards, legal 51, 114, 116-120, 129, 141 _Stare decisis_ 140 Status to contract 266 Statute of Frauds 282 Statute of Uses 277 Stipulation 246 of counsel 273, 274 Stoics 197 Strict law 33, 101, 112-113, 153, 155, 165, 280 Substance, interests of 139, 225 Super constitution 15, 51 Symbols 248 Teleology, legal 92 Theories of law, elements in 70-71 Third-party beneficiaries 273 Title, by creation 195 by discovery 195 by occupation 196, 211 "natural" 195 "Tort of negligence" 105 Torts 283 development of liability for 164-167 generalization of liability for 167 law of 117, 167 nominate 164, 165, 170, 175, 283 _Traditio_ 249 Trust, constructive 173 gratuitous declaration of 272, 274 Twelve Tables 249 Unjust enrichment 173, 187 Utilitarians 267, 268 Utility 53 Value, criteria of 89, 95-99 Vrihaspati 243 Waiver 272, 274 Wants, as juristic starting point 89-90 limitations on satisfaction of 97-98 satisfaction of 89-90 Warranties 174, 249 Whale fishing 195 Will, as basis of liability 157, 169 as basis of obligation 250 as juristic starting point 84, 89 Will theory 189 of contract 264-265 Williston, S. 282 Wills, harmonizing of 84, 90, 92-93 Workman's compensation 167 STORRS LECTURES PUBLISHED BY YALE UNIVERSITY PRESS THE REFORM OF LEGAL PROCEDURE. By Moorfield Storey. THE JUDICIARY AND THE PEOPLE. By Frederick N. Judson. CONCERNING JUSTICE. By Lucilius A. Emery. WOMAN'S SUFFRAGE BY CONSTITUTIONAL AMENDMENT. By Henry St. George Tucker. THE NATURE OF THE JUDICIAL PROCESS. By Benjamin N. Cardozo. TRANSCRIBER'S NOTES 1. Passages in italics are surrounded by _underscores_. 2. The original text includes Greek characters. For this text version these letters have been replaced with transliterations. 3. The following misprints have been corrected: "predicability" corrected to "predictability" (page 33) "Aristole" corrected to "Aristotle" (page 313) 4. Other than the corrections listed above, printer's inconsistencies in spelling, punctuation, and hyphenation have been retained. 
37368	----	HARVARD LAW REVIEW VOL. IV 1890-91 CAMBRIDGE, MASS. PUBLISHED BY THE HARVARD LAW REVIEW PUBLISHING ASSOCIATION 1891 _Copyright, 1891_ BY THE HARVARD LAW REVIEW PUBLISHING ASSOCIATION HARVARD LAW REVIEW. VOL. IV. DECEMBER 15, 1890. NO. 5. THE RIGHT TO PRIVACY. "It could be done only on principles of private justice, moral fitness, and public convenience, which, when applied to a new subject, make common law without a precedent; much more when received and approved by usage." WILLES, J., in Millar _v._ Taylor, 4 Burr. 2303, 2312. That the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society. Thus, in very early times, the law gave a remedy only for physical interference with life and property, for trespasses _vi et armis_. Then the "right to life" served only to protect the subject from battery in its various forms; liberty meant freedom from actual restraint; and the right to property secured to the individual his lands and his cattle. Later, there came a recognition of man's spiritual nature, of his feelings and his intellect. Gradually the scope of these legal rights broadened; and now the right to life has come to mean the right to enjoy life,--the right to be let alone; the right to liberty secures the exercise of extensive civil privileges; and the term "property" has grown to comprise every form of possession--intangible, as well as tangible. Thus, with the recognition of the legal value of sensations, the protection against actual bodily injury was extended to prohibit mere attempts to do such injury; that is, the putting another in fear of such injury. From the action of battery grew that of assault.[1] Much later there came a qualified protection of the individual against offensive noises and odors, against dust and smoke, and excessive vibration. The law of nuisance was developed.[2] So regard for human emotions soon extended the scope of personal immunity beyond the body of the individual. His reputation, the standing among his fellow-men, was considered, and the law of slander and libel arose.[3] Man's family relations became a part of the legal conception of his life, and the alienation of a wife's affections was held remediable.[4] Occasionally the law halted,--as in its refusal to recognize the intrusion by seduction upon the honor of the family. But even here the demands of society were met. A mean fiction, the action _per quod servitium amisit_, was resorted to, and by allowing damages for injury to the parents' feelings, an adequate remedy was ordinarily afforded.[5] Similar to the expansion of the right to life was the growth of the legal conception of property. From corporeal property arose the incorporeal rights issuing out of it; and then there opened the wide realm of intangible property, in the products and processes of the mind,[6] as works of literature and art,[7] goodwill,[8] trade secrets, and trade-marks.[9] This development of the law was inevitable. The intense intellectual and emotional life, and the heightening of sensations which came with the advance of civilization, made it clear to men that only a part of the pain, pleasure, and profit of life lay in physical things. Thoughts, emotions, and sensations demanded legal recognition, and the beautiful capacity for growth which characterizes the common law enabled the judges to afford the requisite protection, without the interposition of the legislature. Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right "to be let alone."[10] Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that "what is whispered in the closet shall be proclaimed from the house-tops." For years there has been a feeling that the law must afford some remedy for the unauthorized circulation of portraits of private persons;[11] and the evil of the invasion of privacy by the newspapers, long keenly felt, has been but recently discussed by an able writer.[12] The alleged facts of a somewhat notorious case brought before an inferior tribunal in New York a few months ago,[13] directly involved the consideration of the right of circulating portraits; and the question whether our law will recognize and protect the right to privacy in this and in other respects must soon come before our courts for consideration. Of the desirability--indeed of the necessity--of some such protection, there can, it is believed, be no doubt. The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle. The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury. Nor is the harm wrought by such invasions confined to the suffering of those who may be made the subjects of journalistic or other enterprise. In this, as in other branches of commerce, the supply creates the demand. Each crop of unseemly gossip, thus harvested, becomes the seed of more, and, in direct proportion to its circulation, results in a lowering of social standards and of morality. Even gossip apparently harmless, when widely and persistently circulated, is potent for evil. It both belittles and perverts. It belittles by inverting the relative importance of things, thus dwarfing the thoughts and aspirations of a people. When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance. Easy of comprehension, appealing to that weak side of human nature which is never wholly cast down by the misfortunes and frailties of our neighbors, no one can be surprised that it usurps the place of interest in brains capable of other things. Triviality destroys at once robustness of thought and delicacy of feeling. No enthusiasm can flourish, no generous impulse can survive under its blighting influence. It is our purpose to consider whether the existing law affords a principle which can properly be invoked to protect the privacy of the individual; and, if it does, what the nature and extent of such protection is. * * * * * Owing to the nature of the instruments by which privacy is invaded, the injury inflicted bears a superficial resemblance to the wrongs dealt with by the law of slander and of libel, while a legal remedy for such injury seems to involve the treatment of mere wounded feelings, as a substantive cause of action. The principle on which the law of defamation rests, covers, however, a radically different class of effects from those for which attention is now asked. It deals only with damage to reputation, with the injury done to the individual in his external relations to the community, by lowering him in the estimation of his fellows. The matter published of him, however widely circulated, and however unsuited to publicity, must, in order to be actionable, have a direct tendency to injure him in his intercourse with others, and even if in writing or in print, must subject him to the hatred, ridicule, or contempt of his fellow-men,--the effect of the publication upon his estimate of himself and upon his own feelings not forming an essential element in the cause of action. In short, the wrongs and correlative rights recognized by the law of slander and libel are in their nature material rather than spiritual. That branch of the law simply extends the protection surrounding physical property to certain of the conditions necessary or helpful to worldly prosperity. On the other hand, our law recognizes no principle upon which compensation can be granted for mere injury to the feelings. However painful the mental effects upon another of an act, though purely wanton or even malicious, yet if the act itself is otherwise lawful, the suffering inflicted is _damnum absque injuria_. Injury of feelings may indeed be taken account of in ascertaining the amount of damages when attending what is recognized as a legal injury;[14] but our system, unlike the Roman law, does not afford a remedy even for mental suffering which results from mere contumely and insult, from an intentional and unwarranted violation of the "honor" of another.[15] It is not however necessary, in order to sustain the view that the common law recognizes and upholds a principle applicable to cases of invasion of privacy, to invoke the analogy, which is but superficial, to injuries sustained, either by an attack upon reputation or by what the civilians called a violation of honor; for the legal doctrines relating to infractions of what is ordinarily termed the common-law right to intellectual and artistic property are, it is believed, but instances and applications of a general right to privacy, which properly understood afford a remedy for the evils under consideration. The common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others.[16] Under our system of government, he can never be compelled to express them (except when upon the witness-stand); and even if he has chosen to give them expression, he generally retains the power to fix the limits of the publicity which shall be given them. The existence of this right does not depend upon the particular method of expression adopted. It is immaterial whether it be by word[17] or by signs,[18] in painting,[19] by sculpture, or in music.[20] Neither does the existence of the right depend upon the nature or value of the thought or emotion, nor upon the excellence of the means of expression.[21] The same protection is accorded to a casual letter or an entry in a diary and to the most valuable poem or essay, to a botch or daub and to a masterpiece. In every such case the individual is entitled to decide whether that which is his shall be given to the public.[22] No other has the right to publish his productions in any form, without his consent. This right is wholly independent of the material on which, or the means by which, the thought, sentiment, or emotion is expressed. It may exist independently of any corporeal being, as in words spoken, a song sung, a drama acted. Or if expressed on any material, as a poem in writing, the author may have parted with the paper, without forfeiting any proprietary right in the composition itself. The right is lost only when the author himself communicates his production to the public,--in other words, publishes it.[23] It is entirely independent of the copyright laws, and their extension into the domain of art. The aim of those statutes is to secure to the author, composer, or artist the entire profits arising from publication; but the common-law protection enables him to control absolutely the act of publication, and in the exercise of his own discretion, to decide whether there shall be any publication at all.[24] The statutory right is of no value, _unless_ there is a publication; the common-law right is lost _as soon as_ there is a publication. What is the nature, the basis, of this right to prevent the publication of manuscripts or works of art? It is stated to be the enforcement of a right of property;[25] and no difficulty arises in accepting this view, so long as we have only to deal with the reproduction of literary and artistic compositions. They certainly possess many of the attributes of ordinary property: they are transferable; they have a value; and publication or reproduction is a use by which that value is realized. But where the value of the production is found not in the right to take the profits arising from publication, but in the peace of mind or the relief afforded by the ability to prevent any publication at all, it is difficult to regard the right as one of property, in the common acceptation of that term. A man records in a letter to his son, or in his diary, that he did not dine with his wife on a certain day. No one into whose hands those papers fall could publish them to the world, even if possession of the documents had been obtained rightfully; and the prohibition would not be confined to the publication of a copy of the letter itself, or of the diary entry; the restraint extends also to a publication of the contents. What is the thing which is protected? Surely, not the intellectual act of recording the fact that the husband did not dine with his wife, but that fact itself. It is not the intellectual product, but the domestic occurrence. A man writes a dozen letters to different people. No person would be permitted to publish a list of the letters written. If the letters or the contents of the diary were protected as literary compositions, the scope of the protection afforded should be the same secured to a published writing under the copyright law. But the copyright law would not prevent an enumeration of the letters, or the publication of some of the facts contained therein. The copyright of a series of paintings or etchings would prevent a reproduction of the paintings as pictures; but it would not prevent a publication of a list or even a description of them.[26] Yet in the famous case of Prince Albert _v._ Strange, the court held that the common-law rule prohibited not merely the reproduction of the etchings which the plaintiff and Queen Victoria had made for their own pleasure, but also "the publishing (at least by printing or writing), though not by copy or resemblance, a description of them, whether more or less limited or summary, whether in the form of a catalogue or otherwise."[27] Likewise, an unpublished collection of news possessing no element of a literary nature is protected from piracy.[28] That this protection cannot rest upon the right to literary or artistic property in any exact sense, appears the more clearly when the subject-matter for which protection is invoked is not even in the form of intellectual property, but has the attributes of ordinary tangible property. Suppose a man has a collection of gems or curiosities which he keeps private: it would hardly be contended that any person could publish a catalogue of them, and yet the articles enumerated are certainly not intellectual property in the legal sense, any more than a collection of stoves or of chairs.[29] The belief that the idea of property in its narrow sense was the basis of the protection of unpublished manuscripts led an able court to refuse, in several cases, injunctions against the publication of private letters, on the ground that "letters not possessing the attributes of literary compositions are not property entitled to protection;" and that it was "evident the plaintiff could not have considered the letters as of any value whatever as literary productions, for a letter cannot be considered of value to the author which he never would consent to have published."[30] But these decisions have not been followed,[31] and it may now be considered settled that the protection afforded by the common law to the author of any writing is entirely independent of its pecuniary value, its intrinsic merits, or of any intention to publish the same, and, of course, also, wholly independent of the material, if any, upon which, or the mode in which, the thought or sentiment was expressed. Although the courts have asserted that they rested their decisions on the narrow grounds of protection to property, yet there are recognitions of a more liberal doctrine. Thus in the case of Prince Albert _v._ Strange, already referred to, the opinions both of the Vice-Chancellor and of the Lord Chancellor, on appeal, show a more or less clearly defined perception of a principle broader than those which were mainly discussed, and on which they both placed their chief reliance. Vice-Chancellor Knight Bruce referred to publishing of a man that he had "written to particular persons or on particular subjects" as an instance of possibly injurious disclosures as to private matters, that the courts would in a proper case prevent; yet it is difficult to perceive how, in such a case, any right of property, in the narrow sense, would be drawn in question, or why, if such a publication would be restrained when it threatened to expose the victim not merely to sarcasm, but to ruin, it should not equally be enjoined, if it threatened to embitter his life. To deprive a man of the potential profits to be realized by publishing a catalogue of his gems cannot _per se_ be a wrong to him. The possibility of future profits is not a right of property which the law ordinarily recognizes; it must, therefore, be an infraction of other rights which constitutes the wrongful act, and that infraction is equally wrongful, whether its results are to forestall the profits that the individual himself might secure by giving the matter a publicity obnoxious to him, or to gain an advantage at the expense of his mental pain and suffering. If the fiction of property in a narrow sense must be preserved, it is still true that the end accomplished by the gossip-monger is attained by the use of that which is another's, the facts relating to his private life, which he has seen fit to keep private. Lord Cottenham stated that a man "is entitled to be protected in the exclusive use and enjoyment of that which is exclusively his," and cited with approval the opinion of Lord Eldon, as reported in a manuscript note of the case of Wyatt _v._ Wilson, in 1820, respecting an engraving of George the Third during his illness, to the effect that "if one of the late king's physicians had kept a diary of what he heard and saw, the court would not, in the king's lifetime, have permitted him to print and publish it;" and Lord Cottenham declared, in respect to the acts of the defendants in the case before him, that "privacy is the right invaded." But if privacy is once recognized as a right entitled to legal protection, the interposition of the courts cannot depend on the particular nature of the injuries resulting. These considerations lead to the conclusion that the protection afforded to thoughts, sentiments, and emotions, expressed through the medium of writing or of the arts, so far as it consists in preventing publication, is merely an instance of the enforcement of the more general right of the individual to be let alone. It is like the right not to be assaulted or beaten, the right not to be imprisoned, the right not to be maliciously prosecuted, the right not to be defamed. In each of these rights, as indeed in all other rights recognized by the law, there inheres the quality of being owned or possessed--and (as that is the distinguishing attribute of property) there may be some propriety in speaking of those rights as property. But, obviously, they bear little resemblance to what is ordinarily comprehended under that term. The principle which protects personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form, is in reality not the principle of private property, but that of an inviolate personality.[32] If we are correct in this conclusion, the existing law affords a principle which may be invoked to protect the privacy of the individual from invasion either by the too enterprising press, the photographer, or the possessor of any other modern device for recording or reproducing scenes or sounds. For the protection afforded is not confined by the authorities to those cases where any particular medium or form of expression has been adopted, nor to products of the intellect. The same protection is afforded to emotions and sensations expressed in a musical composition or other work of art as to a literary composition; and words spoken, a pantomime acted, a sonata performed, is no less entitled to protection than if each had been reduced to writing. The circumstance that a thought or emotion has been recorded in a permanent form renders its identification easier, and hence may be important from the point of view of evidence, but it has no significance as a matter of substantive right. If, then, the decisions indicate a general right to privacy for thoughts, emotions, and sensations, these should receive the same protection, whether expressed in writing, or in conduct, in conversation, in attitudes, or in facial expression. It may be urged that a distinction should be taken between the deliberate expression of thoughts and emotions in literary or artistic compositions and the casual and often involuntary expression given to them in the ordinary conduct of life. In other words, it may be contended that the protection afforded is granted to the conscious products of labor, perhaps as an encouragement to effort.[33] This contention, however plausible, has, in fact, little to recommend it. If the amount of labor involved be adopted as the test, we might well find that the effort to conduct one's self properly in business and in domestic relations had been far greater than that involved in painting a picture or writing a book; one would find that it was far easier to express lofty sentiments in a diary than in the conduct of a noble life. If the test of deliberateness of the act be adopted, much casual correspondence which is now accorded full protection would be excluded from the beneficent operation of existing rules. After the decisions denying the distinction attempted to be made between those literary productions which it was intended to publish and those which it was not, all considerations of the amount of labor involved, the degree of deliberation, the value of the product, and the intention of publishing must be abandoned, and no basis is discerned upon which the right to restrain publication and reproduction of such so-called literary and artistic works can be rested, except the right to privacy, as a part of the more general right to the immunity of the person,--the right to one's personality. * * * * * It should be stated that, in some instances where protection has been afforded against wrongful publication, the jurisdiction has been asserted, not on the ground of property, or at least not wholly on that ground, but upon the ground of an alleged breach of an implied contract or of a trust or confidence. Thus, in Abernethy _v._ Hutchinson, 3 L. J. Ch. 209 (1825), where the plaintiff, a distinguished surgeon, sought to restrain the publication in the "Lancet" of unpublished lectures which he had delivered at St. Batholomew's Hospital in London, Lord Eldon doubted whether there could be property in lectures which had not been reduced to writing, but granted the injunction on the ground of breach of confidence, holding "that when persons were admitted as pupils or otherwise, to hear these lectures, although they were orally delivered, and although the parties might go to the extent, if they were able to do so, of putting down the whole by means of short-hand, yet they could do that only for the purposes of their own information, and could not publish, for profit, that which they had not obtained the right of selling." In Prince Albert _v._ Strange, 1 McN. & G. 25 (1849), Lord Cottenham, on appeal, while recognizing a right of property in the etchings which of itself would justify the issuance of the injunction, stated, after discussing the evidence, that he was bound to assume that the possession of the etchings by the defendant had "its foundation in a breach of trust, confidence, or contract," and that upon such ground also the plaintiff's title to the injunction was fully sustained. In Tuck _v._ Priester, 19 Q.B.D. 639 (1887), the plaintiffs were owners of a picture, and employed the defendant to make a certain number of copies. He did so, and made also a number of other copies for himself, and offered them for sale in England at a lower price. Subsequently, the plaintiffs registered their copyright in the picture, and then brought suit for an injunction and damages. The Lords Justices differed as to the application of the copyright acts to the case, but held unanimously that independently of those acts, the plaintiffs were entitled to an injunction and damages for breach of contract. In Pollard _v._ Photographic Co., 40 Ch. Div. 345 (1888), a photographer who had taken a lady's photograph under the ordinary circumstances was restrained from exhibiting it, and also from selling copies of it, on the ground that it was a breach of an implied term in the contract, and also that it was a breach of confidence. Mr. Justice North interjected in the argument of the plaintiff's counsel the inquiry: "Do you dispute that if the negative likeness were taken on the sly, the person who took it might exhibit copies?" and counsel for the plaintiff answered: "In that case there would be no trust or consideration to support a contract." Later, the defendant's counsel argued that "a person has no property in his own features; short of doing what is libellous or otherwise illegal, there is no restriction on the photographer's using his negative." But the court, while expressly finding a breach of contract and of trust sufficient to justify its interposition, still seems to have felt the necessity of resting the decision also upon a right of property,[34] in order to bring it within the line of those cases which were relied upon as precedents.[35] This process of implying a term in a contract, or of implying a trust (particularly where the contract is written, and where there is no established usage or custom), is nothing more nor less than a judicial declaration that public morality, private justice, and general convenience demand the recognition of such a rule, and that the publication under similar circumstances would be considered an intolerable abuse. So long as these circumstances happen to present a contract upon which such a term can be engrafted by the judicial mind, or to supply relations upon which a trust or confidence can be erected, there may be no objection to working out the desired protection through the doctrines of contract or of trust. But the court can hardly stop there. The narrower doctrine may have satisfied the demands of society at a time when the abuse to be guarded against could rarely have arisen without violating a contract or a special confidence; but now that modern devices afford abundant opportunities for the perpetration of such wrongs without any participation by the injured party, the protection granted by the law must be placed upon a broader foundation. While, for instance, the state of the photographic art was such that one's picture could seldom be taken without his consciously "sitting" for the purpose, the law of contract or of trust might afford the prudent man sufficient safeguards against the improper circulation of his portrait; but since the latest advances in photographic art have rendered it possible to take pictures surreptitiously, the doctrines of contract and of trust are inadequate to support the required protection, and the law of tort must be resorted to. The right of property in its widest sense, including all possession, including all rights and privileges, and hence embracing the right to an inviolate personality, affords alone that broad basis upon which the protection which the individual demands can be rested. Thus, the courts, in searching for some principle upon which the publication of private letters could be enjoined, naturally came upon the ideas of a breach of confidence, and of an implied contract; but it required little consideration to discern that this doctrine could not afford all the protection required, since it would not support the court in granting a remedy against a stranger; and so the theory of property in the contents of letters was adopted.[36] Indeed, it is difficult to conceive on what theory of the law the casual recipient of a letter, who proceeds to publish it, is guilty of a breach of contract, express or implied, or of any breach of trust, in the ordinary acceptation of that term. Suppose a letter has been addressed to him without his solicitation. He opens it, and reads. Surely, he has not made any contract; he has not accepted any trust. He cannot, by opening and reading the letter, have come under any obligation save what the law declares; and, however expressed, that obligation is simply to observe the legal right of the sender, whatever it may be, and whether it be called his right of property in the contents of the letter, or his right to privacy.[37] A similar groping for the principle upon which a wrongful publication can be enjoined is found in the law of trade secrets. There, injunctions have generally been granted on the theory of a breach of contract, or of an abuse of confidence.[38] It would, of course, rarely happen that any one would be in the possession of a secret unless confidence had been reposed in him. But can it be supposed that the court would hesitate to grant relief against one who had obtained his knowledge by an ordinary trespass,--for instance, by wrongfully looking into a book in which the secret was recorded, or by eavesdropping? Indeed, in Yovatt _v._ Winyard, 1 J. & W. 394 (1820), where an injunction was granted against making any use of or communicating certain recipes for veterinary medicine, it appeared that the defendant, while in the plaintiff's employ, had surreptitiously got access to his book of recipes, and copied them. Lord Eldon "granted the injunction, upon the ground of there having been a breach of trust and confidence;" but it would seem to be difficult to draw any sound legal distinction between such a case and one where a mere stranger wrongfully obtained access to the book.[39] We must therefore conclude that the rights, so protected, whatever their exact nature, are not rights arising from contract or from special trust, but are rights as against the world; and, as above stated, the principle which has been applied to protect these rights is in reality not the principle of private property, unless that word be used in an extended and unusual sense. The principle which protects personal writings and any other productions of the intellect or of the emotions, is the right to privacy, and the law has no new principle to formulate when it extends this protection to the personal appearance, sayings, acts, and to personal relation, domestic or otherwise.[40] If the invasion of privacy constitutes a legal _injuria_, the elements for demanding redress exist, since already the value of mental suffering, caused by an act wrongful in itself, is recognized as a basis for compensation. The right of one who has remained a private individual, to prevent his public portraiture, presents the simplest case for such extension; the right to protect one's self from pen portraiture, from a discussion by the press of one's private affairs, would be a more important and far-reaching one. If casual and unimportant statements in a letter, if handiwork, however inartistic and valueless, if possessions of all sorts are protected not only against reproduction, but against description and enumeration, how much more should the acts and sayings of a man in his social and domestic relations be guarded from ruthless publicity. If you may not reproduce a woman's face photographically without her consent, how much less should be tolerated the reproduction of her face, her form, and her actions, by graphic descriptions colored to suit a gross and depraved imagination. The right to privacy, limited as such right must necessarily be, has already found expression in the law of France.[41] * * * * * It remains to consider what are the limitations of this right to privacy, and what remedies may be granted for the enforcement of the right. To determine in advance of experience the exact line at which the dignity and convenience of the individual must yield to the demands of the public welfare or of private justice would be a difficult task; but the more general rules are furnished by the legal analogies already developed in the law of slander and libel, and in the law of literary and artistic property. 1. The right to privacy does not prohibit any publication of matter which is of public or general interest. In determining the scope of this rule, aid would be afforded by the analogy, in the law of libel and slander, of cases which deal with the qualified privilege of comment and criticism on matters of public and general interest.[42] There are of course difficulties in applying such a rule, but they are inherent in the subject-matter, and are certainly no greater than those which exist in many other branches of the law,--for instance, in that large class of cases in which the reasonableness or unreasonableness of an act is made the test of liability. The design of the law must be to protect those persons with whose affairs the community has no legitimate concern, from being dragged into an undesirable and undesired publicity and to protect all persons, whatsoever their position or station, from having matters which they may properly prefer to keep private, made public against their will. It is the unwarranted invasion of individual privacy which is reprehended, and to be, so far as possible, prevented. The distinction, however, noted in the above statement is obvious and fundamental. There are persons who may reasonably claim as a right, protection from the notoriety entailed by being made the victims of journalistic enterprise. There are others who, in varying degrees, have renounced the right to live their lives screened from public observation. Matters which men of the first class may justly contend, concern themselves alone, may in those of the second be the subject of legitimate interest to their fellow-citizens. Peculiarities of manner and person, which in the ordinary individual should be free from comment, may acquire a public importance, if found in a candidate for political office. Some further discrimination is necessary, therefore, than to class facts or deeds as public or private according to a standard to be applied to the fact or deed _per se_. To publish of a modest and retiring individual that he suffers from an impediment in his speech or that he cannot spell correctly, is an unwarranted, if not an unexampled, infringement of his rights, while to state and comment on the same characteristics found in a would-be congressman could not be regarded as beyond the pale of propriety. The general object in view is to protect the privacy of private life, and to whatever degree and in whatever connection a man's life has ceased to be private, before the publication under consideration has been made, to that extent the protection is to be withdrawn.[43] Since, then, the propriety of publishing the very same facts may depend wholly upon the person concerning whom they are published, no fixed formula can be used to prohibit obnoxious publications. Any rule of liability adopted must have in it an elasticity which shall take account of the varying circumstances of each case,--a necessity which unfortunately renders such a doctrine not only more difficult of application, but also to a certain extent uncertain in its operation and easily rendered abortive. Besides, it is only the more flagrant breaches of decency and propriety that could in practice be reached, and it is not perhaps desirable even to attempt to repress everything which the nicest taste and keenest sense of the respect due to private life would condemn. In general, then, the matters of which the publication should be repressed may be described as those which concern the private life, habits, acts, and relations of an individual, and have no legitimate connection with his fitness for a public office which he seeks or for which he is suggested, or for any public or quasi public position which he seeks or for which he is suggested, and have no legitimate relation to or bearing upon any act done by him in a public or quasi public capacity. The foregoing is not designed as a wholly accurate or exhaustive definition, since that which must ultimately in a vast number of cases become a question of individual judgment and opinion is incapable of such definition; but it is an attempt to indicate broadly the class of matters referred to. Some things all men alike are entitled to keep from popular curiosity, whether in public life or not, while others are only private because the persons concerned have not assumed a position which makes their doings legitimate matters of public investigation.[44] 2. The right to privacy does not prohibit the communication of any matter, though in its nature private, when the publication is made under circumstances which would render it a privileged communication according to the law of slander and libel. Under this rule, the right to privacy is not invaded by any publication made in a court of justice, in legislative bodies, or the committees of those bodies; in municipal assemblies, or the committees of such assemblies, or practically by any communication made in any other public body, municipal or parochial, or in any body quasi public, like the large voluntary associations formed for almost every purpose of benevolence, business, or other general interest; and (at least in many jurisdictions) reports of any such proceedings would in some measure be accorded a like privilege.[45] Nor would the rule prohibit any publication made by one in the discharge of some public or private duty, whether legal or moral, or in conduct of one's own affairs, in matters where his own interest is concerned.[46] 3. The law would probably not grant any redress for the invasion of privacy by oral publication in the absence of special damage. The same reasons exist for distinguishing between oral and written publications of private matters, as is afforded in the law of defamation by the restricted liability for slander as compared with the liability for libel.[47] The injury resulting from such oral communications would ordinarily be so trifling that the law might well, in the interest of free speech, disregard it altogether.[48] 4. The right to privacy ceases upon the publication of the facts by the individual, or with his consent. This is but another application of the rule which has become familiar in the law of literary and artistic property. The cases there decided establish also what should be deemed a publication,--the important principle in this connection being that a private communication of circulation for a restricted purpose is not a publication within the meaning of the law.[49] 5. The truth of the matter published does not afford a defence. Obviously this branch of the law should have no concern with the truth or falsehood of the matters published. It is not for injury to the individual's character that redress or prevention is sought, but for injury to the right of privacy. For the former, the law of slander and libel provides perhaps a sufficient safeguard. The latter implies the right not merely to prevent inaccurate portrayal of private life, but to prevent its being depicted at all.[50] 6. The absence of "malice" in the publisher does not afford a defence. Personal ill-will is not an ingredient of the offence, any more than in an ordinary case of trespass to person or to property. Such malice is never necessary to be shown in an action for libel or slander at common law, except in rebuttal of some defence, _e.g._, that the occasion rendered the communication privileged, or, under the statutes in this State and elsewhere, that the statement complained of was true. The invasion of the privacy that is to be protected is equally complete and equally injurious, whether the motives by which the speaker or writer was actuated are, taken by themselves, culpable or not; just as the damage to character, and to some extent the tendency to provoke a breach of the peace, is equally the result of defamation without regard to the motives leading to its publication. Viewed as a wrong to the individual, this rule is the same pervading the whole law of torts, by which one is held responsible for his intentional acts, even though they are committed with no sinister intent; and viewed as a wrong to society, it is the same principle adopted in a large category of statutory offences. * * * * * The remedies for an invasion of the right of privacy are also suggested by those administered in the law of defamation, and in the law of literary and artistic property, namely:-- 1. An action of tort for damages in all cases.[51] Even in the absence of special damages, substantial compensation could be allowed for injury to feelings as in the action of slander and libel. 2. An injunction, in perhaps a very limited class of cases.[52] It would doubtless be desirable that the privacy of the individual should receive the added protection of the criminal law, but for this, legislation would be required.[53] Perhaps it would be deemed proper to bring the criminal liability for such publication within narrower limits; but that the community has an interest in preventing such invasions of privacy, sufficiently strong to justify the introduction of such a remedy, cannot be doubted. Still, the protection of society must come mainly through a recognition of the rights of the individual. Each man is responsible for his own acts and omissions only. If he condones what he reprobates, with a weapon at hand equal to his defence, he is responsible for the results. If he resists, public opinion will rally to his support. Has he then such a weapon? It is believed that the common law provides him with one, forged in the slow fire of the centuries, and to-day fitly tempered to his hand. The common law has always recognized a man's house as his castle, impregnable, often, even to its own officers engaged in the execution of its commands. Shall the courts thus close the front entrance to constituted authority, and open wide the back door to idle or prurient curiosity? _Samuel D. Warren, Louis D. Brandeis._ BOSTON, December, 1890. FOOTNOTES: [1] Year Book, Lib. Ass., folio 99, pl. 60 (1348 or 1349), appears to be the first reported case where damages were recovered for a civil assault. [2] These nuisances are technically injuries to property; but the recognition of the right to have property free from interference by such nuisances involves also a recognition of the value of human sensations. [3] Year Book, Lib. Ass., folio 177, p. 19 (1356), (2 Finl. Reeves Eng. Law, 395) seems to be the earliest reported case of an action for slander. [4] Winsmore _v._ Greenbank, Willes, 577 (1745). [5] Loss of service is the gist of the action; but it has been said that "we are not aware of any reported case brought by a parent where the value of such services was held to be the measure of damages." Cassoday, J., in Lavery _v._ Crooke, 52 Wls. 612, 623 (1881). First the fiction of constructive service was invented; Martin _v._ Payne, 9 John. 387 (1812). Then the feelings of the parent, the dishonor to himself and his family, were accepted as the most important element of damage. Bedford _v._ McKowl, 3 Esp. 119 (1800); Andrews _v._ Askey, 8 C. & P. 7 (1837); Phillips _v._ Hoyle, 4 Gray, 568 (1855); Phelin _v._ Kenderdine, 20 Pa. St. 354 (1853). The allowance of these damages would seem to be a recognition that the invasion upon the honor of the family is an injury to the parent's person, for ordinarily mere injury to parental feelings is not an element of damage, _e.g._, the suffering of the parent in case of physical injury to the child. Flemington _v._ Smithers, 2 C. & P. 292 (1827); Black _v._ Carrolton R. R. Co., 10 La. Ann. 33 (1855); Covington Street Ry. Co. _v._ Packer, 9 Bush, 455 (1872). [6] "The notion of Mr. Justice Yates that nothing is property which cannot be earmarked and recovered in detinue or trover, may be true in an early stage of society, when property is in its simple form, and the remedies for violation of it also simple, but is not true in a more civilized state, when the relations of life and the interests arising therefrom are complicated." Erie, J., in Jefferys _v._ Boosey, 4 H. L. C. 815, 869 (1854). [7] Copyright appears to have been first recognized as a species of private property in England in 1558. Drone on Copyright, 54, 61. [8] Gibblett _v._ Read, 9 Mod. 459 (1743), is probably the first recognition of goodwill as property. [9] Hogg _v._ Kirby, 8 Ves. 215 (1803). As late as 1742 Lord Hardwicke refused to treat a trade-mark as property for infringement upon which an injunction could be granted. Blanchard _v._ Hill, 2 Atk. 484. [10] Cooley on Torts, 2d ed., p. 29. [11] 8 Amer. Law Reg. N. S. 1 (1869); 12 Wash. Law Rep. 353 (1884); 24 Sol. J. & Rep. 4 (1879). [12] Scribner's Magazine, July, 1890. "The Rights of the Citizen: To his Reputation," by E. L. Godkin, Esq., pp. 65, 67. [13] Marion Manola _v._ Stevens & Myers, N. Y. Supreme Court, "New York Times" of June 15, 18, 21, 1890. There the complainant alleged that while she was playing in the Broadway Theatre, in a rôle which required her appearance in tights, she was, by means of a flash light, photographed surreptitiously and without her consent, from one of the boxes by defendant Stevens, the manager of the "Castle in the Air" company, and defendant Myers, a photographer, and prayed that the defendants might be restrained from making use of the photograph taken. A preliminary injunction issued _ex parte_, and a time was set for argument of the motion that the injunction should be made permanent, but no one then appeared in opposition. [14] Though the legal value of "feelings" is now generally recognized, distinctions have been drawn between the several classes of cases in which compensation may or may not be recovered. Thus, the fright occasioned by an assault constitutes a cause of action, but fright occasioned by negligence does not. So fright coupled with bodily injury affords a foundation for enhanced damages; but, ordinarily, fright unattended by bodily injury cannot be relied upon as an element of damages, even where a valid cause of action exists, as in trespass _quare clausum fregit_. Wyman _v._ Leavitt, 71 Me. 227; Canning _v._ Williamstown, 1 Cush. 451. The allowance of damages for injury to the parents' feelings, in case of seduction, abduction of a child (Stowe _v._ Heywood, 7 All. 118), or removal of the corpse of child from a burial-ground (Meagher _v._ Driscoll, 99 Mass. 281), are said to be exceptions to a general rule. On the other hand, injury to feelings is a recognized element of damages in actions of slander and libel, and of malicious prosecution. These distinctions between the cases, where injury to feelings does and where it does not constitute a cause of action or legal element of damages, are not logical, but doubtless serve well as practical rules. It will, it is believed, be found, upon examination of the authorities, that wherever substantial mental suffering would be the natural and probable result of the act, there compensation for injury to feelings has been allowed, and that where no mental suffering would ordinarily result, or if resulting, would naturally be but trifling, and, being unaccompanied by visible signs of injury, would afford a wide scope for imaginative ills, there damages have been disallowed. The decisions on this subject illustrate well the subjection in our law of logic to common-sense. [15] "Injuria, in the narrower sense, is every intentional and illegal violation of honour, _i.e._, the whole personality of another." "Now an outrage is committed not only when a man shall be struck with the fist, say, or with a club, or even flogged, but also if abusive language has been used to one." Salkowski, Roman Law, p. 668 and p. 669, n. 2. [16] "It is certain every man has a right to keep his own sentiments, if he pleases. He has certainly a right to judge whether he will make them public, or commit them only to the sight of his friends." Yates, J., in Millar _v._ Taylor, 4 Burr. 2303, 2379 (1769). [17] Nicols _v._ Pitman, 26 Ch. D. 374 (1884). [18] Lee _v._ Simpson, 3 C. B. 871, 881; Daly _v._ Palmer, 6 Blatchf. 256. [19] Turner _v._ Robinson, 10 Ir. Ch. 121; s. c. ib. 510. [20] Drone on Copyright, 102. [21] "Assuming the law to be so, what is its foundation in this respect? It is not, I conceive, referable to any consideration peculiarly literary. Those with whom our common law originated had not probably among their many merits that of being patrons of letters; but they knew the duty and necessity of protecting property, and with that general object laid down rules providently expansive,--rules capable of adapting themselves to the various forms and modes of property which peace and cultivation might discover and introduce. "The produce of mental labor, thoughts and sentiments, recorded and preserved by writing, became, as knowledge went onward and spread, and the culture of man's understanding advanced, a kind of property impossible to disregard, and the interference of modern legislation upon the subject, by the stat. 8 Anne, professing by its title to be 'For the encouragement of learning,' and using the words 'taken the liberty,' in the preamble, whether it operated in augmentation or diminution of the private rights of authors, having left them to some extent untouched, it was found that the common law, in providing for the protection of property, provided for their security, at least before general publication by the writer's consent." Knight Bruce, V. C., in Prince Albert _v._ Strange, 2 DeGex & Sm. 652, 695 (1849). [22] "The question, however, does not turn upon the form or amount of mischief or advantage, loss or gain. The author of manuscripts, whether he is famous or obscure, low or high, has a right to say of them, if innocent, that whether interesting or dull, light or heavy, saleable or unsaleable, they shall not, without his consent, be published." Knight Bruce, V. C., in Prince Albert _v._ Strange, 2 DeGex & Sm. 652, 694. [23] Duke of Queensberry _v._ Shebbeare, 2 Eden, 329 (1758); Bartlett _v._ Crittenden, 5 McLean, 32, 41 (1849). [24] Drone on Copyright, pp. 102, 104; Parton _v._ Prang, 3 Clifford, 537, 548 (1872); Jefferys _v._ Boosey, 4 H. L. C. 815, 867, 962 (1854). [25] "The question will be whether the bill has stated facts of which the court can take notice, as a case of civil property, which it is bound to protect. The injunction cannot be maintained on any principle of this sort, that if a letter has been written in the way of friendship, either the continuance or the discontinuance of the friendship affords a reason for the interference of the court." Lord Eldon in Gee _v._ Pritchard, 2 Swanst. 402, 413 (1818). "Upon the principle, therefore, of protecting property, it is that the common law, in cases not aided or prejudiced by statute, shelters the privacy and seclusion of thought and sentiments committed to writing, and desired by the author to remain not generally known." Knight Bruce, V. C., in Prince Albert _v._ Strange, 2 DeGex & Sm. 652, 695. "It being conceded that reasons of expediency and public policy can never be made the sole basis of civil jurisdiction, the question, whether upon any ground the plaintiff can be entitled to the relief which he claims, remains to be answered; and it appears to us that there is only one ground upon which his title to claim, and our jurisdiction to grant, the relief, can be placed. We must be satisfied, that the publication of private letters, without the consent of the writer, is an invasion of an exclusive right of property which remains in the writer, even when the letters have been sent to, and are still in the possession of his correspondent." Duer, J., in Woolsey _v._ Judd, 4 Duer, 379, 384 (1855). [26] "A work lawfully published, in the popular sense of the term, stands in this respect, I conceive, differently from a work which has never been in that situation. The former may be liable to be translated, abridged, analyzed, exhibited in morsels, complimented, and otherwise treated, in a manner that the latter is not. "Suppose, however,--instead of a translation, an abridgment, or a review,--the case of a catalogue,--suppose a man to have composed a variety of literary works ('innocent,' to use Lord Eldon's expression), which he has never printed or published, or lost the right to prohibit from being published,--suppose a knowledge of them unduly obtained by some unscrupulous person, who prints with a view to circulation a descriptive catalogue, or even a mere list of the manuscripts, without authority or consent, does the law allow this? I hope and believe not. The same principles that prevent more candid piracy must, I conceive, govern such a case also. "By publishing of a man that he has written to particular persons, or on particular subjects, he may be exposed, not merely to sarcasm, he may be ruined. There may be in his possession returned letters that he had written to former correspondents, with whom to have had relations, however harmlessly, may not in after life be a recommendation; or his writings may be otherwise of a kind squaring in no sort with his outward habits and worldly position. There are callings even now in which to be convicted of literature, is dangerous, though the danger is sometimes escaped. "Again, the manuscripts may be those of a man on account of whose name alone a mere list would be matter of general curiosity. How many persons could be mentioned, a catalogue of whose unpublished writings would, during their lives or afterwards, command a ready sale?" Knight Bruce, V. C., in Prince Albert _v._ Strange, 2 DeGex & Sm. 652, 693. [27] "A copy or impression of the etchings would only be a means of communicating knowledge and information of the original, and does not a list and description of the same? The means are different, but the object and effect are similar; for in both, the object and effect is to make known to the public more or less of the unpublished work and composition of the author, which he is entitled to keep wholly for his private use and pleasure, and to withhold altogether, or so far as he may please, from the knowledge of others. Cases upon abridgments, translations, extracts, and criticisms of published works have no reference whatever to the present question; they all depend upon the extent of right under the acts respecting copyright, and have no analogy to the exclusive rights in the author of unpublished compositions which depend entirely upon the common-law right of property." Lord Cottenham in Prince Albert _v._ Strange, 1 McN. & G. 23, 43 (1849). "Mr. Justice Yates, in Millar _v._ Taylor, said, that an author's case was exactly similar to that of an inventor of a new mechanical machine; that both original inventions stood upon the same footing in point of property, whether the case were mechanical or literary, whether an epic poem or an orrery; that the immorality of pirating another man's invention was as great as that of purloining his ideas. Property in mechanical works or works of art, executed by a man for his own amusement, instruction, or use, is allowed to subsist, certainly, and may, before publication by him, be invaded, not merely by copying, but by description or by catalogue, as it appears to me. A catalogue of such works may in itself be valuable. It may also as effectually show the bent and turn of the mind, the feelings and taste of the artist, especially if not professional, as a list of his papers. The portfolio or the studio may declare as much as the writing-table. A man may employ himself in private in a manner very harmless, but which, disclosed to society, may destroy the comfort of his life, or even his success in it. Every one, however, has a right, I apprehend, to say that the produce of his private hours is not more liable to publication without his consent, because the publication must be creditable or advantageous to him, than it would be in opposite circumstances." "I think, therefore, not only that the defendant here is unlawfully invading the plaintiff's rights, but also that the invasion is of such a kind and affects such property as to entitle the plaintiff to the preventive remedy of an injunction; and if not the more, yet, certainly, not the less, because it is an intrusion,--an unbecoming and unseemly intrusion,--an intrusion not alone in breach of conventional rules, but offensive to that inbred sense of propriety natural to every man,--if intrusion, indeed, fitly describes a sordid spying into the privacy of domestic life,--into the home (a word hitherto sacred among us), the home of a family whose life and conduct form an acknowledged title, though not their only unquestionable title, to the most marked respect in this country." Knight Bruce, V. C., in Prince Albert _v._ Strange, 2 DeGex & Sm. 652, 696, 697. [28] Kiernan _v._ Manhattan Quotation Co., 50 How. Pr. 194 (1876). [29] "The defendants' counsel say, that a man acquiring a knowledge of another's property without his consent is not by any rule or principle which a court of justice can apply (however secretly he may have kept or endeavored to keep it) forbidden without his consent to communicate and publish that knowledge to the world, to inform the world what the property is, or to describe it publicly, whether orally, or in print or writing. "I claim, however, leave to doubt whether, as to property of a private nature, which the owner, without infringing on the right of any other, may and does retain in a state of privacy, it is certain that a person who, without the owner's consent, express or implied, acquires a knowledge of it, can lawfully avail himself of the knowledge so acquired to publish without his consent a description of the property. "It is probably true that such a publication may be in a manner or relate to property of a kind rendering a question concerning the lawfulness of the act too slight to deserve attention. I can conceive cases, however, in which an act of the sort may be so circumstanced or relate to property such, that the matter may weightily affect the owner's interest or feelings, or both. For instance, the nature and intention of an unfinished work of an artist, prematurely made known to the world, may be painful and deeply prejudicial against him; nor would it be difficult to suggest other examples.... "It was suggested that, to publish a catalogue of a collector's gems, coins, antiquities, or other such curiosities, for instance, without his consent, would be to make use of his property without his consent; and it is true, certainly, that a proceeding of that kind may not only as much embitter one collector's life as it would flatter another,--may be not only an ideal calamity,--but may do the owner damage in the most vulgar sense. Such catalogues, even when not descriptive, are often sought after, and sometimes obtain very substantial prices. These, therefore, and the like instances, are not necessarily examples merely of pain inflicted in point of sentiment or imagination; they may be that, and something else beside." Knight Bruce, V. C., in Prince Albert _v._ Strange, 2 DeGex & Sm. 652, 689, 690. [30] Hoyt _v._ Mackenzie, 3 Barb. Ch. 320, 324 (1848); Wetmore _v._ Scovell, 3 Edw. Ch. 515 (1842). See Sir Thomas Plumer in 2 Ves. & B. 19 (1813). [31] Woolsey _v._ Judd, 4 Duer, 379, 404 (1855). "It has been decided, fortunately for the welfare of society, that the writer of letters, though written without any purpose of profit, or any idea of literary property, possesses such a right of property in them, that they cannot be published without his consent, unless the purposes of justice, civil or criminal, require the publication." Sir Samuel Romilly, _arg._, in Gee _v._ Pritchard, 2 Swanst. 402, 418 (1818). But see High on Injunctions, 3d ed, § 1012, _contra_. [32] "But a doubt has been suggested, whether mere private letters, not intended as literary compositions, are entitled to the protection of an injunction in the same manner as compositions of a literary character. This doubt has probably arisen from the habit of not discriminating between the different rights of property which belong to an unpublished manuscript, and those which belong to a published book. The latter, as I have intimated in another connection, is a right to take the profits of publication. The former is a right to control the act of publication, and to decide whether there shall be any publication at all. It has been called a right of property; an expression perhaps not quite satisfactory, but on the other hand sufficiently descriptive of a right which, however incorporeal, involves many of the essential elements of property, and is at least positive and definite. This expression can leave us in no doubt as to the meaning of the learned judges who have used it, when they have applied it to cases of unpublished manuscripts. They obviously intended to use it in no other sense, than in contradistinction to the mere interests of feeling, and to describe a substantial right of legal interest." Curtis on Copyright, pp. 93, 94. The resemblance of the right to prevent publication of an unpublished manuscript to the well-recognized rights of personal immunity is found in the treatment of it in connection with the rights of creditors. The right to prevent such publication and the right of action for its infringement, like the cause of action for an assault, battery, defamation, or malicious prosecution, are not assets available to creditors. "There is no law which can compel an author to publish. No one can determine this essential matter of publication but the author. His manuscripts, however valuable, cannot, without his consent, be seized by his creditors as property." McLean, J., in Bartlett _v._ Crittenden, 5 McLean, 32, 37 (1849). It has also been held that even where the sender's rights are not asserted, the receiver of a letter has not such property in it as passes to his executor or administrator as a salable asset. Eyre _v._ Higbee, 22 How. Pr. (N. Y.) 198 (1861). "The very meaning of the word 'property' in its legal sense is 'that which is peculiar or proper to any person; that which belongs exclusively to one.' The first meaning of the word from which it is derived--_proprius_--is 'one's own.'" Drone on Copyright, p. 6. It is clear that a thing must be capable of identification in order to be the subject of exclusive ownership. But when its identity can be determined so that individual ownership may be asserted, it matters not whether it be corporeal or incorporeal. [33] "Such then being, as I believe, the nature and the foundation of the common law as to manuscripts independently of Parliamentary additions and subtractions, its operation cannot of necessity be confined to literary subjects. That would be to limit the rule by the example. Wherever the produce of labor is liable to invasion in an analogous manner, there must, I suppose, be a title to analogous protection or redress." Knight Bruce, V. C., in Prince Albert _v._ Strange, 2 DeGex & Sm. 652, 696. [34] "The question, therefore, is whether a photographer who has been employed by a customer to take his or her portrait is justified in striking off copies of such photograph for his own use, and selling and disposing of them, or publicly exhibiting them by way of advertisement or otherwise, without the authority of such customer, either express or implied. I say 'express or implied,' because a photographer is frequently allowed, on his own request, to take a photograph of a person under circumstances in which a subsequent sale by him must have been in the contemplation of both parties, though not actually mentioned. To the question thus put, my answer is in the negative, that the photographer is not justified in so doing. Where a person obtains information in the course of a confidential employment, the law does not permit him to make any improper use of the information so obtained; and an injunction is granted, if necessary, to restrain such use; as, for instance, to restrain a clerk from disclosing his master's accounts, or an attorney from making known his client's affairs, learned in the course of such employment. Again, the law is clear that a breach of contract, whether express or implied, can be restrained by injunction. In my opinion the case of the photographer comes within the principles upon which both these classes of cases depend. The object for which he is employed and paid is to supply his customer with the required number of printed photographs of a given subject. For this purpose the negative is taken by the photographer on glass; and from this negative copies can be printed in much larger numbers than are generally required by the customer. The customer who sits for the negative thus puts the power of reproducing the object in the hands of the photographer; and in my opinion the photographer who uses the negative to produce other copies for his own use, without authority, is abusing the power confidentially placed in his hands merely for the purpose of supplying the customer; and further, I hold that the bargain between the customer and the photographer includes, by implication, an agreement that the prints taken from the negative are to be appropriated to the use of the customer only." Referring to the opinions delivered in Tuck _v._ Priester, 19 Q. B. D. 639, the learned justice continued: "Then Lord Justice Lindley says: 'I will deal first with the injunction, which stands, or may stand, on a totally different footing from either the penalties or the damages. It appears to me that the relation between the plaintiffs and the defendant was such that, whether the plaintiffs had any copyright or not, the defendant has done that which renders him liable to an injunction. He was employed by the plaintiffs to make a certain number of copies of the picture, and that employment carried with it the necessary implication that the defendant was not to make more copies for himself, or to sell the additional copies in this country in competition with his employer. Such conduct on his part is a gross breach of contract and a gross breach of faith, and, in my judgment, clearly entitles the plaintiffs to an injunction, whether they have a copyright in the picture or not.' That case is the more noticeable, as the contract was in writing; and yet it was held to be an implied condition that the defendant should not make any copies for himself. The phrase 'a gross breach of faith' used by Lord Justice Lindley in that case applies with equal force to the present, when a lady's feelings are shocked by finding that the photographer she has employed to take her likeness for her own use is publicly exhibiting and selling copies thereof." North, J., in Pollard _v._ Photographic Co., 40 Ch. D. 345, 349-352 (1888). "It may be said also that the cases to which I have referred are all cases in which there was some right of property infringed, based upon the recognition by the law of protection being due for the products of a man's own skill or mental labor; whereas in the present case the person photographed has done nothing to merit such protection, which is meant to prevent legal wrongs, and not mere sentimental grievances. But a person whose photograph is taken by a photographer is not thus deserted by the law; for the Act of 25 and 26 Vict., c. 68, s. 1, provides that when the negative of any photograph is made or executed for or on behalf of another person for a good or valuable consideration, the person making or executing the same shall not retain the copyright thereof, unless it is expressly reserved to him by agreement in writing signed by the person for or on whose behalf the same is so made or executed; but the copyright shall belong to the person for or on whose behalf the same shall have been made or executed. "The result is that in the present case the copyright in the photograph is in one of the plaintiffs. It is true, no doubt, that sect. 4 of the same act provides that no proprietor of copyright shall be entitled to the benefit of the act until registration, and no action shall be sustained in respect of anything done before registration; and it was, I presume, because the photograph of the female plaintiff has not been registered that this act was not referred to by counsel in the course of the argument. But, although the protection against the world in general conferred by the act cannot be enforced until after registration, this does not deprive the plaintiffs of their common-law right of action against the defendant for his breach of contract and breach of faith. This is quite clear from the cases of Morison _v._ Moat [9 Hare, 241] and Tuck _v._ Priester [19 Q. B. D. 629] already referred to, in which latter case the same act of Parliament was in question." Per North, J., ibid. p. 352. This language suggests that the property right in photographs or portraits may be one created by statute, which would not exist in the absence of registration; but it is submitted that it must eventually be held here, as it has been in the similar cases, that the statute provision becomes applicable only when there is a publication, and that before the act of registering there is property in the thing upon which the statute is to operate. [35] Duke of Queensberry _v._ Shebbeare, 2 Eden, 329; Murray _v._ Heath, 1 B. & Ad. 804; Tuck _v._ Priester, 19 Q. B. D. 629. [36] See Mr. Justice Story in Folsom _v._ Marsh, 2 Story, 100, 111 (1841):-- "If he [the recipient of a letter] attempt to publish such letter or letters on other occasions, not justifiable, a court of equity will prevent the publication by an injunction, as a breach of private confidence or contract, or of the rights of the author; and _a fortiori_, if he attempt to publish them for profit; for then it is not a mere breach of confidence or contract, but it is a violation of the exclusive copyright of the writer.... The general property, and the general rights incident to property, belong to the writer, whether the letters are literary compositions, or familiar letters, or details of facts, or letters of business. The general property in the manuscripts remains in the writer and his representatives, as well as the general copyright. _A fortiori_, third persons, standing in no privity with either party, are not entitled to publish them, to subserve their own private purposes of interest, or curiosity, or passion." [37] "The receiver of a letter is not a bailee, nor does he stand in a character analogous to that of a bailee. There is no right to possession, present or future, in the writer. The only right to be enforced against the holder is a right to prevent publication, not to require the manuscript from the holder in order to a publication of himself." Per Hon. Joel Parker, quoted in Grigsby _v._ Breckenridge, 2 Bush. 480, 489 (1867). [38] In Morison _v._ Moat, 9 Hare, 241, 255 (1851), a suit for an injunction to restrain the use of a secret medical compound, Sir George James Turner, V. C., said: "That the court has exercised jurisdiction in cases of this nature does not, I think, admit of any question. Different grounds have indeed been assigned for the exercise of that jurisdiction. In some cases it has been referred to property, in others to contract, and in others, again, it has been treated as founded upon trust or confidence,--meaning, as I conceive, that the court fastens the obligation on the conscience of the party, and enforces it against him in the same manner as it enforces against a party to whom a benefit is given, the obligation of performing a promise on the faith of which the benefit has been conferred; but upon whatever grounds the jurisdiction is founded, the authorities leave no doubt as to the exercise of it." [39] A similar growth of the law showing the development of contractual rights into rights of property is found in the law of goodwill. There are indications, as early as the Year Books, of traders endeavoring to secure to themselves by contract the advantages now designated by the term "goodwill," but it was not until 1743 that goodwill received legal recognition as property apart from the personal covenants of the traders. See Allan on Goodwill, pp. 2, 3. [40] The application of an existing principle to a new state of facts is not judicial legislation. To call it such is to assert that the existing body of law consists practically of the statutes and decided cases, and to deny that the principles (of which these cases are ordinarily said to be evidence) exist at all. It is not the application of an existing principle to new cases, but the introduction of a new principle, which is properly termed judicial legislation. But even the fact that a certain decision would involve judicial legislation should not be taken as conclusive against the propriety of making it. This power has been constantly exercised by our judges, when applying to a new subject principles of private justice, moral fitness, and public convenience. Indeed, the elasticity of our law, its adaptability to new conditions, the capacity for growth, which has enabled it to meet the wants of an ever changing society and to apply immediate relief for every recognized wrong, have been its greatest boast. "I cannot understand how any person who has considered the subject can suppose that society could possibly have gone on if judges had not legislated, or that there is any danger whatever in allowing them that power which they have in fact exercised, to make up for the negligence or the incapacity of the avowed legislator. That part of the law of every country which was made by judges has been far better made than that part which consists of statutes enacted by the legislature." I Austin's Jurisprudence, p. 224. The cases referred to above show that the common law has for a century and a half protected privacy in certain cases, and to grant the further protection now suggested would be merely another application of an existing rule. [41] Loi Relative à la Presse. 11 Mai 1868. "11. Toute publication dans un écrit périodique relative à un fait de la vie privée constitue une contravention punie d'un amende de cinq cent francs. "La poursuite ne pourra être exercée que sur la plainte de la partie intéressée." Rivière, Codes Français et Lois Usuelles. App. Code Pen., p. 20. [42] See Campbell _v._ Spottiswoode, 3 B. & S. 769, 776; Henwood _v._ Harrison, L. R. 7 C. P. 606; Gott _v._ Pulsifer, 122 Mass. 235. [43] "Nos moeurs n'admettent pas la prétention d'enlever aux investigations de la publicité les actes qui relèvent de la vie publique, et ce dernier mot ne doit pas être restreint à la vie officielle ou à celle du fonctionnaire. Tout homme qui appelle sur lui l'attention ou les regards du publique, soit par une mission qu'il a reçue ou qu'il se donne, soit par le rôle qu'il s'attribue dans l'industrie, les arts, le theâtre, etc., ne peut plus invoquer contre la critique ou l'exposé de sa conduite d'autre protection que les lois qui repriment la diffamation et l'injure." Circ. Mins. Just., 4 Juin, 1868. Rivière Codes Français et Lois Usuelles, App. Code Pen. 20 n (b). [44] "Celui-la seul a droit au silence absolu qui n'a pas expressément ou indirectment provoqué ou authorisé l'attention, l'approbation ou le blâme." Circ. Mins. Just., 4 Juin, 1868. Rivière Codes Français et Lois Usuelles, App. Code Pen. 20 n (b). The principle thus expressed evidently is designed to exclude the wholesale investigations into the past of prominent public men with which the American public is too familiar, and also, unhappily, too well pleased; while not entitled to the "silence _absolute_" which less prominent men may claim as their due, they may still demand that all the details of private life in its most limited sense shall not be laid bare for inspection. [45] Wason _v._ Walters, L. R. 4 Q. B. 73; Smith _v._ Higgins, 16 Gray, 251; Barrows _v._ Bell, 7 Gray, 331. [46] This limitation upon the right to prevent the publication of private letters was recognized early:-- "But, consistently with this right [of the writer of letters], the persons to whom they are addressed may have, nay, must, by implication, possess the right to publish any letter or letters addressed to them, upon such occasions, as require, or justify, the publication or public use of them; but this right is strictly limited to such occasions. Thus, a person may justifiably use and publish, in a suit at law or in equity, such letter or letters as are necessary and proper, to establish his right to maintain the suit, or defend the same. So, if he be aspersed or misrepresented by the writer, or accused of improper conduct, in a public manner, he may publish such parts of such letter or letters, but no more, as may be necessary to vindicate his character and reputation, or free him from unjust obloquy and reproach." Story, J., in Folsom _v._ Marsh, 2 Story, 100, 110, 111 (1841). The existence of any right in the recipient of letters to publish the same has been strenuously denied by Mr. Drone; but the reasoning upon which his denial rests does not seem satisfactory. Drone on Copyright, pp. 136-139. [47] Townshend on Slander and Libel, 4th ed., § 18; Odgers on Libel and Slander, 2d ed., p. 3. [48] "But as long as gossip was oral, it spread, as regards any one individual, over a very small area, and was confined to the immediate circle of his acquaintances. It did not reach, or but rarely reached, those who knew nothing of him. It did not make his name, or his walk, or his conversation familiar to strangers. And what is more to the purpose, it spared him the pain and mortification of knowing that he was gossipped about. A man seldom heard of oral gossip about him which simply made him ridiculous, or trespassed on his lawful privacy, but made no positive attack upon his reputation. His peace and comfort were, therefore, but slightly affected by it." E. L. Godkin, "The Rights of the Citizen: To his Reputation." Scribner's Magazine, July, 1890, p. 66. Vice-Chancellor Knight Bruce suggested in Prince Albert _v._ Strange, 2 DeGex & Sm. 652, 694, that a distinction would be made as to the right to privacy of works of art between an oral and a written description or catalogue. [49] See Drone on Copyright, pp. 121, 289, 290. [50] Compare the French law. "En prohibant l'envahissement de la vie privée, sans qu'il soit nécessaire d'établir l'intention criminelle, la loi a entendue interdire toute discussion de la part de la défense sur vérité des faits. Le remède eut été pire que le mal, si un débat avait pu s'engager sur ce terrain." Circ. Mins. Just., 4 Juin, 1868. Rivière Code Français et Lois Usuelles, App. Code Penn. 20 n(a). [51] Comp. Drone on Copyright, p. 107. [52] Comp. High on Injunctions, 3d ed., § 1015; Townshend on Libel and Slander, 4th ed., §§ 417a-417d. [53] The following draft of a bill has been prepared by William H. Dunbar, Esq., of the Boston bar, as a suggestion for possible legislation:-- "SECTION 1. Whoever publishes in any newspaper, journal, magazine, or other periodical publication any statement concerning the private life or affairs of another, after being requested in writing by such other person not to publish such statement or any statement concerning him, shall be punished by imprisonment in the State prison not exceeding five years, or by imprisonment in the jail not exceeding two years, or by fine not exceeding one thousand dollars; provided, that no statement concerning the conduct of any person in, or the qualifications of any person for, a public office or position which such person holds, has held, or is seeking to obtain, or for which such person is at the time of such publication a candidate, or for which he or she is then suggested as a candidate, and no statement of or concerning the acts of any person in his or her business, profession, or calling, and no statement concerning any person in relation to a position, profession, business, or calling, bringing such person prominently before the public, or in relation to the qualifications for such a position, business, profession, or calling of any person prominent or seeking prominence before the public, and no statement relating to any act done by any person in a public place, nor any other statement of matter which is of public and general interest, shall be deemed a statement concerning the private life or affairs of such person within the meaning of this act. "SECT. 2. It shall not be a defence to any criminal prosecution brought under section 1 of this act that the statement complained of is true, or that such statement was published without a malicious intention; but no person shall be liable to punishment for any statement published under such circumstances that if it were defamatory the publication thereof would be privileged." 
22910	----	Everyman, I will go with thee, and be thy guide, In thy most need to go by thy side. This is No. 734 of Everyman's Library. A list of authors and their works in this series will be found at the end of this volume. The publishers will be pleased to send freely to all applicants a separate, annotated list of the Library. J. M. DENT & SONS LIMITED 10-13 BEDFORD STREET LONDON W.C.2 E. P. DUTTON & CO. INC. 286-302 FOURTH AVENUE NEW YORK EVERYMAN'S LIBRARY EDITED BY ERNEST RHYS HISTORY ANCIENT LAW BY SIR HENRY JAMES SUMNER MAINE INTRODUCTION BY PROF. J. H. MORGAN SIR HENRY JAMES SUMNER MAINE, the son of a doctor, born 1822 in India. Educated at Christ's Hospital and Pembroke College, Cambridge. In 1847 professor of civil law at Cambridge; 1850, called to the Bar. Member of Indian Council for seven years. Died at Cannes, 1888. ANCIENT LAW [Illustration] SIR HENRY MAINE LONDON: J. M. DENT & SONS LTD. NEW YORK: E. P. DUTTON & CO. INC. _All rights reserved Made in Great Britain at The Temple Press Letchworth and decorated by Eric Ravilious for J. M. Dent & Sons Ltd. Aldine House Bedford St. London First Published in this Edition 1917 Reprinted 1927, 1931, 1936_ INTRODUCTION No one who is interested in the growth of human ideas or the origins of human society can afford to neglect Maine's _Ancient Law_. Published some fifty-six years ago it immediately took rank as a classic, and its epoch-making influence may not unfitly be compared to that exercised by Darwin's _Origin of Species_. The revolution effected by the latter in the study of biology was hardly more remarkable than that effected by Maine's brilliant treatise in the study of early institutions. Well does one of Maine's latest and most learned commentators say of his work that "he did nothing less than create the natural history of law." This is only another way of saying that he demonstrated that our legal conceptions--using that term in its largest sense to include social and political institutions--are as much the product of historical development as biological organisms are the outcome of evolution. This was a new departure, inasmuch as the school of jurists, represented by Bentham and Austin, and of political philosophers, headed by Hobbes, Locke, and their nineteenth-century disciples, had approached the study of law and political society almost entirely from an unhistoric point of view and had substituted dogmatism for historical investigation. They had read history, so far as they troubled to read it at all, "backwards," and had invested early man and early society with conceptions which, as a matter of fact, are themselves historical products. The jurists, for example, had in their analysis of legal sovereignty postulated the commands of a supreme lawgiver by simply ignoring the fact that, in point of time, custom precedes legislation and that early law is, to use Maine's own phrase, "a habit" and not a conscious exercise of the volition of a lawgiver or a legislature. The political philosophers, similarly, had sought the origin of political society in a "state of nature"--humane, according to Locke and Rousseau, barbarous, according to Hobbes--in which men freely subscribed to an "original contract" whereby each submitted to the will of all. It was not difficult to show, as Maine has done, that contract--_i.e._ the recognition of a mutual agreement as binding upon the parties who make it--is a conception which comes very late to the human mind. But Maine's work covers much wider ground than this. It may be summed up by saying that he shows that early society, so far as we have any recognisable legal traces of it, begins with the group, not with the individual. This group was, according to Maine's theory, the Family--that is to say the Family as resting upon the patriarchal power of the father to whom all its members, wife, sons, daughters, and slaves, were absolutely subject. This, the central feature of Maine's speculation, is worked out with infinite suggestiveness and great felicity of style in chapter V. ("Primitive Society and Ancient Law") of the present work, and his chief illustrations are sought in the history of Roman law. The topics of the other chapters are selected largely with a view to supplying confirmation of the theory in question and, as we shall see in a moment, Maine's later works do but serve to carry the train of reasoning a step further by the use of the Comparative Method in invoking evidence from other sources, notably from Irish and Hindu Law. Let us, however, confine ourselves for the moment to "Ancient Law." Maine works out the implications of his theory by showing that it, and it alone, can serve to explain such features of early Roman law as Agnation, _i.e._ the tracing of descent exclusively through males, and Adoption, _i.e._ the preservation of the family against the extinction of male heirs. The perpetual tutelage of women is the consequence of this position. Moreover, all the members of the family, except its head, are in a condition best described as _status_: they have no power to acquire property, or to bequeath it, or to enter into contracts in relation to it. The traces of this state of society are clearly visible in the pages of that classical text-book of Roman Law, the _Institutes_ of Justinian,[1] compiled in the sixth century A.D., though equally visible is the disintegration wrought in it by the reforming activity of the praetor's edicts. That reformation followed the course of a gradual emancipation of the members of the family, except those under age, from the despotic authority of the father. This gradual substitution of the Individual for the Family was effected in a variety of ways, but in none more conspicuously than by the development of the idea of contract, _i.e._ of the capacity of the individual to enter into independent agreements with strangers to his family-group by which he was legally bound--an historical process which Maine sums up in his famous aphorism that the movement of progressive societies has hitherto been a movement from Status to Contract. In the chapters on the early history of Wills, Property, and Contract, Maine supports his theory by showing that it is the key which unlocks many, if not all, of the problems which those topics present. The chapter on Wills--particularly the passage in which he explains what is meant by Universal Succession--is a brilliant example of Maine's analytic power. He shows that a Will--in the sense of a secret and revocable disposition of property only taking effect after the death of the testator--is a conception unknown to early law, and that it makes its first appearance as a means of transmitting the exercise of domestic sovereignty, the transfer of the property being only a subsidiary feature; wills only being permitted, in early times, in cases where there was likely to be a failure of proper heirs. The subsequent popularity of wills, and the indulgence with which the law came to regard them, were due to a desire to correct the rigidity of the Patria Potestas, as reflected in the law of intestate succession, by giving free scope to natural affection. In other words, the conception of relationship as reckoned only through males, and as resting on the continuance of the children within their father's power, gave way, through the instrumentality of the will, to the more modern and more natural conception of relationship. In the chapter on Property Maine again shows that the theory of its origin in occupancy is too individualistic and that not separate ownership but joint ownership is the really archaic institution. The father was in some sense (we must avoid importing modern terms) the trustee of the joint property of the family. Here Maine makes an excursion into the fields of the Early Village Community, and has, too, to look elsewhere than to Rome, where the village community had already been transformed by coalescence into the city-state. He therefore seeks his examples from India and points to the Indian village as an example of the expansion of the family into a larger group of co-proprietors, larger but still bearing traces of its origin to the patriarchal power. And, to quote his own words, "the most important passage in the history of Private Property is its gradual separation from the co-ownership of kinsmen." The chapter on Contract, although it contains some of Maine's most suggestive writing, and the chapter on Delict and Crime, have a less direct bearing on his main thesis except in so far as they go to show that the reason why there is so little in early law of what we call civil, as distinct from criminal, law, and in particular of the Law of Contract, is to be found in the fact that, in the infancy of society, the Law of Persons, and with it the law of civil rights, is merged in the common subjection to Paternal Power. Such, putting it in the simplest possible language, is the main argument of _Ancient Law_. The exigencies of space and of simplicity compel me to pass by, to a large extent, most of the other topics with which Maine deals--the place of custom, code, and fiction in the development of early law, the affiliation of international Law to the _Jus Gentium_ and the Law of Nature, the origins of feudalism and of primogeniture, the early history of delict and crime, and that most remarkable and profound passage in which Maine shows the heavy debt of the various sciences to Roman law and the influence which it has exerted on the vocabulary of political science, the concepts of moral philosophy, and the doctrines of theology. I must confine myself to two questions: how far did Maine develop or modify in his subsequent writings the main thesis of _Ancient Law_? to what extent has this thesis stood the test of the criticism and research of others? As regards the first point, it is to be remembered that _Ancient Law_ is but the first, though doubtless the most important, of a whole series of works by its author on the subject of early law. It was followed at intervals by three volumes: _Village Communities in the East and West_, _Early Institutions_, and _Early Law and_ _Custom_. In the first of these he dealt with a subject which has excited an enormous degree of attention and not a little controversy among English, French, German, and Russian scholars,[2] amounting as it does to nothing less than an investigation into the origin of private property in land. The question has been put in various forms: did it commence with joint (or, as some would put it, less justifiably, communal or corporate) ownership or with individual ownership, and again was the village community free or servile? It is now pretty generally recognised that there was more than one type, though common cultivation was doubtless a feature of them all, and even in India there were at least two types, of which the one presenting several, as opposed to communal, ownership is not the less ancient. But it may well be that, as Maitland so often pointed out, much of the controversy has been literally an anachronism; that is to say, that nineteenth-century men have been asking the Early Ages questions which they could not answer and reading back into early history distinctions which are themselves historical products. Ownership is itself a late abstraction developed out of use. We may say with some certainty that family "ownership" preceded individual ownership, but in what sense there was communal ownership by a whole village it is not so easy to say. Maine was on surer ground when, as in his studies of Irish and Hindu law, he confined himself to the more immediate circle of the family group. In his _Early Institutions_ he subjects the Brehon Laws of early Ireland to a suggestive examination as presenting an example of Celtic law largely unaffected by Roman influences. He there shows, as he has shown in _Ancient Law_, that in early times the only social brotherhood recognised was that of kinship, and that almost every form of social organisation, tribe, guild, and religious fraternity, was conceived of under a similitude of it. Feudalism converted the village community, based on a real or assumed consanguinity of its members, into the fief in which the relations of tenant and lord were those of contract, while those of the unfree tenant rested on status. In his _Early Law and Custom_ he pursues much the same theme by an examination of Hindu Law as presenting a peculiarly close implication of early law with religion. Here he devotes his attention chiefly to Ancestor-worship, a subject which about this time had engaged the attention, as regards its Greek and Roman forms, of that brilliant Frenchman, Fustel de Coulanges, whose monograph _La Cité Antique_ is now a classic. As is well known, the right of inheriting a dead man's property and the duty of performing his obsequies are co-relative to this day in Hindu law, and his investigation of this subject brings Maine back to the subject of the Patriarchal Power. He points out that both worshipper and the object of worship were exclusively males, and concludes that it was the power of the father which generated the practice of worshipping him, while this practice in turn, by the gradual admission of women to participate in the ceremonies, gradually acted as a solvent upon the power itself. The necessity of finding some one to perform these rites, on failure of direct male heirs, marked the beginning of the recognition of a right in women to inherit. The conception of the family becomes less intense and more extensive. These discussions brought Maine, in chapter VII. of _Early Law and Custom_, to reconsider the main theory of _Ancient Law_ in the light of the criticism to which it had been exposed, and every reader of _Ancient Law_ who desires to understand Maine's exact position in regard to the scope of his generalisations should read for himself the chapter in the later work entitled "Theories of Primitive Society." His theory of the patriarchal power had been criticised by two able and industrious anthropologists, M'Lennan and Morgan, who, by their investigation of "survivals" among barbarous tribes in our own day, had arrived at the conclusion that, broadly speaking, the normal process through which society had passed was not patriarchal but "matriarchal," _i.e._ understanding by that term a system in which descent is traced through females. It would take up far too much space to enter into this controversy in detail. It is sufficient to say that the counter-theory rested on the assumption that society originated not in families, based on the authority of the father and relationship through him, but in promiscuous hordes among whom the only certain fact, and, consequently, the only recognised basis of relationship, was maternity. Maine's answer to this was that his generalisations as to the prevalence of the patriarchal power were confined to Indo-European races, and that he did not pretend to dogmatise about other races, also that he was dealing not with all societies but all that had any permanence. He argues that the promiscuous horde, where and when it is found, is to be explained as an abnormal case of retrogression due to a fortuitous scarcity of females resulting in polyandry, and he opposes to the theory of its predominance the potency of sexual jealousy which might serve as only another name for the patriarchal power. On the whole the better opinion is certainly with Maine. His theory, at any rate, alone accords with a view of society so soon as it is seen to possess any degree of civilisation and social cohesion. It will be seen that Maine's work, like that of most great thinkers, presents a singular coherence and intellectual elegance. It is distinguished also by an extraordinary wide range of vision. He lays under contribution with equal felicity and suggestiveness the Old Testament, the Homeric poems, the Latin dramatists, the laws of the Barbarians, the sacerdotal laws of the Hindus, the oracles of the Brehon caste, and the writings of the Roman jurists. In other words, he was a master of the Comparative Method. Few writers have thrown so much light on the development of the human mind in its social relations. We know now--a hundred disciples have followed in Maine's footsteps and applied his teaching--how slow is the growth of the human intellect in these matters, with what painful steps man learns to generalise, how convulsively he clings in the infancy of civilisation to the formal, the material, the realistic aspects of things, how late he develops such abstractions as "the State." In all this Maine first showed the way. As Sir Frederick Pollock has admirably put it-- Nowadays it may be said that "all have got the seed," but this is no justification for forgetting who first cleared and sowed the ground. We may till fields that the master left untouched, and one man will bring a better ox to yoke to the plough, and another a worse; but it is the master's plough still. We may conclude with some remarks on Maine's views of the contemporary problems of political society. Maine was what, for want of a better term, may be called a Conservative, and, indeed, it may be doubted whether, with the single exception of Burke, any English writer has done more to provide English Conservatives with reasons for the faith that is in them. He has set forth his views in a collection of polemical essays under the title of _Popular Government_, which were given to the world in book form in 1885. He viewed the advent of Democracy with more distrust than alarm--he appears to have thought it a form of government which could not last--and he has an unerring eye for its weaknesses.[3] Indeed, his remarks on the facility with which Democracy yields itself to manipulation by wire-pullers, newspapers, and demagogues, have found not a little confirmation in such studies of the actual working of democratic government as M. Ostrogorski's _Democracy and the Organisation of Political Parties_. Maine emphasised the tyranny of majorities, the enslavement of untutored minds by political catchwords, their susceptibility to "suggestion," their readiness to adopt vicarious opinion in preference to an intellectual exercise of their own volition. It is not surprising that the writer who had subjected the theories of the Social Contract to such merciless criticism sighed for a scientific analysis of political terms as the first step to clear thinking about politics. Here he was on strong ground, but for such an analysis we have yet to wait.[4] He seems to have placed his hopes in the adoption of some kind of written constitution which, like the American prototype, would safeguard us from fundamental changes by the caprice of a single assembly. But this is not the place to pursue such highly debateable matters. Enough if we say that the man who wishes to serve an apprenticeship to an intelligent understanding of the political society of the present cannot do better than begin by a careful study of Maine's researches into the political society of the past. J.H. MORGAN. _Note._--The reader who desires to study Maine in the light of modern criticism is recommended to read Sir F. Pollock's "Notes on Maine's _Ancient Law_" (published by John Murray at 2_s._ 6_d._, or, with the text, at 5_s._). The best short study of Maine with which I am acquainted is the article by Professor Vinogradoff in the _Law Quarterly Review_ for April 1904. The field of research covered by Maine in his various writings is so vast that it is impossible to refer the reader, except at great length, to anything like an adequate list of later books on the subjects of his investigation. In addition to the works on the Village Community mentioned in a previous footnote, I may, however, refer the beginner to Mr. Edward Jenks' little book on _The History of Politics_ in Dent's Primers, to Professor Ashley's translation of a fragment of Fustel de Coulanges under the title of _The Origin of Property in Land_, and to Sir Frederick Pollock's brilliant little book, _The Expansion of the Common Law_. The reader is also recommended to study Mr. H.A.L. Fisher's succinct survey of the contributions of Maitland to legal history under the title of _F.W. Maitland; an Appreciation_ (Cambridge University Press). One of the most brilliant and ingenious studies of the origins of European civilisation is to be found in the work of the great German jurist, Ihering, _Die Vorgeschichte der Indo-Europder_, translated into English under the title of _The Early History of the Indo-European Races_ (Sonnenschein, 1897). [1] The reader who desires to pursue the subject by reference to one of Maine's chief authorities is recommended to read the translation of the _Institutes_ by Sandars. [2] English literature on the subject is best studied in Maitland's _Domesday Book and Beyond_, Vinogradoff's _The Growth of the Manor_ and _Villeinage in England_ (with an excellent historical introduction), and Seebohm's _English Village Community_. [3] Witness the characteristic sentence: "On the whole they [_i.e._ the studies of earlier society] suggest that the differences which, after ages of change, separate the civilised man from savage or barbarian, are not so great as the vulgar opinion would have them.... Like the savage, he is a man of party with a newspaper for a totem ... and like a savage he is apt to make of his totem his God." [4] Something of the kind was done many years ago by Sir George Cornewall Lewis in his little book on the _Use and Abuse of Political Terms_. I have attempted to carry the task a step farther in an article which appeared in the form of a review of Lord Morley's "History and Politics" in the _Nineteenth Century_ for March 1913. BIBLIOGRAPHY Navis ornate atque armata in aquam deducitur (Prize Poem), 1842; The Birth of the Prince of Wales (Prize Poem), 1842; Cæsar ad Rubiconem constitit (Prize Poem), 1842; Memoir of H.F. Hallam, 1851; Roman Law and Legal Education (Essay), 1856; Ancient Law: its Connection with the Early History of Society and its Relation to Modern Ideas, 1861; Short Essays and Reviews on the Educational Policy of the Government of India, 1866; Village Communities in the East and West (Lectures), 1871; The Early History of the Property of Married Women as collected from Roman and Hindoo Law (Lecture), 1873; The Effects of Observation of India on Modern European Thought (Lecture), 1875; Lectures on the Early History of Institutions, 1875; Village Communities, etc.; third ed. with other Lectures and Addresses, 1876; Dissertations on Early Law and Custom (selected from Lectures), 1883; Popular Government (four Essays), 1885; India [1837-1887] (in "The Reign of Queen Victoria," ed. by Thos. Humphry Ward, vol. i.), 1887; The Whewell Lectures: International Law, 1887, 1888; Ancient Law (ed. with introduction and notes by Sir Frederick Pollock), 1906; Ancient Law (Allahabad ed., with introduction by K.C. Banerji), 1912. Contributions to: "Morning Chronicle," 1851; "Cornhill Magazine," 1871; "Quarterly Review," 1886; "Saturday Review," and "St. James's Gazette." A brief memoir of the life of Sir Henry Maine, by Sir M.E. Grant Duff; with some of his Indian speeches and minutes, selected by Whitley Stokes, 1892. PREFACE The chief object of the following pages is to indicate some of the earliest ideas of mankind, as they are reflected in Ancient Law, and to point out the relation of those ideas to modern thought. Much of the inquiry attempted could not have been prosecuted with the slightest hope of a useful result if there had not existed a body of law, like that of the Romans, bearing in its earliest portions the traces of the most remote antiquity and supplying from its later rules the staple of the civil institutions by which modern society is even now controlled. The necessity of taking the Roman law as a typical system has compelled the author to draw from it what may appear a disproportionate number of his illustrations; but it has not been his intention to write a treatise on Roman jurisprudence, and he has as much as possible avoided all discussions which might give that appearance to his work. The space allotted in the third and fourth chapters to certain philosophical theories of the Roman Jurisconsults has been appropriated to them for two reasons. In the first place, those theories appear to the author to have had a wider and more permanent influence on the thought and action of the world than is usually supposed. Secondly, they are believed to be the ultimate source of most of the views which have been prevalent, till quite recently, on the subjects treated of in this volume. It was impossible for the author to proceed far with his undertaking without stating his opinion on the origin, meaning, and value of those speculations. H.S.M. LONDON, _January 1861_. CONTENTS CHAP. PAGE I. ANCIENT CODES 1 II. LEGAL FICTIONS 13 III. LAW OF NATURE AND EQUITY 26 IV. THE MODERN HISTORY OF THE LAW OF NATURE 43 V. PRIMITIVE SOCIETY AND ANCIENT LAW 67 VI. THE EARLY HISTORY OF TESTAMENTARY SUCCESSION 101 VII. ANCIENT AND MODERN IDEAS RESPECTING WILLS AND SUCCESSIONS 127 VIII. THE EARLY HISTORY OF PROPERTY 144 IX. THE EARLY HISTORY OF CONTRACT 179 X. THE EARLY HISTORY OF DELICT AND CRIME 216 INDEX 235 CHAPTER I ANCIENT CODES The most celebrated system of jurisprudence known to the world begins, as it ends, with a Code. From the commencement to the close of its history, the expositors of Roman Law consistently employed language which implied that the body of their system rested on the Twelve Decemviral Tables, and therefore on a basis of written law. Except in one particular, no institutions anterior to the Twelve Tables were recognised at Rome. The theoretical descent of Roman jurisprudence from a code, the theoretical ascription of English law to immemorial unwritten tradition, were the chief reasons why the development of their system differed from the development of ours. Neither theory corresponded exactly with the facts, but each produced consequences of the utmost importance. I need hardly say that the publication of the Twelve Tables is not the earliest point at which we can take up the history of law. The ancient Roman code belongs to a class of which almost every civilised nation in the world can show a sample, and which, so far as the Roman and Hellenic worlds were concerned, were largely diffused over them at epochs not widely distant from one another. They appeared under exceedingly similar circumstances, and were produced, to our knowledge, by very similar causes. Unquestionably, many jural phenomena lie behind these codes and preceded them in point of time. Not a few documentary records exist which profess to give us information concerning the early phenomena of law; but, until philology has effected a complete analysis of the Sanskrit literature, our best sources of knowledge are undoubtedly the Greek Homeric poems, considered of course not as a history of actual occurrences, but as a description, not wholly idealised, of a state of society known to the writer. However the fancy of the poet may have exaggerated certain features of the heroic age, the prowess of warriors and the potency of gods, there is no reason to believe that it has tampered with moral or metaphysical conceptions which were not yet the subjects of conscious observation; and in this respect the Homeric literature is far more trustworthy than those relatively later documents which pretend to give an account of times similarly early, but which were compiled under philosophical or theological influences. If by any means we can determine the early forms of jural conceptions, they will be invaluable to us. These rudimentary ideas are to the jurist what the primary crusts of the earth are to the geologist. They contain, potentially, all the forms in which law has subsequently exhibited itself. The haste or the prejudice which has generally refused them all but the most superficial examination, must bear the blame of the unsatisfactory condition in which we find the science of jurisprudence. The inquiries of the jurist are in truth prosecuted much as inquiry in physics and physiology was prosecuted before observation had taken the place of assumption. Theories, plausible and comprehensive, but absolutely unverified, such as the Law of Nature or the Social Compact, enjoy a universal preference over sober research into the primitive history of society and law; and they obscure the truth not only by diverting attention from the only quarter in which it can be found, but by that most real and most important influence which, when once entertained and believed in, they are enabled to exercise on the later stages of jurisprudence. The earliest notions connected with the conception, now so fully developed, of a law or rule of life, are those contained in the Homeric words "Themis" and "Themistes." "Themis," it is well known, appears in the later Greek pantheon as the Goddess of Justice, but this is a modern and much developed idea, and it is in a very different sense that Themis is described in the Iliad as the assessor of Zeus. It is now clearly seen by all trustworthy observers of the primitive condition of mankind that, in the infancy of the race, men could only account for sustained or periodically recurring action by supposing a personal agent. Thus, the wind blowing was a person and of course a divine person; the sun rising, culminating, and setting was a person and a divine person; the earth yielding her increase was a person and divine. As, then, in the physical world, so in the moral. When a king decided a dispute by a sentence, the judgment was assumed to be the result of direct inspiration. The divine agent, suggesting judicial awards to kings or to gods, the greatest of kings, was _Themis_. The peculiarity of the conception is brought out by the use of the plural. _Themistes_, Themises, the plural of _Themis_, are the awards themselves, divinely dictated to the judge. Kings are spoken of as if they had a store of "Themistes" ready to hand for use; but it must be distinctly understood that they are not laws, but judgments. "Zeus, or the human king on earth," says Mr. Grote, in his History of Greece, "is not a lawmaker, but a judge." He is provided with Themistes, but, consistently with the belief in their emanation from above, they cannot be supposed to be connected by any thread of principle; they are separate, isolated judgments. Even in the Homeric poems, we can see that these ideas are transient. Parities of circumstance were probably commoner in the simple mechanism of ancient society than they are now, and in the succession of similar cases awards are likely to follow and resemble each other. Here we have the germ or rudiment of a Custom, a conception posterior to that of Themistes or judgments. However strongly we, with our modern associations, may be inclined to lay down _à priori_ that the notion of a Custom must precede that of a judicial sentence, and that a judgment must affirm a Custom or punish its breach, it seems quite certain that the historical order of the ideas is that in which I have placed them. The Homeric word for a custom in the embryo is sometimes "Themis" in the singular--more often "Dike," the meaning of which visibly fluctuates between a "judgment" and a "custom" or "usage." [Greek: Nomos], a Law, so great and famous a term in the political vocabulary of the later Greek society, does not occur in Homer. This notion of a divine agency, suggesting the Themistes, and itself impersonated in Themis, must be kept apart from other primitive beliefs with which a superficial inquirer might confound it. The conception of the Deity dictating an entire code or body of law, as in the case of the Hindoo laws of Menu, seems to belong to a range of ideas more recent and more advanced. "Themis" and "Themistes" are much less remotely linked with that persuasion which clung so long and so tenaciously to the human mind, of a divine influence underlying and supporting every relation of life, every social institution. In early law, and amid the rudiments of political thought, symptoms of this belief meet us on all sides. A supernatural presidency is supposed to consecrate and keep together all the cardinal institutions of those times, the State, the Race, and the Family. Men, grouped together in the different relations which those institutions imply, are bound to celebrate periodically common rites and to offer common sacrifices; and every now and then the same duty is even more significantly recognised in the purifications and expiations which they perform, and which appear intended to deprecate punishment for involuntary or neglectful disrespect. Everybody acquainted with ordinary classical literature will remember the _sacra gentilicia_, which exercised so important an influence on the early Roman law of adoption and of wills. And to this hour the Hindoo Customary Law, in which some of the most curious features of primitive society are stereotyped, makes almost all the rights of persons and all the rules of succession hinge on the due solemnisation of fixed ceremonies at the dead man's funeral, that is, at every point where a breach occurs in the continuity of the family. Before we quit this stage of jurisprudence, a caution may be usefully given to the English student. Bentham, in his _Fragment on Government_, and Austin, in his _Province of Jurisprudence Determined_, resolve every law into a _command_ of the lawgiver, _an obligation_ imposed thereby on the citizen, and a _sanction_ threatened in the event of disobedience; and it is further predicated of the _command_, which is the first element in a law, that it must prescribe, not a single act, but a series or number of acts of the same class or kind. The results of this separation of ingredients tally exactly with the facts of mature jurisprudence; and, by a little straining of language, they may be made to correspond in form with all law, of all kinds, at all epochs. It is not, however, asserted that the notion of law entertained by the generality is even now quite in conformity with this dissection; and it is curious that, the farther we penetrate into the primitive history of thought, the farther we find ourselves from a conception of law which at all resembles a compound of the elements which Bentham determined. It is certain that, in the infancy of mankind, no sort of legislature, not even a distinct author of law, is contemplated or conceived of. Law has scarcely reached the footing of custom; it is rather a habit. It is, to use a French phrase, "in the air." The only authoritative statement of right and wrong is a judicial sentence after the facts, not one presupposing a law which has been violated, but one which is breathed for the first time by a higher power into the judge's mind at the moment of adjudication. It is of course extremely difficult for us to realise a view so far removed from us in point both of time and of association, but it will become more credible when we dwell more at length on the constitution of ancient society, in which every man, living during the greater part of his life under the patriarchal despotism, was practically controlled in all his actions by a regimen not of law but of caprice. I may add that an Englishman should be better able than a foreigner to appreciate the historical fact that the "Themistes" preceded any conception of law, because, amid the many inconsistent theories which prevail concerning the character of English jurisprudence, the most popular, or at all events the one which most affects practice, is certainly a theory which assumes that adjudged cases and precedents exist antecedently to rules, principles, and distinctions. The "Themistes" have too, it should be remarked, the characteristic which, in the view of Bentham and Austin, distinguishes single or mere commands from laws. A true law enjoins on all the citizens indifferently a number of acts similar in class or kind; and this is exactly the feature of a law which has most deeply impressed itself on the popular mind, causing the term "law" to be applied to mere uniformities, successions, and similitudes. A _command_ prescribes only a single act, and it is to commands, therefore, that "Themistes" are more akin than to laws. They are simply adjudications on insulated states of fact, and do not necessarily follow each other in any orderly sequence. The literature of the heroic age discloses to us law in the germ under the "Themistes" and a little more developed in the conception of "Dike." The next stage which we reach in the history of jurisprudence is strongly marked and surrounded by the utmost interest. Mr. Grote, in the second part and second chapter of his History, has fully described the mode in which society gradually clothed itself with a different character from that delineated by Homer. Heroic kingship depended partly on divinely given prerogative, and partly on the possession of supereminent strength, courage, and wisdom. Gradually, as the impression of the monarch's sacredness became weakened, and feeble members occurred in the series of hereditary kings, the royal power decayed, and at last gave way to the dominion of aristocracies. If language so precise can be used of the revolution, we might say that the office of the king was usurped by that council of chiefs which Homer repeatedly alludes to and depicts. At all events from an epoch of kingly rule we come everywhere in Europe to an era of oligarchies; and even where the name of the monarchical functions does not absolutely disappear, the authority of the king is reduced to a mere shadow. He becomes a mere hereditary general, as in Lacedæmon, a mere functionary, as the King Archon at Athens, or a mere formal hierophant, like the _Rex Sacrificulus_ at Rome. In Greece, Italy, and Asia Minor, the dominant orders seem to have universally consisted of a number of families united by an assumed relationship in blood, and, though they all appear at first to have laid claim to a quasi-sacred character, their strength does not seem to have resided in their pretended sanctity. Unless they were prematurely overthrown by the popular party, they all ultimately approached very closely to what we should now understand by a political aristocracy. The changes which society underwent in the communities of the further Asia occurred of course at periods long anterior in point of time to these revolutions of the Italian and Hellenic worlds; but their relative place in civilisation appears to have been the same, and they seem to have been exceedingly similar in general character. There is some evidence that the races which were subsequently united under the Persian monarchy, and those which peopled the peninsula of India, had all their heroic age and their era of aristocracies; but a military and a religious oligarchy appear to have grown up separately, nor was the authority of the king generally superseded. Contrary, too, to the course of events in the West, the religious element in the East tended to get the better of the military and political. Military and civil aristocracies disappear, annihilated or crushed into insignificance between the kings and the sacerdotal order; and the ultimate result at which we arrive is, a monarch enjoying great power, but circumscribed by the privileges of a caste of priests. With these differences, however, that in the East aristocracies became religious, in the West civil or political, the proposition that a historical era of aristocracies succeeded a historical era of heroic kings may be considered as true, if not of all mankind, at all events of all branches of the Indo-European family of nations. The important point for the jurist is that these aristocracies were universally the depositaries and administrators of law. They seem to have succeeded to the prerogatives of the king, with the important difference, however, that they do not appear to have pretended to direct inspiration for each sentence. The connection of ideas which caused the judgments of the patriarchal chieftain to be attributed to superhuman dictation still shows itself here and there in the claim of a divine origin for the entire body of rules, or for certain parts of it, but the progress of thought no longer permits the solution of particular disputes to be explained by supposing an extra-human interposition. What the juristical oligarchy now claims is to monopolise the _knowledge_ of the laws, to have the exclusive possession of the principles by which quarrels are decided. We have in fact arrived at the epoch of Customary Law. Customs or Observances now exist as a substantive aggregate, and are assumed to be precisely known to the aristocratic order or caste. Our authorities leave us no doubt that the trust lodged with the oligarchy was sometimes abused, but it certainly ought not to be regarded as a mere usurpation or engine of tyranny. Before the invention of writing, and during the infancy of the art, an aristocracy invested with judicial privileges formed the only expedient by which accurate preservation of the customs of the race or tribe could be at all approximated to. Their genuineness was, so far as possible, insured by confiding them to the recollection of a limited portion of the community. The epoch of Customary Law, and of its custody by a privileged order, is a very remarkable one. The condition of the jurisprudence which it implies has left traces which may still be detected in legal and popular phraseology. The law, thus known exclusively to a privileged minority, whether a caste, an aristocracy, a priestly tribe, or a sacerdotal college is true unwritten law. Except this, there is no such thing as unwritten law in the world. English case-law is sometimes spoken of as unwritten, and there are some English theorists who assure us that if a code of English jurisprudence were prepared we should be turning unwritten law into written--a conversion, as they insist, if not of doubtful policy, at all events of the greatest seriousness. Now, it is quite true that there was once a period at which the English common law might reasonably have been termed unwritten. The elder English judges did really pretend to knowledge of rules, principles, and distinctions which were not entirely revealed to the bar and to the lay-public. Whether all the law which they claimed to monopolise was really unwritten, is exceedingly questionable; but at all events, on the assumption that there was once a large mass of civil and criminal rules known exclusively to the judges, it presently ceased to be unwritten law. As soon as the Courts at Westminster Hall began to base their judgments on cases recorded, whether in the year books or elsewhere, the law which they administered became written law. At the present moment a rule of English law has first to be disentangled from the recorded facts of adjudged printed precedents, then thrown into a form of words varying with the taste, precision, and knowledge of the particular judge, and then applied to the circumstances of the case for adjudication. But at no stage of this process has it any characteristic which distinguishes it from written law. It is written case-law, and only different from code-law because it is written in a different way. From the period of Customary Law we come to another sharply defined epoch in the history of jurisprudence. We arrive at the era of Codes, those ancient codes of which the Twelve Tables of Rome were the most famous specimen. In Greece, in Italy, on the Hellenised sea-board of Western Asia, these codes all made their appearance at periods much the same everywhere, not, I mean, at periods identical in point of time, but similar in point of the relative progress of each community. Everywhere, in the countries I have named, laws engraven on tablets and published to the people take the place of usages deposited with the recollection of a privileged oligarchy. It must not for a moment be supposed that the refined considerations now urged in favour of what is called codification had any part or place in the change I have described. The ancient codes were doubtless originally suggested by the discovery and diffusion of the art of writing. It is true that the aristocracies seem to have abused their monopoly of legal knowledge; and at all events their exclusive possession of the law was a formidable impediment to the success of those popular movements which began to be universal in the western world. But, though democratic sentiment may have added to their popularity, the codes were certainly in the main a direct result of the invention of writing. Inscribed tablets were seen to be a better depositary of law, and a better security for its accurate preservation, than the memory of a number of persons however strengthened by habitual exercise. The Roman code belongs to the class of codes I have been describing. Their value did not consist in any approach to symmetrical classifications, or to terseness and clearness of expression, but in their publicity, and in the knowledge which they furnished to everybody, as to what he was to do, and what not to do. It is, indeed, true that the Twelve Tables of Rome do exhibit some traces of systematic arrangement, but this is probably explained by the tradition that the framers of that body of law called in the assistance of Greeks who enjoyed the later Greek experience in the art of law-making. The fragments of the Attic Code of Solon show, however, that it had but little order, and probably the laws of Draco had even less. Quite enough too remains of these collections, both in the East and in the West, to show that they mingled up religious, civil, and merely moral ordinances, without any regard to differences in their essential character; and this is consistent with all we know of early thought from other sources, the severance of law from morality, and of religion from law, belonging very distinctly to the _later_ stages of mental progress. But, whatever to a modern eye are the singularities of these Codes, their importance to ancient societies was unspeakable. The question--and it was one which affected the whole future of each community--was not so much whether there should be a code at all, for the majority of ancient societies seem to have obtained them sooner or later, and, but for the great interruption in the history of jurisprudence created by feudalism, it is likely that all modern law would be distinctly traceable to one or more of these fountain-heads. But the point on which turned the history of the race was, at what period, at what stage of their social progress, they should have their laws put into writing. In the western world the plebeian or popular element in each state successfully assailed the oligarchical monopoly, and a code was nearly universally obtained _early_ in the history of the Commonwealth. But in the East, as I have before mentioned, the ruling aristocracies tended to become religious rather than military or political, and gained, therefore, rather than lost in power; while in some instances the physical conformation of Asiatic countries had the effect of making individual communities larger and more numerous than in the West; and it is a known social law that the larger the space over which a particular set of institutions is diffused, the greater is its tenacity and vitality. From whatever cause, the codes obtained by Eastern societies were obtained, relatively, much later than by Western, and wore a very different character. The religious oligarchies of Asia, either for their own guidance, or for the relief of their memory, or for the instruction of their disciples, seem in all cases to have ultimately embodied their legal learning in a code; but the opportunity of increasing and consolidating their influence was probably too tempting to be resisted. Their complete monopoly of legal knowledge appears to have enabled them to put off on the world collections, not so much of the rules actually observed as of the rules which the priestly order considered proper to be observed. The Hindoo code, called the Laws of Menu, which is certainly a Brahmin compilation, undoubtedly enshrines many genuine observances of the Hindoo race, but the opinion of the best contemporary orientalists is, that it does not, as a whole, represent a set of rules ever actually administered in Hindostan. It is, in great part, an ideal picture of that which, in the view of the Brahmins, _ought_ to be the law. It is consistent with human nature and with the special motives of their authors, that codes like that of Menu should pretend to the highest antiquity and claim to have emanated in their complete form from the Deity. Menu, according to Hindoo mythology, is an emanation from the supreme God; but the compilation which bears his name, though its exact date is not easily discovered, is, in point of the relative progress of Hindoo jurisprudence, a recent production. Among the chief advantages which the Twelve Tables and similar codes conferred on the societies which obtained them, was the protection which they afforded against the frauds of the privileged oligarchy and also against the spontaneous depravation and debasement of the national institutions. The Roman Code was merely an enunciation in words of the existing customs of the Roman people. Relatively to the progress of the Romans in civilisation, it was a remarkably early code, and it was published at a time when Roman society had barely emerged from that intellectual condition in which civil obligation and religious duty are inevitably confounded. Now a barbarous society practising a body of customs, is exposed to some especial dangers which may be absolutely fatal to its progress in civilisation. The usages which a particular community is found to have adopted in its infancy and in its primitive seats are generally those which are on the whole best suited to promote its physical and moral well-being; and, if they are retained in their integrity until new social wants have taught new practices, the upward march of society is almost certain. But unhappily there is a law of development which ever threatens to operate upon unwritten usage. The customs are of course obeyed by multitudes who are incapable of understanding the true ground of their expediency, and who are therefore left inevitably to invent superstitious reasons for their permanence. A process then commences which may be shortly described by saying that usage which is reasonable generates usage which is unreasonable. Analogy, the most valuable of instruments in the maturity of jurisprudence, is the most dangerous of snares in its infancy. Prohibitions and ordinances, originally confined, for good reasons, to a single description of acts, are made to apply to all acts of the same class, because a man menaced with the anger of the gods for doing one thing, feels a natural terror in doing any other thing which is remotely like it. After one kind of food has been interdicted for sanitary reasons, the prohibition is extended to all food resembling it, though the resemblance occasionally depends on analogies the most fanciful. So, again, a wise provision for insuring general cleanliness dictates in time long routines of ceremonial ablution; and that division into classes which at a particular crisis of social history is necessary for the maintenance of the national existence degenerates into the most disastrous and blighting of all human institutions--Caste. The fate of the Hindoo law is, in fact, the measure of the value of the Roman code. Ethnology shows us that the Romans and the Hindoos sprang from the same original stock, and there is indeed a striking resemblance between what appear to have been their original customs. Even now, Hindoo jurisprudence has a substratum of forethought and sound judgment, but irrational imitation has engrafted in it an immense apparatus of cruel absurdities. From these corruptions the Romans were protected by their code. It was compiled while the usage was still wholesome, and a hundred years afterwards it might have been too late. The Hindoo law has been to a great extent embodied in writing, but, ancient as in one sense are the compendia which still exist in Sanskrit, they contain ample evidence that they were drawn up after the mischief had been done. We are not of course entitled to say that if the Twelve Tables had not been published the Romans would have been condemned to a civilisation as feeble and perverted as that of the Hindoos, but thus much at least is certain, that _with_ their code they were exempt from the very chance of so unhappy a destiny. CHAPTER II LEGAL FICTIONS When primitive law has once been embodied in a Code, there is an end to what may be called its spontaneous development. Henceforward the changes effected in it, if effected at all, are effected deliberately and from without. It is impossible to suppose that the customs of any race or tribe remained unaltered during the whole of the long--in some instances the immense--interval between their declaration by a patriarchal monarch and their publication in writing. It would be unsafe too to affirm that no part of the alteration was effected deliberately. But from the little we know of the progress of law during this period, we are justified in assuming that set purpose had the very smallest share in producing change. Such innovations on the earliest usages as disclose themselves appear to have been dictated by feelings and modes of thought which, under our present mental conditions, we are unable to comprehend. A new era begins, however, with the Codes. Wherever, after this epoch, we trace the course of legal modification we are able to attribute it to the conscious desire of improvement, or at all events of compassing objects other than those which were aimed at in the primitive times. It may seem at first sight that no general propositions worth trusting can be elicited from the history of legal systems subsequent to the codes. The field is too vast. We cannot be sure that we have included a sufficient number of phenomena in our observations, or that we accurately understand those which we have observed. But the undertaking will be seen to be more feasible, if we consider that after the epoch of codes the distinction between stationary and progressive societies begins to make itself felt. It is only with the progressive that we are concerned, and nothing is more remarkable than their extreme fewness. In spite of overwhelming evidence, it is most difficult for a citizen of western Europe to bring thoroughly home to himself the truth that the civilisation which surrounds him is a rare exception in the history of the world. The tone of thought common among us, all our hopes, fears, and speculations, would be materially affected, if we had vividly before us the relation of the progressive races to the totality of human life. It is indisputable that much the greatest part of mankind has never shown a particle of desire that its civil institutions should be improved since the moment when external completeness was first given to them by their embodiment in some permanent record. One set of usages has occasionally been violently overthrown and superseded by another; here and there a primitive code, pretending to a supernatural origin, has been greatly extended, and distorted into the most surprising forms, by the perversity of sacerdotal commentators; but, except in a small section of the world, there has been nothing like the gradual amelioration of a legal system. There has been material civilisation, but, instead of the civilisation expanding the law, the law has limited the civilisation. The study of races in their primitive condition affords us some clue to the point at which the development of certain societies has stopped. We can see that Brahminical India has not passed beyond a stage which occurs in the history of all the families of mankind, the stage at which a rule of law is not yet discriminated from a rule of religion. The members of such a society consider that the transgression of a religious ordinance should be punished by civil penalties, and that the violation of a civil duty exposes the delinquent to divine correction. In China this point has been passed, but progress seems to have been there arrested, because the civil laws are coextensive with all the ideas of which the race is capable. The difference between the stationary and progressive societies is, however, one of the great secrets which inquiry has yet to penetrate. Among partial explanations of it I venture to place the considerations urged at the end of the last chapter. It may further be remarked that no one is likely to succeed in the investigation who does not clearly realise that the stationary condition of the human race is the rule, the progressive the exception. And another indispensable condition of success is an accurate knowledge of Roman law in all its principal stages. The Roman jurisprudence has the longest known history of any set of human institutions. The character of all the changes which it underwent is tolerably well ascertained. From its commencement to its close, it was progressively modified for the better, or for what the authors of the modification conceived to be the better, and the course of improvement was continued through periods at which all the rest of human thought and action materially slackened its pace, and repeatedly threatened to settle down into stagnation. I confine myself in what follows to the progressive societies. With respect to them it may be laid down that social necessities and social opinion are always more or less in advance of Law. We may come indefinitely near to the closing of the gap between them, but it has a perpetual tendency to reopen. Law is stable; the societies we are speaking of are progressive. The greater or less happiness of a people depends on the degree of promptitude with which the gulf is narrowed. A general proposition of some value may be advanced with respect to the agencies by which Law is brought into harmony with society. These instrumentalities seem to me to be three in number, Legal Fictions, Equity, and Legislation. Their historical order is that in which I have placed them. Sometimes two of them will be seen operating together, and there are legal systems which have escaped the influence of one or other of them. But I know of no instance in which the order of their appearance has been changed or inverted. The early history of one of them, Equity, is universally obscure, and hence it may be thought by some that certain isolated statutes, reformatory of the civil law, are older than any equitable jurisdiction. My own belief is that remedial Equity is everywhere older than remedial Legislation; but, should this be not strictly true, it would only be necessary to limit the proposition respecting their order of sequence to the periods at which they exercise a sustained and substantial influence in transforming the original law. I employ the word "fiction" in a sense considerably wider than that in which English lawyers are accustomed to use it, and with a meaning much more extensive than that which belonged to the Roman "fictiones." Fictio, in old Roman law, is properly a term of pleading, and signifies a false averment on the part of the plaintiff which the defendant was not allowed to traverse; such, for example, as an averment that the plaintiff was a Roman citizen, when in truth he was a foreigner. The object of these "fictiones" was, of course, to give jurisdiction, and they therefore strongly resembled the allegations in the writs of the English Queen's Bench, and Exchequer, by which those Courts contrived to usurp the jurisdiction of the Common Pleas:--the allegation that the defendant was in custody of the king's marshal, or that the plaintiff was the king's debtor, and could not pay his debt by reason of the defendant's default. But I now employ the expression "Legal Fiction" to signify any assumption which conceals, or affects to conceal, the fact that a rule of law has undergone alteration, its letter remaining unchanged, its operation being modified. The words, therefore, include the instances of fictions which I have cited from the English and Roman law, but they embrace much more, for I should speak both of the English Case-law and of the Roman Responsa Prudentum as resting on fictions. Both these examples will be examined presently. The _fact_ is in both cases that the law has been wholly changed; the _fiction_ is that it remains what it always was. It is not difficult to understand why fictions in all their forms are particularly congenial to the infancy of society. They satisfy the desire for improvement, which is not quite wanting, at the same time that they do not offend the superstitious disrelish for change which is always present. At a particular stage of social progress they are invaluable expedients for overcoming the rigidity of law, and, indeed, without one of them, the Fiction of Adoption which permits the family tie to be artificially created, it is difficult to understand how society would ever have escaped from its swaddling clothes, and taken its first steps towards civilisation. We must, therefore, not suffer ourselves to be affected by the ridicule which Bentham pours on legal fictions wherever he meets them. To revile them as merely fraudulent is to betray ignorance of their peculiar office in the historical development of law. But at the same time it would be equally foolish to agree with those theorists, who, discerning that fictions have had their uses, argue that they ought to be stereotyped in our system. They have had their day, but it has long since gone by. It is unworthy of us to effect an admittedly beneficial object by so rude a device as a legal fiction. I cannot admit any anomaly to be innocent, which makes the law either more difficult to understand or harder to arrange in harmonious order. Now legal fictions are the greatest of obstacles to symmetrical classification. The rule of law remains sticking in the system, but it is a mere shell. It has been long ago undermined, and a new rule hides itself under its cover. Hence there is at once a difficulty in knowing whether the rule which is actually operative should be classed in its true or in its apparent place, and minds of different casts will differ as to the branch of the alternative which ought to be selected. If the English law is ever to assume an orderly distribution, it will be necessary to prune away the legal fictions which, in spite of some recent legislative improvements, are still abundant in it. The next instrumentality by which the adaptation of law to social wants is carried on I call Equity, meaning by that word any body of rules existing by the side of the original civil law, founded on distinct principles and claiming incidentally to supersede the civil law in virtue of a superior sanctity inherent in those principles. The Equity whether of the Roman Prætors or of the English Chancellors, differs from the Fictions which in each case preceded it, in that the interference with law is open and avowed. On the other hand, it differs from Legislation, the agent of legal improvement which comes after it, in that its claim to authority is grounded, not on the prerogative of any external person or body, not even on that of the magistrate who enunciates it, but on the special nature of its principles, to which it is alleged that all law ought to conform. The very conception of a set of principles, invested with a higher sacredness than those of the original law and demanding application independently of the consent of any external body, belongs to a much more advanced stage of thought than that to which legal fictions originally suggested themselves. Legislation, the enactments of a legislature which, whether it take the form of an autocratic prince or of a parliamentary assembly, is the assumed organ of the entire society, is the last of the ameliorating instrumentalities. It differs from Legal Fictions just as Equity differs from them, and it is also distinguished from Equity, as deriving its authority from an external body or person. Its obligatory force is independent of its principles. The legislature, whatever be the actual restraints imposed on it by public opinion, is in theory empowered to impose what obligations it pleases on the members of the community. There is nothing to prevent its legislating in the wantonness of caprice. Legislation may be dictated by equity, if that last word be used to indicate some standard of right and wrong to which its enactments happen to be adjusted; but then these enactments are indebted for their binding force to the authority of the legislature and not to that of the principles on which the legislature acted; and thus they differ from rules of Equity, in the technical sense of the word, which pretend to a paramount sacredness entitling them at once to the recognition of the courts even without the concurrence of prince or parliamentary assembly. It is the more necessary to note these differences, because a student of Bentham would be apt to confound Fictions, Equity, and Statute law under the single head of legislation. They all, he would say, involve _law-making_; they differ only in respect of the machinery by which the new law is produced. That is perfectly true, and we must never forget it; but it furnishes no reason why we should deprive ourselves of so convenient a term as Legislation in the special sense. Legislation and Equity are disjoined in the popular mind and in the minds of most lawyers; and it will never do to neglect the distinction between them, however conventional, when important practical consequences follow from it. It would be easy to select from almost any regularly developed body of rules examples of _legal fictions_, which at once betray their true character to the modern observer. In the two instances which I proceed to consider, the nature of the expedient employed is not so readily detected. The first authors of these fictions did not perhaps intend to innovate, certainly did not wish to be suspected of innovating. There are, moreover, and always have been, persons who refuse to see any fiction in the process, and conventional language bears out their refusal. No examples, therefore, can be better calculated to illustrate the wide diffusion of legal fictions, and the efficiency with which they perform their two-fold office of transforming a system of laws and of concealing the transformation. We in England are well accustomed to the extension, modification, and improvement of law by a machinery which, in theory, is incapable of altering one jot or one line of existing jurisprudence. The process by which this virtual legislation is effected is not so much insensible as unacknowledged. With respect to that great portion of our legal system which is enshrined in cases and recorded in law reports, we habitually employ a double language and entertain, as it would appear, a double and inconsistent set of ideas. When a group of facts come before an English Court for adjudication, the whole course of the discussion between the judge and the advocate assumes that no question is, or can be, raised which will call for the application of any principles but old ones, or any distinctions but such as have long since been allowed. It is taken absolutely for granted that there is somewhere a rule of known law which will cover the facts of the dispute now litigated, and that, if such a rule be not discovered, it is only that the necessary patience, knowledge, or acumen is not forthcoming to detect it. Yet the moment the judgment has been rendered and reported, we slide unconsciously or unavowedly into a new language and a new train of thought. We now admit that the new decision _has_ modified the law. The rules applicable have, to use the very inaccurate expression sometimes employed, become more elastic. In fact they have been changed. A clear addition has been made to the precedents, and the canon of law elicited by comparing the precedents is not the same with that which would have been obtained if the series of cases had been curtailed by a single example. The fact that the old rule has been repealed, and that a new one has replaced it, eludes us, because we are not in the habit of throwing into precise language the legal formulas which we derive from the precedents, so that a change in their tenor is not easily detected unless it is violent and glaring. I shall not now pause to consider at length the causes which have led English lawyers to acquiesce in these curious anomalies. Probably it will be found that originally it was the received doctrine that somewhere, _in nubibus_ or _in gremio magistratuum_, there existed a complete, coherent, symmetrical body of English law, of an amplitude sufficient to furnish principles which would apply to any conceivable combination of circumstances. The theory was at first much more thoroughly believed in than it is now, and indeed it may have had a better foundation. The judges of the thirteenth century may have really had at their command a mine of law unrevealed to the bar and to the lay-public, for there is some reason for suspecting that in secret they borrowed freely, though not always wisely, from current compendia of the Roman and Canon laws. But that storehouse was closed so soon as the points decided at Westminster Hall became numerous enough to supply a basis for a substantive system of jurisprudence; and now for centuries English practitioners have so expressed themselves as to convey the paradoxical proposition that, except by Equity and Statute law, nothing has been added to the basis since it was first constituted. We do not admit that our tribunals legislate; we imply that they have never legislated; and yet we maintain that the rules of the English common law, with some assistance from the Court of Chancery and from Parliament, are coextensive with the complicated interests of modern society. A body of law bearing a very close and very instructive resemblance to our case-law in those particulars which I have noticed, was known to the Romans under the name of the Responsa Prudentum, the "answers of the learned in the law." The form of these Responses varied a good deal at different periods of the Roman jurisprudence, but throughout its whole course they consisted of explanatory glosses on authoritative written documents, and at first they were exclusively collections of opinions interpretative of the Twelve Tables. As with us, all legal language adjusted itself to the assumption that the text of the old Code remained unchanged. There was the express rule. It overrode all glosses and comments, and no one openly admitted that any interpretation of it, however eminent the interpreter, was safe from revision on appeal to the venerable texts. Yet in point of fact, Books of Responses bearing the names of leading jurisconsults obtained an authority at least equal to that of our reported cases, and constantly modified, extended, limited or practically overruled the provisions of the Decemviral law. The authors of the new jurisprudence during the whole progress of its formation professed the most sedulous respect for the letter of the Code. They were merely explaining it, deciphering it, bringing out its full meaning; but then, in the result, by piecing texts together, by adjusting the law to states of fact which actually presented themselves and by speculating on its possible application to others which might occur, by introducing principles of interpretation derived from the exegesis of other written documents which fell under their observation, they educed a vast variety of canons which had never been dreamed of by the compilers of the Twelve Tables and which were in truth rarely or never to be found there. All these treatises of the jurisconsults claimed respect on the ground of their assumed conformity with the Code, but their comparative authority depended on the reputation of the particular jurisconsults who gave them to the world. Any name of universally acknowledged greatness clothed a Book of Responses with a binding force hardly less than that which belonged to enactments of the legislature; and such a book in its turn constituted a new foundation on which a further body of jurisprudence might rest. The Responses of the early lawyers were not however published, in the modern sense, by their author. They were recorded and edited by his pupils, and were not therefore in all probability arranged according to any scheme of classification. The part of the students in these publications must be carefully noted, because the service they rendered to their teacher seems to have been generally repaid by his sedulous attention to the pupils' education. The educational treatises called Institutes or Commentaries, which are a later fruit of the duty then recognised, are among the most remarkable features of the Roman system. It was apparently in these Institutional works, and not in the books intended for trained lawyers, that the jurisconsults gave to the public their classifications and their proposals for modifying and improving the technical phraseology. In comparing the Roman Responsa Prudentum with their nearest English counterpart, it must be carefully borne in mind that the authority by which this part of the Roman jurisprudence was expounded was not the _bench_, but the _bar_. The decision of a Roman tribunal, though conclusive in the particular case, had no ulterior authority except such as was given by the professional repute of the magistrate who happened to be in office for the time. Properly speaking, there was no institution at Rome during the republic analogous to the English Bench, the Chambers of Imperial Germany, or the Parliaments of Monarchical France. There were magistrates indeed, invested with momentous judicial functions in their several departments, but the tenure of the magistracies was but for a single year, so that they are much less aptly compared to a permanent judicature than to a cycle of offices briskly circulating among the leaders of the bar. Much might be said on the origin of a condition of things which looks to us like a startling anomaly, but which was in fact much more congenial than our own system to the spirit of ancient societies, tending, as they always did, to split into distinct orders which, however exclusive themselves, tolerated no professional hierarchy above them. It is remarkable that this system did not produce certain effects which might on the whole have been expected from it. It did not, for example, _popularise_ the Roman law--it did not, as in some of the Greek republics, lessen the effort of intellect required for the mastery of the science, although its diffusion and authoritative exposition were opposed by no artificial barriers. On the contrary, if it had not been for the operation of a separate set of causes, there were strong probabilities that the Roman jurisprudence would have become as minute, technical, and difficult as any system which has since prevailed. Again, a consequence which might still more naturally have been looked for, does not appear at any time to have exhibited itself. The jurisconsults, until the liberties of Rome were overthrown, formed a class which was quite undefined and must have fluctuated greatly in numbers; nevertheless, there does not seem to have existed a doubt as to the particular individuals whose opinion, in their generation, was conclusive on the cases submitted to them. The vivid pictures of a leading jurisconsult's daily practice which abound in Latin literature--the clients from the country flocking to his antechamber in the early morning, and the students standing round with their note-books to record the great lawyer's replies--are seldom or never identified at any given period with more than one or two conspicuous names. Owing too to the direct contact of the client and the advocate, the Roman people itself seems to have been always alive to the rise and fall of professional reputation, and there is abundance of proof, more particularly in the well-known oration of Cicero, _Pro Muræna_, that the reverence of the commons for forensic success was apt to be excessive rather than deficient. We cannot doubt that the peculiarities which have been noted in the instrumentality by which the development of the Roman law was first effected, were the source of its characteristic excellence, its early wealth in principles. The growth and exuberance of principle was fostered, in part, by the competition among the expositors of the law, an influence wholly unknown where there exists a Bench, the depositaries intrusted by king or commonwealth with the prerogative of justice. But the chief agency, no doubt, was the uncontrolled multiplication of cases for legal decision. The state of facts which caused genuine perplexity to a country client was not a whit more entitled to form the basis of the jurisconsult's Response, or legal decision, than a set of hypothetical circumstances propounded by an ingenious pupil. All combinations of fact were on precisely the same footing, whether they were real or imaginary. It was nothing to the jurisconsult that his opinion was overruled for the moment by the magistrate who adjudicated on his client's case, unless that magistrate happened to rank above him in legal knowledge or the esteem of his profession. I do not, indeed, mean it to be inferred that he would wholly omit to consider his client's advantage, for the client was in earlier times the great lawyer's constituent and at a later period his paymaster, but the main road to the rewards of ambition lay through the good opinion of his order, and it is obvious that under such a system as I have been describing this was much more likely to be secured by viewing each case as an illustration of a great principle, or an exemplification of a broad rule, than by merely shaping it for an insulated forensic triumph. A still more powerful influence must have been exercised by the want of any distinct check on the suggestion or invention of possible questions. Where the data can be multiplied at pleasure, the facilities for evolving a general rule are immensely increased. As the law is administered among ourselves, the judge cannot travel out of the sets of facts exhibited before him or before his predecessors. Accordingly each group of circumstances which is adjudicated upon receives, to employ a Gallicism, a sort of consecration. It acquires certain qualities which distinguish it from every other case genuine or hypothetical. But at Rome, as I have attempted to explain, there was nothing resembling a Bench or Chamber of judges; and therefore no combination of facts possessed any particular value more than another. When a difficulty came for opinion before the jurisconsult, there was nothing to prevent a person endowed with a nice perception of analogy from at once proceeding to adduce and consider an entire class of supposed questions with which a particular feature connected it. Whatever were the practical advice given to the client, the _responsum_ treasured up in the note-books of listening pupils would doubtless contemplate the circumstances as governed by a great principle, or included in a sweeping rule. Nothing like this has ever been possible among ourselves, and it should be acknowledged that in many criticisms passed on the English law the manner in which it has been enunciated seems to have been lost sight of. The hesitation of our courts in declaring principles may be much more reasonably attributed to the comparative scantiness of our precedents, voluminous as they appear to him who is acquainted with no other system, than to the temper of our judges. It is true that in the wealth of legal principle we are considerably poorer than several modern European nations, But they, it must be remembered, took the Roman jurisprudence for the foundation of their civil institutions. They built the _débris_ of the Roman law into their walls; but in the materials, and workmanship of the residue there is not much which distinguishes it favourably from the structure erected by the English judicature. The period of Roman freedom was the period during which the stamp of a distinctive character was impressed on the Roman jurisprudence; and through all the earlier part of it, it was by the Responses of the jurisconsults that the development of the law was mainly carried on. But as we approach the fall of the republic there are signs that the Responses are assuming a form which must have been fatal to their farther expansion. They are becoming systematised and reduced into compendia. Q. Mucius Scævola, the Pontifex, is said to have published a manual of the entire Civil Law, and there are traces in the writings of Cicero of growing disrelish for the old methods, as compared with the more active instruments of legal innovation. Other agencies had in fact by this time been brought to bear on the law. The Edict, or annual proclamation of the Prætor, had risen into credit as the principal engine of law reform, and L. Cornelius Sylla, by causing to be enacted the great group of statutes called the _Leges Corneliæ_, had shown what rapid and speedy improvements can be effected by direct legislation. The final blow to the Responses was dealt by Augustus, who limited to a few leading jurisconsults the right of giving binding opinions on cases submitted to them, a change which, though it brings us nearer the ideas of the modern world, must obviously have altered fundamentally the characteristics of the legal profession and the nature of its influence on Roman law. At a later period another school of jurisconsults arose, the great lights of jurisprudence for all time. But Ulpian and Paulus, Gaius and Papinian, were not authors of Responses. Their works were regular treatises on particular departments of the law, more especially on the Prætor's Edict. The _Equity_ of the Romans and the Prætorian Edict by which it was worked into their system, will be considered in the next chapter. Of the Statute Law it is only necessary to say that it was scanty during the republic, but became very voluminous under the empire. In the youth and infancy of a nation it is a rare thing for the legislature to be called into action for the general reform of private law. The cry of the people is not for change in the laws, which are usually valued above their real worth, but solely for their pure, complete, and easy administration; and recourse to the legislative body is generally directed to the removal of some great abuse, or the decision of some incurable quarrel between classes and dynasties. There seems in the minds of the Romans to have been some association between the enactment of a large body of statutes and the settlement of society after a great civil commotion. Sylla signalised his reconstitution of the republic by the Leges Corneliæ; Julius Cæsar contemplated vast additions to the Statute Law; Augustus caused to be passed the all-important group of Leges Juliæ; and among later emperors the most active promulgators of constitutions are princes who, like Constantine, have the concerns of the world to readjust. The true period of Roman Statute Law does not begin till the establishment of the empire. The enactments of the emperors, clothed at first in the pretence of popular sanction, but afterwards emanating undisguisedly from the imperial prerogative, extend in increasing massiveness from the consolidation of Augustus's power to the publication of the Code of Justinian. It will be seen that even in the reign of the second emperor a considerable approximation is made to that condition of the law and that mode of administering it with which we are all familiar. A statute law and a limited board of expositors have risen into being; a permanent court of appeal and a collection of approved commentaries will very shortly be added; and thus we are brought close on the ideas of our own day. CHAPTER III LAW OF NATURE AND EQUITY The theory of a set of legal principles, entitled by their intrinsic superiority to supersede the older law, very early obtained currency both in the Roman state and in England. Such a body of principles, existing in any system, has in the foregoing chapters been denominated Equity, a term which, as will presently be seen, was one (though only one) of the designations by which this agent of legal change was known to the Roman jurisconsults. The jurisprudence of the Court of Chancery, which bears the name of Equity in England, could only be adequately discussed in a separate treatise. It is extremely complex in its texture and derives its materials from several heterogeneous sources. The early ecclesiastical chancellors contributed to it, from the Canon Law, many of the principles which lie deepest in its structure. The Roman law, more fertile than the Canon Law in rules applicable to secular disputes, was not seldom resorted to by a later generation of Chancery judges, amid whose recorded dicta we often find entire texts from the _Corpus Juris Civilis_ imbedded, with their terms unaltered, though their origin is never acknowledged. Still more recently, and particularly at the middle and during the latter half of the eighteenth century, the mixed systems of jurisprudence and morals constructed by the publicists of the Low Countries appear to have been much studied by English lawyers, and from the chancellorship of Lord Talbot to the commencement of Lord Eldon's chancellorship these works had considerable effect on the rulings of the Court of Chancery. The system, which obtained its ingredients from these various quarters, was greatly controlled in its growth by the necessity imposed on it of conforming itself to the analogies of the common law, but it has always answered the description of a body of comparatively novel legal principles claiming to override the older jurisprudence of the country on the strength of an intrinsic ethical superiority. The Equity of Rome was a much simpler structure, and its development from its first appearance can be much more easily traced. Both its character and its history deserve attentive examination. It is the root of several conceptions which have exercised profound influence on human thought, and through human thought have seriously affected the destinies of mankind. The Romans described their legal system as consisting of two ingredients. "All nations," says the Institutional Treatise published under the authority of the Emperor Justinian, "who are ruled by laws and customs, are governed partly by their own particular laws, and partly by those laws which are common to all mankind. The law which a people enacts is called the Civil Law of that people, but that which natural reason appoints for all mankind is called the Law of Nations, because all nations use it." The part of the law "which natural reason appoints for all mankind" was the element which the Edict of the Prætor was supposed to have worked into Roman jurisprudence. Elsewhere it is styled more simply Jus Naturale, or the Law of Nature; and its ordinances are said to be dictated by Natural Equity (_naturalis æquitas_) as well as by natural reason. I shall attempt to discover the origin of these famous phrases, Law of Nations, Law of Nature, Equity, and to determine how the conceptions which they indicate are related to one another. The most superficial student of Roman history must be struck by the extraordinary degree in which the fortunes of the republic were affected by the presence of foreigners, under different names, on her soil. The causes of this immigration are discernible enough at a later period, for we can readily understand why men of all races should flock to the mistress of the world; but the same phenomenon of a large population of foreigners and denizens meets us in the very earliest records of the Roman State. No doubt, the instability of society in ancient Italy, composed as it was in great measure of robber tribes, gave men considerable inducement to locate themselves in the territory of any community strong enough to protect itself and them from external attack, even though protection should be purchased at the cost of heavy taxation, political disfranchisement, and much social humiliation. It is probable, however, that this explanation is imperfect, and that it could only be completed by taking into account those active commercial relations which, though they are little reflected in the military traditions of the republic, Rome appears certainly to have had with Carthage and with the interior of Italy in pre-historic times. Whatever were the circumstances to which it was attributable, the foreign element in the commonwealth determined the whole course of its history, which, at all its stages, is little more than a narrative of conflicts between a stubborn nationality and an alien population. Nothing like this has been seen in modern times; on the one hand, because modern European communities have seldom or never received any accession of foreign immigrants which was large enough to make itself felt by the bulk of the native citizens, and on the other, because modern states, being held together by allegiance to a king or political superior, absorb considerable bodies of immigrant settlers with a quickness unknown to the ancient world, where the original citizens of a commonwealth always believed themselves to be united by kinship in blood, and resented a claim to equality of privilege as a usurpation of their birthright. In the early Roman republic the principle of the absolute exclusion of foreigners pervaded the Civil Law no less than the Constitution. The alien or denizen could have no share in any institution supposed to be coeval with the State. He could not have the benefit of Quiritarian law. He could not be a party to the _nexum_ which was at once the conveyance and the contract of the primitive Romans. He could not sue by the Sacramental Action, a mode of litigation of which the origin mounts up to the very infancy of civilisation. Still, neither the interest nor the security of Rome permitted him to be quite outlawed. All ancient communities ran the risk of being overthrown by a very slight disturbance of equilibrium, and the mere instinct of self-preservation would force the Romans to devise some method of adjusting the rights and duties of foreigners, who might otherwise--and this was a danger of real importance in the ancient world--have decided their controversies by armed strife. Moreover, at no period of Roman history was foreign trade entirely neglected. It was therefore probably half as a measure of police and half in furtherance of commerce that jurisdiction was first assumed in disputes to which the parties were either foreigners or a native and a foreigner. The assumption of such a jurisdiction brought with it the immediate necessity of discovering some principles on which the questions to be adjudicated upon could be settled, and the principles applied to this object by the Roman lawyers were eminently characteristic of the time. They refused, as I have said before, to decide the new cases by pure Roman Civil Law. They refused, no doubt because it seemed to involve some kind of degradation, to apply the law of the particular State from which the foreign litigant came. The expedient to which they resorted was that of selecting the rules of law common to Rome and to the different Italian communities in which the immigrants were born. In other words, they set themselves to form a system answering to the primitive and literal meaning of Jus Gentium, that is, Law common to all Nations. Jus Gentium was, in fact, the sum of the common ingredients in the customs of the old Italian tribes, for they were _all the nations_ whom the Romans had the means of observing, and who sent successive swarms of immigrants to Roman soil. Whenever a particular usage was seen to be practised by a large number of separate races in common it was set down as part of the Law common to all Nations, or Jus Gentium. Thus, although the conveyance of property was certainly accompanied by very different forms in the different commonwealths surrounding Rome, the actual transfer, tradition, or delivery of the article intended to be conveyed was a part of the ceremonial in all of them. It was, for instance, a part, though a subordinate part, in the Mancipation or conveyance peculiar to Rome. Tradition, therefore, being in all probability the only common ingredient in the modes of conveyance which the jurisconsults had the means of observing, was set down as an institution Juris Gentium, or rule of the Law common to all Nations. A vast number of other observances were scrutinised with the same result. Some common characteristic was discovered in all of them, which had a common object, and this characteristic was classed in the Jus Gentium. The Jus Gentium was accordingly a collection of rules and principles, determined by observation to be common to the institutions which prevailed among the various Italian tribes. The circumstances of the origin of the Jus Gentium are probably a sufficient safeguard against the mistake of supposing that the Roman lawyers had any special respect for it. It was the fruit in part of their disdain for all foreign law, and in part of their disinclination to give the foreigner the advantage of their own indigenous Jus Civile. It is true that we, at the present day, should probably take a very different view of the Jus Gentium, if we were performing the operation which was effected by the Roman jurisconsults. We should attach some vague superiority or precedence to the element which we had thus discerned underlying and pervading so great a variety of usage. We should have a sort of respect for rules and principles so universal. Perhaps we should speak of the common ingredient as being of the essence of the transaction into which it entered, and should stigmatise the remaining apparatus of ceremony, which varied in different communities, as adventitious and accidental. Or it may be, we should infer that the races which we were comparing had once obeyed a great system of common institutions of which the Jus Gentium was the reproduction, and that the complicated usages of separate commonwealths were only corruptions and depravations of the simpler ordinances which had once regulated their primitive state. But the results to which modern ideas conduct the observer are, as nearly as possible, the reverse of those which were instinctively brought home to the primitive Roman. What we respect or admire, he disliked or regarded with jealous dread. The parts of jurisprudence which he looked upon with affection were exactly those which a modern theorist leaves out of consideration as accidental and transitory; the solemn gestures of the mancipation; the nicely adjusted questions and answers of the verbal contract; the endless formalities of pleading and procedure. The Jus Gentium was merely a system forced on his attention by a political necessity. He loved it as little as he loved the foreigners from whose institutions it was derived and for whose benefit it was intended. A complete revolution in his ideas was required before it could challenge his respect, but so complete was it when it did occur, that the true reason why our modern estimate of the Jus Gentium differs from that which has just been described, is that both modern jurisprudence and modern philosophy have inherited the matured views of the later jurisconsults on this subject. There did come a time, when from an ignoble appendage of the Jus Civile, the Jus Gentium came to be considered a great though as yet imperfectly developed model to which all law ought as far as possible to conform. This crisis arrived when the Greek theory of a Law of Nature was applied to the practical Roman administration of the Law common to all Nations. The Jus Naturale, or Law of Nature, is simply the Jus Gentium or Law of Nations seen in the light of a peculiar theory. An unfortunate attempt to discriminate them was made by the jurisconsult Ulpian, with the propensity to distinguish characteristic of a lawyer, but the language of Gaius, a much higher authority, and the passage quoted before from the Institutes leave no room for doubt, that the expressions were practically convertible. The difference between them was entirely historical, and no distinction in essence could ever be established between them. It is almost unnecessary to add that the confusion between Jus Gentium, or Law common to all Nations, and _international law_ is entirely modern. The classical expression for international law is Jus Feciale or the law of negotiation and diplomacy. It is, however, unquestionable that indistinct impressions as to the meaning of Jus Gentium had considerable share in producing the modern theory that the relations of independent states are governed by the Law of Nature. It becomes necessary to investigate the Greek conceptions of nature and her law. The word [Greek: physis], which was rendered in the Latin _natura_ and our _nature_, denoted beyond all doubt originally the material universe, but it was the material universe contemplated under an aspect which--such is our intellectual distance from those times--it is not very easy to delineate in modern language. Nature signified the physical world regarded as the result of some primordial element or law. The oldest Greek philosophers had been accustomed to explain the fabric of creation as the manifestation of some single principle which they variously asserted to be movement, force, fire, moisture, or generation. In its simplest and most ancient sense, Nature is precisely the physical universe looked upon in this way as the manifestation of a principle. Afterwards, the later Greek sects, returning to a path from which the greatest intellects of Greece had meanwhile strayed, added the _moral_ to the _physical_ world in the conception of Nature. They extended the term till it embraced not merely the visible creation, but the thoughts, observances, and aspirations of mankind. Still, as before, it was not solely the moral phenomena of human society which they understood by _Nature_, but these phenomena considered as resolvable into some general and simple laws. Now, just as the oldest Greek theorists supposed that the sports of chance had changed the material universe from its simple primitive form into its present heterogeneous condition, so their intellectual descendants imagined that but for untoward accident the human race would have conformed itself to simpler rules of conduct and a less tempestuous life. To live according to _nature_ came to be considered as the end for which man was created, and which the best men were bound to compass. To live according to _nature_ was to rise above the disorderly habits and gross indulgences of the vulgar to higher laws of action which nothing but self-denial and self-command would enable the aspirant to observe. It is notorious that this proposition--live according to nature--was the sum of the tenets of the famous Stoic philosophy. Now on the subjugation of Greece that philosophy made instantaneous progress in Roman society. It possessed natural fascinations for the powerful class who, in theory at least, adhered to the simple habits of the ancient Italian race, and disdained to surrender themselves to the innovations of foreign fashions. Such persons began immediately to affect the Stoic precepts of life according to nature--an affectation all the more grateful, and, I may add, all the more noble, from its contrast with the unbounded profligacy which was being diffused through the imperial city by the pillage of the world and by the example of its most luxurious races. In the front of the disciples of the new Greek school, we might be sure, even if we did not know it historically, that the Roman lawyers figured. We have abundant proof that, there being substantially but two professions in the Roman republic, the military men were generally identified with the party of movement, but the lawyers were universally at the head of the party of resistance. The alliance of the lawyers with the Stoic philosophers lasted through many centuries. Some of the earliest names in the series of renowned jurisconsults are associated with Stoicism, and ultimately we have the golden age of Roman jurisprudence fixed by general consent at the era of the Antonine Cæsars, the most famous disciples to whom that philosophy has given a rule of life. The long diffusion of these doctrines among the members of a particular profession was sure to affect the art which they practised and influenced. Several positions which we find in the remains of the Roman jurisconsults are scarcely intelligible, unless we use the Stoic tenets as our key; but at the same time it is a serious, though a very common, error to measure the influence of Stoicism on Roman law by counting up the number of legal rules which can be confidently affiliated on Stoical dogmas. It has often been observed that the strength of Stoicism resided not in its canons of conduct, which were often repulsive or ridiculous, but in the great though vague principle which it inculcated of resistance to passion. Just in the same way the influence on jurisprudence of the Greek theories, which had their most distinct expression in Stoicism, consisted not in the number of specific positions which they contributed to Roman law, but in the single fundamental assumption which they lent to it. After nature had become a household word in the mouths of the Romans, the belief gradually prevailed among the Roman lawyers that the old Jus Gentium was in fact the lost code of Nature, and that the Prætor in framing an Edictal jurisprudence on the principles of the Jus Gentium was gradually restoring a type from which law had only departed to deteriorate. The inference from this belief was immediate, that it was the Prætor's duty to supersede the Civil Law as much as possible by the Edict, to revive as far as might be the institutions by which Nature had governed man in the primitive state. Of course, there were many impediments to the amelioration of law by this agency. There may have been prejudices to overcome even in the legal profession itself, and Roman habits were far too tenacious to give way at once to mere philosophical theory. The indirect methods by which the Edict combated certain technical anomalies, show the caution which its authors were compelled to observe, and down to the very days of Justinian there was some part of the old law which had obstinately resisted its influence. But, on the whole, the progress of the Romans in legal improvement was astonishingly rapid as soon as stimulus was applied to it by the theory of Natural Law. The ideas of simplification and generalisation had always been associated with the conception of Nature; simplicity, symmetry, and intelligibility came therefore to be regarded as the characteristics of a good legal system, and the taste for involved language, multiplied ceremonials, and useless difficulties disappeared altogether. The strong will, and unusual opportunities of Justinian were needed to bring the Roman law to its existing shape, but the ground plan of the system had been sketched long before the imperial reforms were effected. What was the exact point of contact between the old Jus Gentium and the Law of Nature? I think that they touch and blend through Æquitas, or Equity in its original sense; and here we seem to come to the first appearance in jurisprudence of this famous term, Equity. In examining an expression which has so remote an origin and so long a history as this, it is always safest to penetrate, if possible, to the simple metaphor or figure which at first shadowed forth the conception. It has generally been supposed that Æquitas is the equivalent of the Greek [Greek: isotês], _i.e._ the principle of equal or proportionate distribution. The equal division of numbers or physical magnitudes is doubtless closely entwined with our perceptions of justice; there are few associations which keep their ground in the mind so stubbornly or are dismissed from it with such difficulty by the deepest thinkers. Yet in tracing the history of this association, it certainly does not seem to have suggested itself to very early thought, but is rather the offspring of a comparatively late philosophy. It is remarkable too that the "equality" of laws on which the Greek democracies prided themselves--that equality which, in the beautiful drinking song of Callistratus, Harmodius and Aristogiton are said to have given to Athens--had little in common with the "equity" of the Romans. The first was an equal administration of civil laws among the citizens, however limited the class of citizens might be; the last implied the applicability of a law, which was not civil law, to a class which did not necessarily consist of citizens. The first excluded a despot; the last included foreigners, and for some purposes slaves. On the whole, I should be disposed to look in another direction for the germ of the Roman "Equity." The Latin word "æquus" carries with it more distinctly than the Greek "[Greek: isos]" the sense of _levelling_. Now its levelling tendency was exactly the characteristic of the Jus Gentium, which would be most striking to a primitive Roman. The pure Quiritarian law recognised a multitude of arbitrary distinctions between classes of men and kinds of property; the Jus Gentium, generalised from a comparison of various customs, neglected the Quiritarian divisions. The old Roman law established, for example, a fundamental difference between "Agnatic" and "Cognatic" relationship, that is, between the Family considered as based upon common subjection to patriarchal authority and the Family considered (in conformity with modern ideas) as united through the mere fact of a common descent. This distinction disappears in the "law common to all nations," as also does the difference between the archaic forms of property, Things "Mancipi" and Things "nec Mancipi." The neglect of demarcations and boundaries seems to me, therefore, the feature of the Jus Gentium which was depicted in Æquitas. I imagine that the word was at first a mere description of that constant _levelling_ or removal of irregularities which went on wherever the prætorian system was applied to the cases of foreign litigants. Probably no colour of ethical meaning belonged at first to the expression; nor is there any reason to believe that the process which it indicated was otherwise than extremely distasteful to the primitive Roman mind. On the other hand, the feature of the Jus Gentium which was presented to the apprehension of a Roman by the word Equity, was exactly the first and most vividly realised characteristic of the hypothetical state of nature. Nature implied symmetrical order, first in the physical world, and next in the moral, and the earliest notion of order doubtless involved straight lines, even surfaces, and measured distances. The same sort of picture or figure would be unconsciously before the mind's eye, whether it strove to form the outlines of the supposed natural state, or whether it took in at a glance the actual administration of the "law common to all nations"; and all we know of primitive thought would lead us to conclude that this ideal similarity would do much to encourage the belief in an identity of the two conceptions. But then, while the Jus Gentium had little or no antecedent credit at Rome, the theory of a Law of Nature came in surrounded with all the prestige of philosophical authority, and invested with the charms of association with an elder and more blissful condition of the race. It is easy to understand how the difference in the point of view would affect the dignity of the term which at once described the operation of the old principles and the results of the new theory. Even to modern ears it is not at all the same thing to describe a process as one of "levelling" and to call it the "correction of anomalies," though the metaphor is precisely the same. Nor do I doubt that, when once Æquitas was understood to convey an allusion to the Greek theory, associations which grew out of the Greek notion of [Greek: isotês] began to cluster round it. The language of Cicero renders it more than likely that this was so, and it was the first stage of a transmutation of the conception of Equity, which almost every ethical system which has appeared since those days has more or less helped to carry on. Something must be said of the formal instrumentality by which the principles and distinctions associated, first with the Law common to all Nations, and afterwards with the Law of Nature, were gradually incorporated with the Roman law. At the crisis of primitive Roman history which is marked by the expulsion of the Tarquins, a change occurred which has its parallel in the early annals of many ancient states, but which had little in common with those passages of political affairs which we now term revolutions. It may best be described by saying that the monarchy was put into commission. The powers heretofore accumulated in the hands of a single person were parcelled out among a number of elective functionaries, the very name of the kingly office being retained and imposed on a personage known subsequently as the Rex Sacrorum or Rex Sacrificulus. As part of the change, the settled duties of the supreme judicial office devolved on the Prætor, at the time the first functionary in the commonwealth, and together with these duties was transferred the undefined supremacy over law and legislation which always attached to ancient sovereigns and which is not obscurely related to the patriarchal and heroic authority they had once enjoyed. The circumstances of Rome gave great importance to the more indefinite portion of the functions thus as transferred, as with the establishment of the republic began that series of recurrent trials which overtook the state, in the difficulty of dealing with a multitude of persons who, not coming within the technical description of indigenous Romans, were nevertheless permanently located within Roman jurisdiction. Controversies between such persons, or between such persons and native-born citizens, would have remained without the pale of the remedies provided by Roman law, if the Prætor had not undertaken to decide them, and he must soon have addressed himself to the more critical disputes which in the extension of commerce arose between Roman subjects and avowed foreigners. The great increase of such cases in the Roman Courts about the period of the first Punic War is marked by the appointment of a special Prætor, known subsequently as the Prætor Peregrinus, who gave them his undivided attention. Meantime, one precaution of the Roman people against the revival of oppression, had consisted in obliging every magistrate whose duties had any tendency to expand their sphere, to publish, on commencing his year of office, an Edict or proclamation, in which he declared the manner in which he intended to administer his department. The Prætor fell under the rule with other magistrates; but as it was necessarily impossible to construct each year a separate system of principles, he seems to have regularly republished his predecessor's Edict with such additions and changes as the exigency of the moment or his own views of the law compelled him to introduce. The Prætor's proclamation, thus lengthened by a new portion every year, obtained the name of the Edictum Perpetuum, that is, the _continuous_ or _unbroken_ edict. The immense length to which it extended, together perhaps with some distaste for its necessarily disorderly texture, caused the practice of increasing it to be stopped in the year of Salvius Julianus, who occupied the magistracy in the reign of the Emperor Hadrian. The edict of that Prætor embraced therefore the whole body of equity jurisprudence, which it probably disposed in new and symmetrical order, and the perpetual edict is therefore often cited in Roman law merely as the Edict of Julianus. Perhaps the first inquiry which occurs to an Englishman who considers the peculiar mechanism of the Edict is, what were the limitations by which these extensive powers of the Prætor were restrained? How was authority so little definite reconciled with a settled condition of society and of law? The answer can only be supplied by careful observation of the conditions under which our own English law is administered. The Prætor, it should be recollected, was a jurisconsult himself, or a person entirely in the hands of advisers who were jurisconsults, and it is probable that every Roman lawyer waited impatiently for the time when he should fill or control the great judicial magistracy. In the interval, his tastes, feelings, prejudices, and degree of enlightenment were inevitably those of his own order, and the qualifications which he ultimately brought to office were those which he had acquired in the practice and study of his profession. An English Chancellor goes through precisely the same training, and carries to the woolsack the same qualifications. It is certain when he assumes office that he will have, to some extent, modified the law before he leaves it; but until he has quitted his seat, and the series of his decisions in the Law Reports has been completed, we cannot discover how far he has elucidated or added to the principles which his predecessors bequeathed to him. The influence of the Prætor on Roman jurisprudence differed only in respect of the period at which its amount was ascertained. As was before stated, he was in office but for a year, and his decisions rendered during his year, though of course irreversible as regarded the litigants, were of no ulterior value. The most natural moment for declaring the changes he proposed to effect occurred therefore at his entrance on the prætorship, and hence, when commencing his duties, he did openly and avowedly that which in the end his English representative does insensibly and sometimes unconsciously. The checks on this apparent liberty are precisely those imposed on an English judge. Theoretically there seems to be hardly any limit to the powers of either of them, but practically the Roman Prætor, no less than the English Chancellor, was kept within the narrowest bounds by the prepossessions imbibed from early training and by the strong restraints of professional opinion, restraints of which the stringency can only be appreciated by those who have personally experienced them. It may be added that the lines within which movement is permitted, and beyond which there is to be no travelling, were chalked with as much distinctness in the one case as in the other. In England the judge follows the analogies of reported decisions on insulated groups of facts. At Rome, as the intervention of the Prætor was at first dictated by simple concern for the safety of the state, it is likely that in the earliest times it was proportioned to the difficulty which it attempted to get rid of. Afterwards, when the taste for principle had been diffused by the Responses, he no doubt used the Edict as the means of giving a wider application to those fundamental principles, which he and the other practising jurisconsults, his contemporaries, believed themselves to have detected underlying the law. Latterly he acted wholly under the influence of Greek philosophical theories, which at once tempted him to advance and confined him to a particular course of progress. The nature of the measures attributed to Salvius Julianus has been much disputed. Whatever they were, their effects on the Edict are sufficiently plain. It ceased to be extended by annual additions, and henceforward the equity jurisprudence of Rome was developed by the labours of a succession of great jurisconsults who fill with their writings the interval between the reign of Hadrian and the reign of Alexander Severus. A fragment of the wonderful system which they built up survives in the Pandects of Justinian, and supplies evidence that their works took the form of treatises on all parts of Roman Law, but chiefly that of commentaries on the Edict. Indeed, whatever be the immediate subject of a jurisconsult of this epoch, he may always be called an expositor of Equity. The principles of the Edict had, before the epoch of its cessation, made their way into every part of Roman jurisprudence. The Equity of Rome, it should be understood, even when most distinct from the Civil Law, was always administered by the same tribunals. The Prætor was the chief equity judge as well as the great common law magistrate, and as soon as the Edict had evolved an equitable rule the Prætor's court began to apply it in place of or by the side of the old rule of the Civil Law, which was thus directly or indirectly repealed without any express enactment of the legislature. The result, of course, fell considerably short of a complete fusion of law and equity, which was not carried out till the reforms of Justinian. The technical severance of the two elements of jurisprudence entailed some confusion and some inconvenience, and there were certain of the stubborner doctrines of the Civil Law with which neither the authors nor the expositors of the Edict had ventured to interfere. But at the same time there was no corner of the field of jurisprudence which was not more or less swept over by the influence of Equity. It supplied the jurist with all his materials for generalisation, with all his methods of interpretation, with his elucidations of first principles, and with that great mass of limiting rules which are rarely interfered with by the legislator, but which seriously control the application of every legislative act. The period of jurists ends with Alexander Severus. From Hadrian to that emperor the improvement of law was carried on, as it is at the present moment in most continental countries, partly by approved commentaries and partly by direct legislation. But in the reign of Alexander Severus the power of growth in Roman Equity seems to be exhausted, and the succession of jurisconsults comes to a close. The remaining history of the Roman law is the history of the imperial constitutions, and, at the last, of attempts to codify what had now become the unwieldy body of Roman jurisprudence. We have the latest and most celebrated experiment of this kind in the _Corpus Juris_ of Justinian. It would be wearisome to enter on a detailed comparison or contrast of English and Roman Equity, but it may be worth while to mention two features which they have in common. The first may be stated as follows. Each of them tended, and all such systems tend, to exactly the same state in which the old common law was when Equity first interfered with it. A time always comes at which the moral principles originally adopted have been carried out to all their legitimate consequences, and then the system founded on them becomes as rigid, as unexpansive, and as liable to fall behind moral progress as the sternest code of rules avowedly legal. Such an epoch was reached at Rome in the reign of Alexander Severus; after which, though the whole Roman world was undergoing a moral revolution, the Equity of Rome ceased to expand. The same point of legal history was attained in England under the chancellorship of Lord Eldon, the first of our equity judges who, instead of enlarging the jurisprudence of his court by indirect legislation, devoted himself through life to explaining and harmonising it. If the philosophy of legal history were better understood in England, Lord Eldon's services would be less exaggerated on the one hand and better appreciated on the other than they appear to be among contemporary lawyers. Other misapprehensions too, which bear some practical fruit, would perhaps be avoided. It is easily seen by English lawyers that English Equity is a system founded on moral rules; but it is forgotten that these rules are the morality of past centuries--not of the present--that they have received nearly as much application as they are capable of, and that though of course they do not differ largely from the ethical creed of our own day, they are not necessarily on a level with it. The imperfect theories of the subject which are commonly adopted have generated errors of opposite sorts. Many writers of treatises on Equity, struck with the completeness of the system in its present state, commit themselves expressly or implicitly to the paradoxical assertion that the founders of the chancery jurisprudence contemplated its present fixity of form when they were settling its first bases. Others, again, complain--and this is a grievance frequently observed upon in forensic arguments--that the moral rules enforced by the Court of Chancery fall short of the ethical standard of the present day. They would have each Lord Chancellor perform precisely the same office for the jurisprudence which he finds ready to his hand, which was performed for the old common law by the fathers of English equity. But this is to invert the order of the agencies by which the improvement of the law is carried on. Equity has its place and its time; but I have pointed out that another instrumentality is ready to succeed it when its energies are spent. Another remarkable characteristic of both English and Roman Equity is the falsehood of the assumptions upon which the claim of the equitable to superiority over the legal rule is originally defended. Nothing is more distasteful to men, either as individuals or as masses, than the admission of their moral progress as a substantive reality. This unwillingness shows itself, as regards individuals, in the exaggerated respect which is ordinarily paid to the doubtful virtue of consistency. The movement of the collective opinion of a whole society is too palpable to be ignored, and is generally too visible for the better to be decried; but there is the greatest disinclination to accept it as a primary phenomenon, and it is commonly explained as the recovery of a lost perfection--the gradual return to a state from which the race has lapsed. This tendency to look backward instead of forward for the goal of moral progress produced anciently, as we have seen, on Roman jurisprudence effects the most serious and permanent. The Roman jurisconsults, in order to account for the improvement of their jurisprudence by the Prætor, borrowed from Greece the doctrine of a Natural state of man--a Natural society--anterior to the organisation of commonwealths governed by positive laws. In England, on the other hand, a range of ideas especially congenial to Englishmen of that day, explained the claim of Equity to override the common law by supposing a general right to superintend the administration of justice which was assumed to be vested in the king as a natural result of his paternal authority. The same view appears in a different and a quainter form in the old doctrine that Equity flowed from the king's conscience--the improvement which had in fact taken place in the moral standard of the community being thus referred to an inherent elevation in the moral sense of the sovereign. The growth of the English constitution rendered such a theory unpalatable after a time; but, as the jurisdiction of the Chancery was then firmly established, it was not worth while to devise any formal substitute for it. The theories found in modern manuals of Equity are very various, but all are alike in their untenability. Most of them are modifications of the Roman doctrine of a natural law, which is indeed adopted in tenour by those writers who begin a discussion of the jurisdiction of the Court of Chancery by laying down a distinction between natural justice and civil. CHAPTER IV THE MODERN HISTORY OF THE LAW OF NATURE It will be inferred from what has been said that the theory which transformed the Roman jurisprudence had no claim to philosophical precision. It involved, in fact, one of those "mixed modes of thought" which are now acknowledged to have characterised all but the highest minds during the infancy of speculation, and which are far from undiscoverable even in the mental efforts of our own day. The Law of Nature confused the Past and the Present. Logically, it implied a state of Nature which had once been regulated by natural law; yet the jurisconsults do not speak clearly or confidently of the existence of such a state, which indeed is little noticed by the ancients except where it finds a poetical expression in the fancy of a golden age. Natural law, for all practical purposes, was something belonging to the present, something entwined with existing institutions, something which could be distinguished from them by a competent observer. The test which separated the ordinances of Nature from the gross ingredients with which they were mingled was a sense of simplicity and harmony; yet it was not on account of their simplicity and harmony that these finer elements were primarily respected, but on the score of their descent from the aboriginal reign of Nature. This confusion has not been successfully explained away by the modern disciples of the jurisconsults, and in truth modern speculations on the Law of Nature betray much more indistinctness of perception and are vitiated by much more hopeless ambiguity of language than the Roman lawyers can be justly charged with. There are some writers on the subject who attempt to evade the fundamental difficulty by contending that the code of Nature exists in the future and is the goal to which all civil laws are moving, but this is to reverse the assumptions on which the old theory rested, or rather perhaps to mix together two inconsistent theories. The tendency to look not to the past but to the future for types of perfection was brought into the world by Christianity. Ancient literature gives few or no hints of a belief that the progress of society is necessarily from worse to better. But the importance of this theory to mankind has been very much greater than its philosophical deficiencies would lead us to expect. Indeed, it is not easy to say what turn the history of thought, and therefore, of the human race, would have taken, if the belief in a law natural had not become universal in the ancient world. There are two special dangers to which law, and society which is held together by law, appear to be liable in their infancy. One of them is that law may be too rapidly developed. This occurred with the codes of the more progressive Greek communities, which disembarrassed themselves with astonishing facility from cumbrous forms of procedure and needless terms of art, and soon ceased to attach any superstitious value to rigid rules and prescriptions. It was not for the ultimate advantage of mankind that they did so, though the immediate benefit conferred on their citizens may have been considerable. One of the rarest qualities of national character is the capacity for applying and working out the law, as such, at the cost of constant miscarriages of abstract justice, without at the same time losing the hope or the wish that law may be conformed to a higher ideal. The Greek intellect, with all its nobility and elasticity, was quite unable to confine itself within the strait waistcoat of a legal formula; and, if we may judge them by the popular courts of Athens, of whose working we possess accurate knowledge, the Greek tribunals exhibited the strongest tendency to confound law and fact. The remains of the Orators and the forensic commonplaces preserved by Aristotle in his Treatise on Rhetoric, show that questions of pure law were constantly argued on every consideration which could possibly influence the mind of the judges. No durable system of jurisprudence could be produced in this way. A community which never hesitated to relax rules of written law whenever they stood in the way of an ideally perfect decision on the facts of particular cases, would only, if it bequeathed any body of judicial principles to posterity, bequeath one consisting of the ideas of right and wrong which happened to be prevalent at the time. Such a jurisprudence would contain no framework to which the more advanced conceptions of subsequent ages could be fitted. It would amount at best to a philosophy marked with the imperfections of the civilisation under which it grew up. Few national societies have had their jurisprudence menaced by this peculiar danger of precocious maturity and untimely disintegration. It is certainly doubtful whether the Romans were ever seriously threatened by it, but at any rate they had adequate protection in their theory of Natural Law. For the Natural Law of the jurisconsults was distinctly conceived by them as a system which ought gradually to absorb civil laws, without superseding them so long as they remained unrepealed. There was no such impression of its sanctity abroad, that an appeal to it would be likely to overpower the mind of a judge who was charged with the superintendence of a particular litigation. The value and serviceableness of the conception arose from its keeping before the mental vision a type of perfect law, and from its inspiring the hope of an indefinite approximation to it, at the same time that it never tempted the practitioner or the citizen to deny the obligation of existing laws which had not yet been adjusted to the theory. It is important too to observe that this model system, unlike many of those which have mocked men's hopes in later days, was not entirely the product of imagination. It was never thought of as founded on quite untested principles. The notion was that it underlay existing law and must be looked for through it. Its functions were in short remedial, not revolutionary or anarchical. And this, unfortunately, is the exact point at which the modern view of a Law of Nature has often ceased to resemble the ancient. The other liability to which the infancy of society is exposed has prevented or arrested the progress of far the greater part of mankind. The rigidity of primitive law, arising chiefly from its early association and identification with religion, has chained down the mass of the human race to those views of life and conduct which they entertained at the time when their usages were first consolidated into a systematic form. There were one or two races exempted by a marvellous fate from this calamity, and grafts from these stocks have fertilised a few modern societies, but it is still true that, over the larger part of the world, the perfection of law has always been considered as consisting in adherence to the ground plan supposed to have been marked out by the original legislator. If intellect has in such cases been exercised on jurisprudence, it has uniformly prided itself on the subtle perversity of the conclusions it could build on ancient texts, without discoverable departure from their literal tenour. I know no reason why the law of the Romans should be superior to the laws of the Hindoos, unless the theory of Natural Law had given it a type of excellence different from the usual one. In this one exceptional instance, simplicity and symmetry were kept before the eyes of a society whose influence on mankind was destined to be prodigious from other causes, as the characteristics of an ideal and absolutely perfect law. It is impossible to overrate the importance to a nation or profession of having a distinct object to aim at in the pursuit of improvement. The secret of Bentham's immense influence in England during the past thirty years is his success in placing such an object before the country. He gave us a clear rule of reform. English lawyers of the last century were probably too acute to be blinded by the paradoxical commonplace that English law was the perfection of human reason, but they acted as if they believed it for want of any other principle to proceed upon. Bentham made the good of the community take precedence of every other object, and thus gave escape to a current which had long been trying to find its way outwards. It is not an altogether fanciful comparison if we call the assumptions we have been describing the ancient counterpart of Benthamism. The Roman theory guided men's efforts in the same direction as the theory put into shape by the Englishman; its practical results were not widely different from those which would have been attained by a sect of law-reformers who maintained a steady pursuit of the general good of the community. It would be a mistake, however, to suppose it a conscious anticipation of Bentham's principles. The happiness of mankind is, no doubt, sometimes assigned, both in the popular and in the legal literature of the Romans, as the proper object of remedial legislation, but it is very remarkable how few and faint are the testimonies to this principle compared with the tributes which are constantly offered to the overshadowing claims of the Law of Nature. It was not to anything resembling philanthropy, but to their sense of simplicity and harmony--of what they significantly termed "elegance"--that the Roman jurisconsults freely surrendered themselves. The coincidence of their labours with those which a more precise philosophy would have counselled has been part of the good fortune of mankind. Turning to the modern history of the law of nature, we find it easier to convince ourselves of the vastness of its influence than to pronounce confidently whether that influence has been exerted for good or for evil. The doctrines and institutions which may be attributed to it are the material of some of the most violent controversies debated in our time, as will be seen when it is stated that the theory of Natural Law is the source of almost all the special ideas as to law, politics, and society which France during the last hundred years has been the instrument of diffusing over the western world. The part played by jurists in French history, and the sphere of jural conceptions in French thought, have always been remarkably large. It was not indeed in France, but in Italy, that the juridical science of modern Europe took its rise, but of the schools founded by emissaries of the Italian universities in all parts of the continent, and attempted (though vainly) to be set up in our island, that established in France produced the greatest effect on the fortunes of the country. The lawyers of France immediately formed a strict alliance with the kings of the house of Capet, and it was as much through their assertions of royal prerogative, and through their interpretations of the rules of feudal succession, as by the power of the sword, that the French monarchy at last grew together out of the agglomeration of provinces and dependencies. The enormous advantage which their understanding with the lawyers conferred on the French kings in the prosecution of their struggle with the great feudatories, the aristocracy, and the church, can only be appreciated if we take into account the ideas which prevailed in Europe far down into the middle ages. There was, in the first place, a great enthusiasm for generalisation and a curious admiration for all general propositions, and consequently, in the field of law, an involuntary reverence for every general formula which seemed to embrace and sum up a number of the insulated rules which were practised as usages in various localities. Such general formulas it was, of course, not difficult for practitioners familiar with the Corpus Juris or the Glosses to supply in almost any quantity. There was, however, another cause which added yet more considerably to the lawyers' power. At the period of which we are speaking, there was universal vagueness of ideas as to the degree and nature of the authority residing in written texts of law. For the most part, the peremptory preface, _Ita scriptum est_, seems to have been sufficient to silence all objections. Where a mind of our own day would jealously scrutinise the formula which had been quoted, would inquire its source, and would (if necessary) deny that the body of law to which it belonged had any authority to supersede local customs, the elder jurist would not probably have ventured to do more than question the applicability of the rule, or at best cite some counter proposition from the Pandects or the Canon Law. It is extremely necessary to bear in mind the uncertainty of men's notions on this most important side of juridical controversies, not only because it helps to explain the weight which the lawyers threw into the monarchical scale, but on account of the light which it sheds on several curious historical problems. The motives of the author of the Forged Decretals and his extraordinary success are rendered more intelligible by it. And, to take a phenomenon of smaller interest, it assists us, though only partially, to understand the plagiarisms of Bracton. That an English writer of the time of Henry III. should have been able to put off on his countrymen as a compendium of pure English law a treatise of which the entire form and a third of the contents were directly borrowed from the Corpus Juris, and that he should have ventured on this experiment in a country where the systematic study of the Roman law was formally proscribed, will always be among the most hopeless enigmas in the history of jurisprudence; but still it is something to lessen our surprise when we comprehend the state of opinion at the period as to the obligatory force of written texts, apart from all consideration of the source whence they were derived. When the kings of France had brought their long struggle for supremacy to a successful close, an epoch which may be placed roughly at the accession of the branch of Valois-Angoulême to the throne, the situation of the French jurists was peculiar and continued to be so down to the outbreak of the revolution. On the one hand, they formed the best instructed and nearly the most powerful class in the nation. They had made good their footing as a privileged order by the side of the feudal aristocracy, and they had assured their influence by an organisation which distributed their profession over France in great chartered corporations possessing large defined powers and still larger indefinite claims. In all the qualities of the advocate, the judge, and the legislator, they far excelled their compeers throughout Europe. Their juridical tact, their ease of expression, their fine sense of analogy and harmony, and (if they may be judged by the highest names among them) their passionate devotion to their conceptions of justice, were as remarkable as the singular variety of talent which they included, a variety covering the whole ground between the opposite poles of Cujas and Montesquieu, of D'Aguesseau and Dumoulin. But, on the other hand, the system of laws which they had to administer stood in striking contrast with the habits of mind which they had cultivated. The France which had been in great part constituted by their efforts was smitten with the curse of an anomalous and dissonant jurisprudence beyond every other country in Europe. One great division ran through the country and separated it into _Pays du Droit Ecrit_ and _Pays du Droit Coutumier_, the first acknowledging the written Roman law as the basis of their jurisprudence, the last admitting it only so far as it supplied general forms of expression, and courses of juridical reasoning which were reconcileable with the local usages. The sections thus formed were again variously subdivided. In the _Pays du Droit Coutumier_ province differed from province, county from county, municipality from municipality, in the nature of its customs. In the _Pays du Droit Ecrit_ the stratum of feudal rules which overlay the Roman law was of the most miscellaneous composition. No such confusion as this ever existed in England. In Germany it did exist, but was too much in harmony with the deep political and religious divisions of the country to be lamented or even felt. It was the special peculiarity of France that an extraordinary diversity of laws continued without sensible alteration while the central authority of the monarchy was constantly strengthening itself, while rapid approaches were being made to complete administrative unity, and while a fervid national spirit had been developed among the people. The contrast was one which fructified in many serious results, and among them we must rank the effect which it produced on the minds of the French lawyers. Their speculative opinions and their intellectual bias were in the strongest opposition to their interests and professional habits. With the keenest sense and the fullest recognition of those perfections of jurisprudence which consist in simplicity and uniformity, they believed, or seemed to believe, that the vices which actually infested French law were ineradicable; and in practice they often resisted the reformation of abuses with an obstinacy which was not shown by many among their less enlightened countrymen. But there was a way to reconcile these contradictions. They became passionate enthusiasts for Natural Law. The Law of Nature overleapt all provincial and municipal boundaries; it disregarded all distinctions between noble and burgess, between burgess and peasant; it gave the most exalted place to lucidity, simplicity and system; but it committed its devotees to no specific improvement, and did not directly threaten any venerable or lucrative technicality. Natural law may be said to have become the common law of France, or, at all events, the admission of its dignity and claims was the one tenet which all French practitioners alike subscribed to. The language of the præ-revolutionary jurists in its eulogy is singularly unqualified, and it is remarkable that the writers on the Customs, who often made it their duty to speak disparagingly of the pure Roman law, speak even more fervidly of Nature and her rules than the civilians who professed an exclusive respect for the Digest and the Code. Dumoulin, the highest of all authorities on old French Customary Law, has some extravagant passages on the Law of Nature; and his panegyrics have a peculiar rhetorical turn which indicated a considerable departure from the caution of the Roman jurisconsults. The hypothesis of a Natural Law had become not so much a theory guiding practice as an article of speculative faith, and accordingly we shall find that, in the transformation which it more recently underwent, its weakest parts rose to the level of its strongest in the esteem of its supporters. The eighteenth century was half over when the most critical period in the history of Natural Law was reached. Had the discussion of the theory and of its consequences continued to be exclusively the employment of the legal profession, there would possibly have been an abatement of the respect which it commanded; for by this time the _Esprit des Lois_ had appeared. Bearing in some exaggerations the marks of the excessive violence with which its author's mind had recoiled from assumptions usually suffered to pass without scrutiny, yet showing in some ambiguities the traces of a desire to compromise with existing prejudice, the book of Montesquieu, with all its defects, still proceeded on that Historical Method before which the Law of Nature has never maintained its footing for an instant. Its influence on thought ought to have been as great as its general popularity; but, in fact, it was never allowed time to put it forth, for the counter-hypothesis which it seemed destined to destroy passed suddenly from the forum to the street, and became the key-note of controversies far more exciting than are ever agitated in the courts or the schools. The person who launched it on its new career was that remarkable man who, without learning, with few virtues, and with no strength of character, has nevertheless stamped himself ineffaceably on history by the force of a vivid imagination, and by the help of a genuine and burning love for his fellow-men, for which much will always have to be forgiven him. We have never seen in our own generation--indeed the world has not seen more than once or twice in all the course of history--a literature which has exercised such prodigious influence over the minds of men, over every cast and shade of intellect, as that which emanated from Rousseau between 1749 and 1762. It was the first attempt to re-erect the edifice of human belief after the purely iconoclastic efforts commenced by Bayle, and in part by our own Locke, and consummated by Voltaire; and besides the superiority which every constructive effort will always enjoy over one that is merely destructive, it possessed the immense advantage of appearing amid an all but universal scepticism as to the soundness of all foregone knowledge in matters speculative. Now, in all the speculations of Rousseau, the central figure, whether arrayed in an English dress as the signatory of a social compact, or simply stripped naked of all historical qualities, is uniformly Man, in a supposed state of nature. Every law or institution which would misbeseem this imaginary being under these ideal circumstances is to be condemned as having lapsed from an original perfection; every transformation of society which would give it a closer resemblance to the world over which the creature of Nature reigned, is admirable and worthy to be effected at any apparent cost. The theory is still that of the Roman lawyers, for in the phantasmagoria with which the Natural Condition is peopled, every feature and characteristic eludes the mind except the simplicity and harmony which possessed such charms for the jurisconsult; but the theory is, as it were, turned upside down. It is not the Law of Nature, but the State of Nature, which is now the primary subject of contemplation. The Roman had conceived that by careful observation of existing institutions parts of them could be singled out which either exhibited already, or could by judicious purification be made to exhibit, the vestiges of that reign of nature whose reality he faintly affirmed. Rousseau's belief was that a perfect social order could be evolved from the unassisted consideration of the natural state, a social order wholly irrespective of the actual condition of the world and wholly unlike it. The great difference between the views is that one bitterly and broadly condemns the present for its unlikeness to the ideal past; while the other, assuming the present to be as necessary as the past, does not affect to disregard or censure it. It is not worth our while to analyse with any particularity that philosophy of politics, art, education, ethics, and social relation which was constructed on the basis of a state of nature. It still possesses singular fascination for the looser thinkers of every country, and is no doubt the parent, more or less remote, of almost all the prepossessions which impede the employment of the Historical Method of inquiry, but its discredit with the higher minds of our day is deep enough to astonish those who are familiar with the extraordinary vitality of speculative error. Perhaps the question most frequently asked nowadays is not what is the value of these opinions, but what were the causes which gave them such overshadowing prominence a hundred years ago. The answer is, I conceive, a simple one. The study which in the last century would best have corrected the misapprehensions into which an exclusive attention to legal antiquities is apt to betray was the study of religion. But Greek religion, as then understood, was dissipated in imaginative myths. The Oriental religions, if noticed at all, appeared to be lost in vain cosmogonies. There was but one body of primitive records which was worth studying--the early history of the Jews. But resort to this was prevented by the prejudices of the time. One of the few characteristics which the school of Rousseau had in common with the school of Voltaire was an utter disdain of all religious antiquities; and, more than all, of those of the Hebrew race. It is well known that it was a point of honour with the reasoners of that day to assume not merely that the institutions called after Moses were not divinely dictated, nor even that they were codified at a later date than that attributed to them, but that they and the entire Pentateuch were a gratuitous forgery, executed after the return from the Captivity. Debarred, therefore, from one chief security against speculative delusion, the philosophers of France, in their eagerness to escape from what they deemed a superstition of the priests, flung themselves headlong into a superstition of the lawyers. But though the philosophy founded on the hypothesis of a state of nature has fallen low in general esteem, in so far as it is looked upon under its coarser and more palpable aspect, it does not follow that in its subtler disguises it has lost plausibility, popularity, or power. I believe, as I have said, that it is still the great antagonist of the Historical Method; and whenever (religious objections apart) any mind is seen to resist or contemn that mode of investigation, it will generally be found under the influence of a prejudice or vicious bias traceable to a conscious or unconscious reliance on a non-historic, natural, condition of society or the individual. It is chiefly, however, by allying themselves with political and social tendencies that the doctrines of Nature and her law have preserved their energy. Some of these tendencies they have stimulated, others they have actually created, to a great number they have given expression and form. They visibly enter largely into the ideas which constantly radiate from France over the civilised world, and thus become part of the general body of thought by which its civilisation is modified. The value of the influence which they thus exercise over the fortunes of the race is of course one of the points which our age debates most warmly, and it is beside the purpose of this treatise to discuss it. Looking back, however, to the period at which the theory of the state of nature acquired the maximum of political importance, there are few who will deny that it helped most powerfully to bring about the grosser disappointments of which the first French Revolution was fertile. It gave birth, or intense stimulus, to the vices of mental habit all but universal at the time, disdain of positive law, impatience of experience, and the preference of _à priori_ to all other reasoning. In proportion too as this philosophy fixes its grasp on minds which have thought less than others and fortified themselves with smaller observation, its tendency is to become distinctly anarchical. It is surprising to note how many of the _Sophismes Anarchiques_ which Dumont published for Bentham, and which embody Bentham's exposure of errors distinctively French, are derived from the Roman hypothesis in its French transformation, and are unintelligible unless referred to it. On this point too it is a curious exercise to consult the _Moniteur_ during the principal eras of the Revolution. The appeals to the Law and State of Nature become thicker as the times grow darker. They are comparatively rare in the Constituent Assembly; they are much more frequent in the Legislative; in the Convention, amid the din of debate on conspiracy and war, they are perpetual. There is a single example which very strikingly illustrates the effects of the theory of natural law on modern society, and indicates how very far are those effects from being exhausted. There cannot, I conceive, be any question that to the assumption of a Law Natural we owe the doctrine of the fundamental equality of human beings. That "all men are equal" is one of a large number of legal propositions which, in progress of time, have become political. The Roman jurisconsults of the Antonine era lay down that "omnes homines naturâ æquales sunt," but in their eyes this is a strictly juridical axiom. They intend to affirm that, under the hypothetical Law of Nature, and in so far as positive law approximates to it, the arbitrary distinctions which the Roman Civil Law maintained between classes of persons cease to have a legal existence. The rule was one of considerable importance to the Roman practitioner, who required to be reminded that, wherever Roman jurisprudence was assumed to conform itself exactly to the code of Nature, there was no difference in the contemplation of the Roman tribunals between citizen and foreigner, between freeman and slave, between Agnate and Cognate. The jurisconsults who thus expressed themselves most certainly never intended to censure the social arrangements under which civil law fell somewhat short of its speculative type; nor did they apparently believe that the world would ever see human society completely assimilated to the economy of nature. But when the doctrine of human equality makes its appearance in a modern dress it has evidently clothed itself with a new shade of meaning. Where the Roman jurisconsult had written "æquales sunt," meaning exactly what he said, the modern civilian wrote "all men are equal" in the sense of "all men ought to be equal." The peculiar Roman idea that natural law coexisted with civil law and gradually absorbed it, had evidently been lost sight of, or had become unintelligible, and the words which had at most conveyed a theory concerning the origin, composition, and development of human institutions, were beginning to express the sense of a great standing wrong suffered by mankind. As early as the beginning of the fourteenth century, the current language concerning the birth-state of men, though visibly intended to be identical with that of Ulpian and his contemporaries, has assumed an altogether different form and meaning. The preamble to the celebrated ordinance of King Louis Hutin enfranchising the serfs of the royal domains would have sounded strangely to Roman ears. "Whereas, according to natural law, everybody ought to be born free; and by some usages and customs which, from long antiquity, have been introduced and kept until now in our realm, and peradventure by reason of the misdeeds of their predecessors, many persons of our common people have fallen into servitude, therefore, We, etc." This is the enunciation not of a legal rule but of a political dogma; and from this time the equality of men is spoken of by the French lawyers just as if it were a political truth which happened to have been preserved among the archives of their science. Like all other deductions from the hypothesis of a Law Natural, and like the belief itself in a Law of Nature, it was languidly assented to and suffered to have little influence on opinion and practice until it passed out of the possession of the lawyers into that of the literary men of the eighteenth century and of the public which sat at their feet. With them it became the most distinct tenet of their creed, and was even regarded as a summary of all the others. It is probable, however, that the power which it ultimately acquired over the events of 1789 was not entirely owing to its popularity in France, for in the middle of the century it passed over to America. The American lawyers of the time, and particularly those of Virginia, appear to have possessed a stock of knowledge which differed chiefly from that of their English contemporaries in including much which could only have been derived from the legal literature of continental Europe. A very few glances at the writings of Jefferson will show how strongly his mind was affected by the semi-juridical, semi-popular opinions which were fashionable in France, and we cannot doubt that it was sympathy with the peculiar ideas of the French jurists which led him and the other colonial lawyers who guided the course of events in America to join the specially French assumption that "all men are born equal" with the assumption, more familiar to Englishmen, that "all men are born free," in the very first lines of their Declaration of Independence. The passage was one of great importance to the history of the doctrine before us. The American lawyers, in thus prominently and emphatically affirming the fundamental equality of human beings, gave an impulse to political movements in their own country, and in a less degree in Great Britain, which is far from having yet spent itself; but besides this they returned the dogma they had adopted to its home in France, endowed with vastly greater energy and enjoying much greater claims on general reception and respect. Even the more cautious politicians of the first Constituent Assembly repeated Ulpian's proposition as if it at once commended itself to the instincts and intuitions of mankind; and of all the "principles of 1789" it is the one which has been least strenuously assailed, which has most thoroughly leavened modern opinion, and which promises to modify most deeply the constitution of societies and the politics of states. The grandest function of the Law of Nature was discharged in giving birth to modern International Law and to the modern Law of War, but this part of its effects must here be dismissed with consideration very unequal to its importance. Among the postulates which form the foundation of International Law, or of so much of it as retains the figure which it received from its original architects, there are two or three of pre-eminent importance. The first of all is expressed in the position that there is a determinable Law of Nature. Grotius and his successors took the assumption directly from the Romans, but they differed widely from the Roman jurisconsults and from each other in their ideas as to the mode of determination. The ambition of almost every Publicist who has flourished since the revival of letters has been to provide new and more manageable definitions of Nature and of her law, and it is indisputable that the conception in passing through the long series of writers on Public Law has gathered round it a large accretion, consisting of fragments of ideas derived from nearly every theory of ethics which has in its turn taken possession of the schools. Yet it is a remarkable proof of the essentially historical character of the conception that, after all the efforts which have been made to evolve the code of nature from the necessary characteristics of the natural state, so much of the result is just what it would have been if men had been satisfied to adopt the dicta of the Roman lawyers without questioning or reviewing them. Setting aside the Conventional or Treaty Law of Nations, it is surprising how large a part of the system is made up of pure Roman law. Wherever there is a doctrine of the jurisconsults affirmed by them to be in harmony with the Jus Gentium, the publicists have found a reason for borrowing it, however plainly it may bear the marks of a distinctively Roman origin. We may observe too that the derivative theories are afflicted with the weakness of the primary notion. In the majority of the Publicists, the mode of thought is still "mixed." In studying these writers, the great difficulty is always to discover whether they are discussing law or morality--whether the state of international relations they describe is actual or ideal--whether they lay down that which is, or that which, in their opinion, ought to be. The assumption that Natural Law is binding on states _inter se_ is the next in rank of those which underlie International Law. A series of assertions or admissions of this principle may be traced up to the very infancy of modern juridical science, and at first sight it seems a direct inference from the teaching of the Romans. The civil condition of society being distinguished from the natural by the fact that in the first there is a distinct author of law, while in the last there is none, it appears as if the moment a number of _units_ were acknowledged to obey no common sovereign or political superior they were thrown back on the ulterior behests of the Law Natural. States are such units; the hypothesis of their independence excludes the notion of a common lawgiver, and draws with it, therefore, according to a certain range of ideas, the notion of subjection to the primeval order of nature. The alternative is to consider independent communities as not related to each other by any law, but this condition of lawlessness is exactly the vacuum which the Nature of the jurisconsults abhorred. There is certainly apparent reason for thinking that if the mind of a Roman lawyer rested on any sphere from which civil law was banished, it would instantly fill the void with the ordinances of Nature. It is never safe, however, to assume that conclusions, however certain and immediate in our own eyes, were actually drawn at any period of history. No passage has ever been adduced from the remains of Roman law which, in my judgment, proves the jurisconsults to have believed natural law to have obligatory force between independent commonwealths; and we cannot but see that to citizens of the Roman empire who regarded their sovereign's dominions as conterminous with civilisation, the equal subjection of states to the Law of Nature, if contemplated at all, must have seemed at most an extreme result of curious speculation. The truth appears to be that modern International Law, undoubted as is its descent from Roman law, is only connected with it by an irregular filiation. The early modern interpreters of the jurisprudence of Rome, misconceiving the meaning of Jus Gentium, assumed without hesitation that the Romans had bequeathed to them a system of rules for the adjustment of international transactions. This "Law of Nations" was at first an authority which had formidable competitors to strive with, and the condition of Europe was long such as to preclude its universal reception. Gradually, however, the western world arranged itself in a form more favourable to the theory of the civilians; circumstances destroyed the credit of rival doctrines; and at last, at a peculiarly felicitous conjuncture, Ayala and Grotius were able to obtain for it the enthusiastic assent of Europe, an assent which has been over and over again renewed in every variety of solemn engagement. The great men to whom its triumph is chiefly owing attempted, it need scarcely be said, to place it on an entirely new basis, and it is unquestionable that in the course of this displacement they altered much of its structure, though far less of it than is commonly supposed. Having adopted from the Antonine jurisconsults the position that the Jus Gentium and the Jus Naturæ were identical, Grotius, with his immediate predecessors and his immediate successors, attributed to the Law of Nature an authority which would never perhaps have been claimed for it, if "Law of Nations" had not in that age been an ambiguous expression. They laid down unreservedly that Natural Law is the code of states, and thus put in operation a process which has continued almost down to our own day, the process of engrafting on the international system rules which are supposed to have been evolved from the unassisted contemplation of the conception of Nature. There is too one consequence of immense practical importance to mankind which, though not unknown during the early modern history of Europe, was never clearly or universally acknowledged till the doctrines of the Grotian school had prevailed. If the society of nations is governed by Natural Law, the atoms which compose it must be absolutely equal. Men under the sceptre of Nature are all equal, and accordingly commonwealths are equal if the international state be one of nature. The proposition that independent communities, however different in size and power, are all equal in the view of the law of nations, has largely contributed to the happiness of mankind, though it is constantly threatened by the political tendencies of each successive age. It is a doctrine which probably would never have obtained a secure footing at all if International Law had not been entirely derived from the majestic claims of Nature by the Publicists who wrote after the revival of letters. On the whole, however, it is astonishing, as I have observed before, how small a proportion the additions made to International Law since Grotius's day bear to the ingredients which have been simply taken from the most ancient stratum of the Roman Jus Gentium. Acquisition of territory has always been the great spur of national ambition, and the rules which govern this acquisition, together with the rules which moderate the wars in which it too frequently results, are merely transcribed from the part of the Roman law which treats of the modes of acquiring property _jure gentium_. These modes of acquisition were obtained by the elder jurisconsults, as I have attempted to explain, by abstracting a common ingredient from the usages observed to prevail among the various tribes surrounding Rome; and, having been classed on account of their origin in the "law common to all nations," they were thought by the later lawyers to fit in, on the score of their simplicity, with the more recent conception of a Law Natural. They thus made their way into the modern Law of Nations, and the result is that those parts of the international system which refer to _dominion_, its nature, its limitations, the modes of acquiring and securing it, are pure Roman Property Law--so much, that is to say, of the Roman Law of Property as the Antonine jurisconsults imagined to exhibit a certain congruity with the natural state. In order that these chapters of International Law may be capable of application, it is necessary that sovereigns should be related to each other like the members of a group of Roman proprietors. This is another of the postulates which lie at the threshold of the International Code, and it is also one which could not possibly have been subscribed to during the first centuries of modern European history. It is resolvable into the double proposition that "sovereignty is territorial," _i.e._ that it is always associated with the proprietorship of a limited portion of the earth's surface, and that "sovereigns _inter se_ are to be deemed not _paramount_, but _absolute_, owners of the state's territory." Many contemporary writers on International Law tacitly assume that the doctrines of their system, founded on principles of equity and common sense, were capable of being readily reasoned out in every stage of modern civilisation. But this assumption, while it conceals some real defects of the international theory, is altogether untenable, so far as regards a large part of modern history. It is not true that the authority of the Jus Gentium in the concerns of nations was always uncontradicted; on the contrary, it had to struggle long against the claims of several competing systems. It is again not true that the territorial character of sovereignty was always recognised, for long after the dissolution of the Roman dominion the minds of men were under the empire of ideas irreconcileable with such a conception. An old order of things, and of views founded on it, had to decay--a new Europe, and an apparatus of new notions congenial to it, had to spring up--before two of the chiefest postulates of International Law could be universally conceded. It is a consideration well worthy to be kept in view, that during a large part of what we usually term modern history no such conception was entertained as that of "_territorial sovereignty_." Sovereignty was not associated with dominion over a portion or subdivision of the earth. The world had lain for so many centuries under the shadow of Imperial Rome as to have forgotten that distribution of the vast spaces comprised in the empire which had once parcelled them out into a number of independent commonwealths, claiming immunity from extrinsic interference, and pretending to equality of national rights. After the subsidence of the barbarian irruptions, the notion of sovereignty that prevailed seems to have been twofold. On the one hand it assumed the form of what may be called "_tribe_-sovereignty." The Franks, the Burgundians, the Vandals, the Lombards, and Visigoths were masters, of course, of the territories which they occupied, and to which some of them have given a geographical appellation; but they based no claim of right upon the fact of territorial possession, and indeed attached no importance to it whatever. They appear to have retained the traditions which they brought with them from the forest and the steppe, and to have still been in their own view a patriarchal society, a nomad horde, merely encamped for the time upon the soil which afforded them sustenance. Part of Transalpine Gaul, with part of Germany, had now become the country _de facto_ occupied by the Franks--it was France; but the Merovingian line of chieftains, the descendants of Clovis, were not Kings of France, they were Kings of the Franks. The alternative to this peculiar notion of sovereignty appears to have been--and this is the important point--the idea of universal dominion. The moment a monarch departed from the special relation of chief to clansmen, and became solicitous, for purposes of his own, to invest himself with a novel form of sovereignty, the only precedent which suggested itself for his adoption was the domination of the Emperors of Rome. To parody a common quotation, he became "_aut Cæsar aut nullus_." Either he pretended to the full prerogative of the Byzantine Emperor, or he had no political status whatever. In our own age, when a new dynasty is desirous of obliterating the prescriptive title of a deposed line of sovereigns, it takes its designation from the _people_, instead of the _territory_. Thus we have Emperors and Kings of the French, and a King of the Belgians. At the period of which we have been speaking, under similar circumstances a different alternative presented itself. The Chieftain who would no longer call himself King of the tribe must claim to be Emperor of the world. Thus, when the hereditary Mayors of the Palace had ceased to compromise with the monarchs they had long since virtually dethroned, they soon became unwilling to call themselves Kings of the Franks, a title which belonged to the displaced Merovings; but they could not style themselves Kings of France, for such a designation, though apparently not unknown, was not a title of dignity. Accordingly they came forward as aspirants to universal empire. Their motive has been greatly misapprehended. It has been taken for granted by recent French writers that Charlemagne was far before his age, quite as much in the character of his designs as in the energy with which he prosecuted them. Whether it be true or not that anybody is at any time before his age, it is certainly true that Charlemagne, in aiming at an unlimited dominion, was emphatically taking the only course which the characteristic ideas of his age permitted him to follow. Of his intellectual eminence there cannot be a question, but it is proved by his acts and not by his theory. These singularities of view were not altered on the partition of the inheritance of Charlemagne among his three grandsons. Charles the Bald, Lewis, and Lothair were still theoretically--if it be proper to use the word--Emperors of Rome. Just as the Cæsars of the Eastern and Western Empires had each been _de jure_ emperor of the whole world, with _de facto_ control over half of it, so the three Carlovingians appear to have considered their power as limited, but their title as unqualified. The same speculative universality of sovereignty continued to be associated with the Imperial throne after the second division on the death of Charles the Fat, and, indeed, was never thoroughly dissociated from it so long as the empire of Germany lasted. Territorial sovereignty--the view which connects sovereignty with the possession of a limited portion of the earth's surface--was distinctly an offshoot, though a tardy one, of _feudalism_. This might have been expected _à priori_, for it was feudalism which for the first time linked personal duties, and by consequence personal rights, to the ownership of land. Whatever be the proper view of its origin and legal nature, the best mode of vividly picturing to ourselves the feudal organisation is to begin with the basis, to consider the relation of the tenant to the patch of soil which created and limited his services--and then to mount up, through narrowing circles of super-feudation, till we approximate to the apex of the system. Where that summit exactly was during the later portion of the dark ages it is not easy to decide. Probably, wherever the conception of tribe sovereignty had really decayed, the topmost point was always assigned to the supposed successor of the Cæsars of the West. But before long, when the actual sphere of Imperial authority had immensely contracted, and when the emperors had concentrated the scanty remains of their power upon Germany and North Italy, the highest feudal superiors in all the outlying portions of the former Carlovingian empire found themselves practically without a supreme head. Gradually they habituated themselves to the new situation, and the fact of immunity put at last out of sight the theory of dependence; but there are many symptoms that this change was not quite easily accomplished; and, indeed, to the impression that in the nature of things there must necessarily be a culminating domination somewhere, we may, no doubt, refer the increasing tendency to attribute secular superiority to the See of Rome. The completion of the first stage in the revolution of opinion is marked, of course, by the accession of the Capetian dynasty in France. When the feudal prince of a limited territory surrounding Paris began, from the accident of his uniting an unusual number of suzerainties in his own person, to call himself _King of France_, he became king in quite a new sense, a sovereign standing in the same relation to the soil of France as the baron to his estate, the tenant to his freehold. The precedent, however, was as influential as it was novel, and the form of the monarchy in France had visible effects in hastening changes which were elsewhere proceeding in the same direction. The kingship of our Anglo-Saxon regal houses was midway between the chieftainship of a tribe and a territorial supremacy; but the superiority of the Norman monarchs, imitated from that of the King of France, was distinctly a territorial sovereignty. Every subsequent dominion which was established or consolidated was formed on the later model. Spain, Naples, and the principalities founded on the ruins of municipal freedom in Italy, were all under rulers whose sovereignty was territorial. Few things, I may add, are more curious than the gradual lapse of the _Venetians_ from one view to the other. At the commencement of its foreign conquests, the republic regarded itself as an antitype of the Roman commonwealth, governing a number of subject provinces. Move a century onwards, and you find that it wishes to be looked upon as a corporate sovereign, claiming the rights of a feudal suzerain over its possessions in Italy and the Ægean. During the period through which the popular ideas on the subject of sovereignty were undergoing this remarkable change, the system which stood in the place of what we now call International Law, was heterogeneous in form and inconsistent in the principles to which it appealed. Over so much of Europe as was comprised in the Romano-German empire, the connection of the confederate states was regulated by the complex and as yet incomplete mechanism of the Imperial constitution; and, surprising as it may seem to us, it was a favourite notion of German lawyers that the relations of commonwealths, whether inside or outside the empire, ought to be regulated not by the _Jus Gentium_, but by the pure Roman jurisprudence, of which Cæsar was still the centre. This doctrine was less confidently repudiated in the outlying countries than we might have supposed antecedently; but, substantially, through the rest of Europe feudal subordinations furnished a substitute for a public law; and when those were undetermined or ambiguous, there lay behind, in theory at least, a supreme regulating force in the authority of the head of the Church. It is certain, however, that both feudal and ecclesiastical influences were rapidly decaying during the fifteenth, and even the fourteenth century; and if we closely examine the current pretexts of wars, and the avowed motives of alliances, it will be seen that, step by step with the displacement of the old principles, the views afterwards harmonised and consolidated by Ayala and Grotius were making considerable progress, though it was silent and but slow. Whether the fusion of all the sources of authority would ultimately have evolved a system of international relations, and whether that system would have exhibited material differences from the fabric of Grotius, is not now possible to decide, for as a matter of fact the Reformation annihilated all its potential elements except one. Beginning in Germany, it divided the princes of the empire by a gulf too broad to be bridged over by the Imperial supremacy, even if the Imperial superior had stood neutral. He, however, was forced to take colour with the church against the reformers; the Pope was, as a matter of course, in the same predicament; and thus the two authorities to whom belonged the office of mediation between combatants became themselves the chiefs of one great faction in the schism of the nations. Feudalism, already enfeebled and discredited as a principle of public relations, furnished no bond whatever which was stable enough to countervail the alliances of religion. In a condition, therefore, of public law which was little less than chaotic, those views of a state system to which the Roman jurisconsults were supposed to have given their sanction alone remained standing. The shape, the symmetry, and the prominence which they assumed in the hands of Grotius are known to every educated man; but the great marvel of the Treatise "De Jure Belli et Pacis," was its rapid, complete, and universal success. The horrors of the Thirty Years' War, the boundless terror and pity which the unbridled license of the soldiery was exciting, must, no doubt, be taken to explain that success in some measure, but they do not wholly account for it. Very little penetration into the ideas of that age is required to convince one that if the ground plan of the international edifice which was sketched in the great book of Grotius had not appeared to be theoretically perfect, it would have been discarded by jurists and neglected by statesmen and soldiers. It is obvious that the speculative perfection of the Grotian system is intimately connected with that conception of territorial sovereignty which we have been discussing. The theory of International Law assumes that commonwealths are, relatively to each other, in a state of nature; but the component atoms of a natural society must, by the fundamental assumption, be insulated and independent of each other. If there be a higher power connecting them, however slightly and occasionally by the claim of common supremacy, the very conception of a common superior introduces the notion of positive law, and excludes the idea of a law natural. It follows, therefore, that if the universal suzerainty of an Imperial head had been admitted even in bare theory, the labours of Grotius would have been idle. Nor is this the only point of junction between modern public law and those views of sovereignty of which I have endeavoured to describe the development. I have said that there are entire departments of international jurisprudence which consist of the Roman Law of Property. What then is the inference? It is, that if there had been no such change as I have described in the estimate of sovereignty--if sovereignty had not been associated with the proprietorship of a limited portion of the earth, had not, in other words, become territorial--three parts of the Grotian theory would have been incapable of application. CHAPTER V PRIMITIVE SOCIETY AND ANCIENT LAW The necessity of submitting the subject of jurisprudence to scientific treatment has never been entirely lost sight of in modern times, and the essays which the consciousness of this necessity has produced have proceeded from minds of very various calibre, but there is not much presumption, I think, in asserting that what has hitherto stood in the place of a science has for the most part been a set of guesses, those very guesses of the Roman lawyers which were examined in the two preceding chapters. A series of explicit statements, recognising and adopting these conjectural theories of a natural state, and of a system of principles congenial to it, has been continued with but brief interruption from the days of their inventors to our own. They appear in the annotations of the Glossators who founded modern jurisprudence, and in the writings of the scholastic jurists who succeeded them. They are visible in the dogmas of the canonists. They are thrust into prominence by those civilians of marvellous erudition, who flourished at the revival of ancient letters. Grotius and his successors invested them not less with brilliancy and plausibility than with practical importance. They may be read in the introductory chapters of our own Blackstone, who has transcribed them textually from Burlamaqui, and wherever the manuals published in the present day for the guidance of the student or the practitioner begin with any discussion of the first principles of law, it always resolves itself into a restatement of the Roman hypothesis. It is however from the disguises with which these conjectures sometimes clothe themselves, quite as much as from their native form, that we gain an adequate idea of the subtlety with which they mix themselves in human thought. The Lockeian theory of the origin of Law in a Social Compact scarcely conceals its Roman derivation, and indeed is only the dress by which the ancient views were rendered more attractive to a particular generation of the moderns; but on the other hand the theory of Hobbes on the same subject was purposely devised to repudiate the reality of a law of nature as conceived by the Romans and their disciples. Yet these two theories, which long divided the reflecting politicians of England into hostile camps, resemble each other strictly in their fundamental assumption of a non-historic, unverifiable, condition of the race. Their authors differed as to the characteristics of the præ-social state, and as to the nature of the abnormal action by which men lifted themselves out of it into that social organisation with which alone we are acquainted, but they agreed in thinking that a great chasm separated man in his primitive condition from man in society, and this notion we cannot doubt that they borrowed, consciously or unconsciously, from the Romans. If indeed the phenomena of law be regarded in the way in which these theorists regarded them--that is, as one vast complex whole--it is not surprising that the mind should often evade the task it has set to itself by falling back on some ingenious conjecture which (plausibly interpreted) will seem to reconcile everything, or else that it should sometimes abjure in despair the labour of systematization. From the theories of jurisprudence which have the same speculative basis as the Roman doctrine two of much celebrity must be excepted. The first of them is that associated with the great name of Montesquieu. Though there are some ambiguous expressions in the early part of the _Esprit des Lois_, which seem to show its writer's unwillingness to break quite openly with the views hitherto popular, the general drift of the book is certainly to indicate a very different conception of its subject from any which had been entertained before. It has often been noticed that, amidst the vast variety of examples which, in its immense width of survey, it sweeps together from supposed systems of jurisprudence, there is an evident anxiety to thrust into especial prominence those manners and institutions which astonish the civilised reader by their uncouthness, strangeness, or indecency. The inference constantly suggested is, that laws are the creatures of climate, local situation, accident, or imposture--the fruit of any causes except those which appear to operate with tolerable constancy. Montesquieu seems, in fact, to have looked on the nature of man as entirely plastic, as passively reproducing the impressions, and submitting implicitly to the impulses, which it receives from without. And here no doubt lies the error which vitiates his system as a system. He greatly underrates the stability of human nature. He pays little or no regard to the inherited qualities of the race, those qualities which each generation receives from its predecessors, and transmits but slightly altered to the generation which follows it. It is quite true, indeed, that no complete account can be given of social phenomena, and consequently of laws, till due allowance has been made for those modifying causes which are noticed in the _Esprit des Lois_; but their number and their force appear to have been overestimated by Montesquieu. Many of the anomalies which he parades have since been shown to rest on false report or erroneous construction, and of those which remain not a few prove the permanence rather than the variableness of man's nature, since they are relics of older stages of the race which have obstinately defied the influences that have elsewhere had effect. The truth is that the stable part of our mental, moral, and physical constitution is the largest part of it, and the resistance it opposes to change is such that, though the variations of human society in a portion of the world are plain enough, they are neither so rapid nor so extensive that their amount, character, and general direction cannot be ascertained. An approximation to truth may be all that is attainable with our present knowledge, but there is no reason for thinking that is so remote, or (what is the same thing) that it requires so much future correction, as to be entirely useless and uninstructive. The other theory which has been adverted to is the historical theory of Bentham. This theory which is obscurely (and, it might even be said, timidly) propounded in several parts of Bentham's works is quite distinct from that analysis of the conception of law which he commenced in the "Fragment on Government," and which was more recently completed by Mr. John Austin. The resolution of a law into a command of a particular nature, imposed under special conditions, does not affect to do more than protect us against a difficulty--a most formidable one certainly--of language. The whole question remains open as to the motives of societies in imposing these commands on themselves, as to the connection of these commands with each other, and the nature of their dependence on those which preceded them, and which they have superseded. Bentham suggests the answer that societies modify, and have always modified, their laws according to modifications of their views of general expediency. It is difficult to say that this proposition is false, but it certainly appears to be unfruitful. For that which seems expedient to a society, or rather to the governing part of it, when it alters a rule of law is surely the same thing as the object, whatever it may be, which it has in view when it makes the change. Expediency and the greatest good are nothing more than different names for the impulse which prompts the modification; and when we lay down expediency as the rule of change in law or opinion, all we get by the proposition is the substitution of an express term for a term which is necessarily implied when we say that a change takes place. There is such wide-spread dissatisfaction with existing theories of jurisprudence, and so general a conviction that they do not really solve the questions they pretend to dispose of, as to justify the suspicion that some line of inquiry necessary to a perfect result has been incompletely followed or altogether omitted by their authors. And indeed there is one remarkable omission with which all these speculations are chargeable, except perhaps those of Montesquieu. They take no account of what law has actually been at epochs remote from the particular period at which they made their appearance. Their originators carefully observed the institutions of their own age and civilisation, and those of other ages and civilisations with which they had some degree of intellectual sympathy, but, when they turned their attention to archaic states of society which exhibited much superficial difference from their own, they uniformly ceased to observe and began guessing. The mistake which they committed is therefore analogous to the error of one who, in investigating the laws of the material universe, should commence by contemplating the existing physical world as a whole, instead of beginning with the particles which are its simplest ingredients. One does not certainly see why such a scientific solecism should be more defensible in jurisprudence than in any other region of thought. It would seem antecedently that we ought to commence with the simplest social forms in a state as near as possible to their rudimentary condition. In other words, if we followed the course usual in such inquiries, we should penetrate as far up as we could in the history of primitive societies. The phenomena which early societies present us with are not easy at first to understand, but the difficulty of grappling with them bears no proportion to the perplexities which beset us in considering the baffling entanglement of modern social organisation. It is a difficulty arising from their strangeness and uncouthness, not from their number and complexity. One does not readily get over the surprise which they occasion when looked at from a modern point of view; but when that is surmounted they are few enough and simple enough. But even if they gave more trouble than they do, no pains would be wasted in ascertaining the germs out of which has assuredly been unfolded every form of moral restraint which controls our actions and shapes our conduct at the present moment. The rudiments of the social state, so far as they are known to us at all, are known through testimony of three sorts--accounts by contemporary observers of civilisations less advanced than their own, the records which particular races have preserved concerning their primitive history, and ancient law. The first kind of evidence is the best we could have expected. As societies do not advance concurrently, but at different rates of progress, there have been epochs at which men trained to habits of methodical observation have really been in a position to watch and describe the infancy of mankind. Tacitus made the most of such an opportunity; but the _Germany_, unlike most celebrated classical books, has not induced others to follow the excellent example set by its author, and the amount of this sort of testimony which we possess is exceedingly small. The lofty contempt which a civilised people entertains for barbarous neighbours has caused a remarkable negligence in observing them, and this carelessness has been aggravated at times by fear, by religious prejudice, and even by the use of these very terms--civilisation and barbarism--which convey to most persons the impression of a difference not merely in degree but in kind. Even the _Germany_ has been suspected by some critics of sacrificing fidelity to poignancy of contrast and picturesqueness of narrative. Other histories too, which have been handed down to us among the archives of the people to whose infancy they relate, have been thought distorted by the pride of race or by the religious sentiment of a newer age. It is important then to observe that these suspicions, whether groundless or rational, do not attach to a great deal of archaic law. Much of the old law which has descended to us was preserved merely because it was old. Those who practised and obeyed it did not pretend to understand it; and in some cases they even ridiculed and despised it. They offered no account of it except that it had come down to them from their ancestors. If we confine our attention, then, to those fragments of ancient institutions which cannot reasonably be supposed to have been tampered with, we are able to gain a clear conception of certain great characteristics of the society to which they originally belonged. Advancing a step further, we can apply our knowledge to systems of law which, like the Code of Menu, are as a whole of suspicious authenticity; and, using the key we have obtained, we are in a position to discriminate those portions of them which are truly archaic from those which have been affected by the prejudices, interests, or ignorance of the compiler. It will at least be acknowledged that, if the materials for this process are sufficient, and if the comparisons be accurately executed, the methods followed are as little objectionable as those which have led to such surprising results in comparative philology. The effect of the evidence derived from comparative jurisprudence is to establish that view of the primeval condition of the human race which is known as the Patriarchal Theory. There is no doubt, of course, that this theory was originally based on the Scriptural history of the Hebrew patriarchs in Lower Asia; but, as has been explained already, its connection with Scripture rather militated than otherwise against its reception as a complete theory, since the majority of the inquirers who till recently addressed themselves with most earnestness to the colligation of social phenomena, were either influenced by the strongest prejudice against Hebrew antiquities or by the strongest desire to construct their system without the assistance of religious records. Even now there is perhaps a disposition to undervalue these accounts, or rather to decline generalising from them, as forming part of the traditions of a Semitic people. It is to be noted, however, that the legal testimony comes nearly exclusively from the institutions of societies belonging to the Indo-European stock, the Romans, Hindoos, and Sclavonians supplying the greater part of it; and indeed the difficulty at the present stage of the inquiry, is to know where to stop, to say of what races of men it is _not_ allowable to lay down that the society in which they are united was originally organised on the patriarchal model. The chief lineaments of such a society, as collected from the early chapters in Genesis, I need not attempt to depict with any minuteness, both because they are familiar to most of us from our earliest childhood, and because, from the interest once attaching to the controversy which takes its name from the debate between Locke and Filmer, they fill a whole chapter, though not a very profitable one, in English literature. The points which lie on the surface of the history are these:--The eldest male parent--the eldest ascendant--is absolutely supreme in his household. His dominion extends to life and death, and is as unqualified over his children and their houses as over his slaves; indeed the relations of sonship and serfdom appear to differ in little beyond the higher capacity which the child in blood possesses of becoming one day the head of a family himself. The flocks and herds of the children are the flocks and herds of the father, and the possessions of the parent, which he holds in a representative rather than in a proprietary character, are equally divided at his death among his descendants in the first degree, the eldest son sometimes receiving a double share under the name of birthright, but more generally endowed with no hereditary advantage beyond an honorary precedence. A less obvious inference from the Scriptural accounts is that they seem to plant us on the traces of the breach which is first effected in the empire of the parent. The families of Jacob and Esau separate and form two nations; but the families of Jacob's children hold together and become a people. This looks like the immature germ of a state or commonwealth, and of an order of rights superior to the claims of family relation. If I were attempting for the more special purposes of the jurist to express compendiously the characteristics of the situation in which mankind disclose themselves at the dawn of their history, I should be satisfied to quote a few verses from the _Odyssee_ of Homer: [Greek: toisin d out agorai boulêphoroi oute themistes. * * * themisteuei de ekastos paidôn êd alochôn, oud allêlôn alegousin.] "They have neither assemblies for consultation nor _themistes_, but every one exercises jurisdiction over his wives and his children, and they pay no regard to one another." These lines are applied to the Cyclops, and it may not perhaps be an altogether fanciful idea when I suggest that the Cyclops is Homer's type of an alien and less advanced civilisation; for the almost physical loathing which a primitive community feels for men of widely different manners from its own usually expresses itself by describing them as monsters, such as giants, or even (which is almost always the case in Oriental mythology) as demons. However that may be, the verses condense in themselves the sum of the hints which are given us by legal antiquities. Men are first seen distributed in perfectly insulated groups, held together by obedience to the parent. Law is the parent's word, but it is not yet in the condition of those _themistes_ which were analysed in the first chapter of this work. When we go forward to the state of society in which these early legal conceptions show themselves as formed, we find that they still partake of the mystery and spontaneity which must have seemed to characterise a despotic father's commands, but that at the same time, inasmuch as they proceed from a sovereign, they presuppose a union of family groups in some wider organisation. The next question is, what is the nature of this union and the degree of intimacy which it involves? It is just here that archaic law renders us one of the greatest of its services and fills up a gap which otherwise could only have been bridged by conjecture. It is full, in all its provinces, of the clearest indications that society in primitive times was not what it is assumed to be at present, a collection of _individuals_. In fact, and in the view of the men who composed it, it was _an aggregation of families_. The contrast may be most forcibly expressed by saying that the _unit_ of an ancient society was the Family, of a modern society the Individual. We must be prepared to find in ancient law all the consequences of this difference. It is so framed as to be adjusted to a system of small independent corporations. It is therefore scanty, because it is supplemented by the despotic commands of the heads of households. It is ceremonious, because the transactions to which it pays regard resemble international concerns much more than the quick play of intercourse between individuals. Above all it has a peculiarity of which the full importance cannot be shown at present. It takes a view of _life_ wholly unlike any which appears in developed jurisprudence. Corporations _never die_, and accordingly primitive law considers the entities with which it deals, _i.e._ the patriarchal or family groups, as perpetual and inextinguishable. This view is closely allied to the peculiar aspect under which, in very ancient times, moral attributes present themselves. The moral elevation and moral debasement of the individual appear to be confounded with, or postponed to, the merits and offences of the group to which the individual belongs. If the community sins, its guilt is much more than the sum of the offences committed by its members; the crime is a corporate act, and extends in its consequences to many more persons than have shared in its actual perpetration. If, on the other hand, the individual is conspicuously guilty, it is his children, his kinsfolk, his tribesmen, or his fellow-citizens, who suffer with him, and sometimes for him. It thus happens that the ideas of moral responsibility and retribution often seem to be more clearly realised at very ancient than at more advanced periods, for, as the family group is immortal, and its liability to punishment indefinite, the primitive mind is not perplexed by the questions which become troublesome as soon as the individual is conceived as altogether separate from the group. One step in the transition from the ancient and simple view of the matter to the theological or metaphysical explanations of later days is marked by the early Greek notion of an inherited curse. The bequest received by his posterity from the original criminal was not a liability to punishment, but a liability to the commission of fresh offences which drew with them a condign retribution; and thus the responsibility of the family was reconciled with the newer phase of thought which limited the consequences of crime to the person of the actual delinquent. It would be a very simple explanation of the origin of society if we could base a general conclusion on the hint furnished us by the scriptural example already adverted to, and could suppose that communities began to exist wherever a family held together instead of separating at the death of its patriarchal chieftain. In most of the Greek states and in Rome there long remained the vestiges of an ascending series of groups out of which the State was at first constituted. The Family, House, and Tribe of the Romans may be taken as the type of them, and they are so described to us that we can scarcely help conceiving them as a system of concentric circles which have gradually expanded from the same point. The elementary group is the Family, connected by common subjection to the highest male ascendant. The aggregation of Families forms the Gens or House. The aggregation of Houses makes the Tribe. The aggregation of Tribes constitutes the Commonwealth. Are we at liberty to follow these indications, and to lay down that the commonwealth is a collection of persons united by common descent from the progenitor of an original family? Of this we may at least be certain, that all ancient societies regarded themselves as having proceeded from one original stock, and even laboured under an incapacity for comprehending any reason except this for their holding together in political union. The history of political ideas begins, in fact, with the assumption that kinship in blood is the sole possible ground of community in political functions; nor is there any of those subversions of feeling, which we term emphatically revolutions, so startling and so complete as the change which is accomplished when some other principle--such as that, for instance, of _local contiguity_--establishes itself for the first time as the basis of common political action. It may be affirmed then of early commonwealths that their citizens considered all the groups in which they claimed membership to be founded on common lineage. What was obviously true of the Family was believed to be true first of the House, next of the Tribe, lastly of the State. And yet we find that along with this belief, or, if we may use the word, this theory, each community preserved records or traditions which distinctly showed that the fundamental assumption was false. Whether we look to the Greek states, or to Rome, or to the Teutonic aristocracies in Ditmarsh which furnished Niebuhr with so many valuable illustrations, or to the Celtic clan associations, or to that strange social organisation of the Sclavonic Russians and Poles which has only lately attracted notice, everywhere we discover traces of passages in their history when men of alien descent were admitted to, and amalgamated with, the original brotherhood. Adverting to Rome singly, we perceive that the primary group, the Family, was being constantly adulterated by the practice of adoption, while stories seem to have been always current respecting the exotic extraction of one of the original Tribes and concerning a large addition to the houses made by one of the early kings. The composition of the state, uniformly assumed to be natural, was nevertheless known to be in great measure artificial. This conflict between belief or theory and notorious fact is at first sight extremely perplexing; but what it really illustrates is the efficiency with which Legal Fictions do their work in the infancy of society. The earliest and most extensively employed of legal fictions was that which permitted family relations to be created artificially, and there is none to which I conceive mankind to be more deeply indebted. If it had never existed, I do not see how any one of the primitive groups, whatever were their nature, could have absorbed another, or on what terms any two of them could have combined, except those of absolute superiority on one side and absolute subjection on the other. No doubt, when with our modern ideas we contemplate the union of independent communities, we can suggest a hundred modes of carrying it out, the simplest of all being that the individuals comprised in the coalescing groups shall vote or act together according to local propinquity; but the idea that a number of persons should exercise political rights in common simply because they happened to live within the same topographical limits was utterly strange and monstrous to primitive antiquity. The expedient which in those times commanded favour was that the incoming population should _feign themselves_ to be descended from the same stock as the people on whom they were engrafted; and it is precisely the good faith of this fiction, and the closeness with which it seemed to imitate reality, that we cannot now hope to understand. One circumstance, however, which it is important to recollect, is that the men who formed the various political groups were certainly in the habit of meeting together periodically, for the purpose of acknowledging and consecrating their association by common sacrifices. Strangers amalgamated with the brotherhood were doubtless admitted to these sacrifices; and when that was once done we can believe that it seemed equally easy, or not more difficult, to conceive them as sharing in the common lineage. The conclusion then which is suggested by the evidence is, not that all early societies were formed by descent from the same ancestor, but that all of them which had any permanence and solidity either were so descended or assumed that they were. An indefinite number of causes may have shattered the primitive groups, but wherever their ingredients recombined, it was on the model or principle of an association of kindred. Whatever were the fact, all thought, language, and law adjusted themselves to the assumption. But though all this seems to me to be established with reference to the communities with whose records we are acquainted, the remainder of their history sustains the position before laid down as to the essentially transient and terminable influence of the most powerful Legal Fictions. At some point of time--probably as soon as they felt themselves strong enough to resist extrinsic pressure--all these states ceased to recruit themselves by factitious extensions of consanguinity. They necessarily, therefore, became Aristocracies, in all cases where a fresh population from any cause collected around them which could put in no claim to community of origin. Their sternness in maintaining the central principle of a system under which political rights were attainable on no terms whatever except connection in blood, real or artificial, taught their inferiors another principle, which proved to be endowed with a far higher measure of vitality. This was the principle of _local contiguity_, now recognised everywhere as the condition of community in political functions. A new set of political ideas came at once into existence, which, being those of ourselves, our contemporaries, and in great measure of our ancestors, rather obscure our perception of the older theory which they vanquished and dethroned. The Family then is the type of an archaic society in all the modifications which it was capable of assuming; but the family here spoken of is not exactly the family as understood by a modern. In order to reach the ancient conception we must give to our modern ideas an important extension and an important limitation. We must look on the family as constantly enlarged by the absorption of strangers within its circle, and we must try to regard the fiction of adoption as so closely simulating the reality of kinship that neither law nor opinion makes the slightest difference between a real and an adoptive connection. On the other hand, the persons theoretically amalgamated into a family by their common descent are practically held together by common obedience to their highest living ascendant, the father, grandfather, or great-grandfather. The patriarchal authority of a chieftain is as necessary an ingredient in the notion of the family group as the fact (or assumed fact) of its having sprung from his loins; and hence we must understand that if there be any persons who, however truly included in the brotherhood by virtue of their blood-relationship, have nevertheless _de facto_ withdrawn themselves from the empire of its ruler, they are always, in the beginnings of law, considered as lost to the family. It is this patriarchal aggregate--the modern family thus cut down on one side and extended on the other--which meets us on the threshold of primitive jurisprudence. Older probably than the State, the Tribe, and the House, it left traces of itself on private law long after the House and the Tribe had been forgotten, and long after consanguinity had ceased to be associated with the composition of States. It will be found to have stamped itself on all the great departments of jurisprudence, and may be detected, I think, as the true source of many of their most important and most durable characteristics. At the outset, the peculiarities of law in its most ancient state lead us irresistibly to the conclusion that it took precisely the same view of the family group which is taken of individual men by the systems of rights and duties now prevalent throughout Europe. There are societies open to our observation at this very moment whose laws and usages can scarcely be explained unless they are supposed never to have emerged from this primitive condition; but in communities more fortunately circumstanced the fabric of jurisprudence fell gradually to pieces, and if we carefully observe the disintegration we shall perceive that it took place principally in those portions of each system which were most deeply affected by the primitive conception of the family. In one all-important instance, that of the Roman law, the change was effected so slowly, that from epoch to epoch we can observe the line and direction which it followed, and can even give some idea of the ultimate result to which it was tending. And, in pursuing this last inquiry, we need not suffer ourselves to be stopped by the imaginary barrier which separates the modern from the ancient world. For one effect of that mixture of refined Roman law with primitive barbaric usage, which is known to us by the deceptive name of feudalism, was to revive many features of archaic jurisprudence which had died out of the Roman world, so that the decomposition which had seemed to be over commenced again, and to some extent is still proceeding. On a few systems of law the family organisation of the earliest society has left a plain and broad mark in the life-long authority of the Father or other ancestor over the person and property of his descendants, an authority which we may conveniently call by its later Roman name of Patria Potestas. No feature of the rudimentary associations of mankind is deposed to by a greater amount of evidence than this, and yet none seems to have disappeared so generally and so rapidly from the usages of advancing communities. Gaius, writing under the Antonines, describes the institution as distinctively Roman. It is true that, had he glanced across the Rhine or the Danube to those tribes of barbarians which were exciting the curiosity of some among his contemporaries, he would have seen examples of patriarchal power in its crudest form; and in the far East a branch of the same ethnical stock from which the Romans sprang was repeating their Patria Potestas in some of its most technical incidents. But among the races understood to be comprised within the Roman empire, Gaius could find none which exhibited an institution resembling the Roman "Power of the Father," except only the Asiatic Galatæ. There are reasons, indeed, as it seems to me, why the direct authority of the ancestor should, in the greater number of progressive societies, very shortly assume humbler proportions than belonged to it in their earliest state. The implicit obedience of rude men to their parent is doubtless a primary fact, which it would be absurd to explain away altogether by attributing to them any calculation of its advantages; but, at the same time, if it is natural in the sons to obey the father, it is equally natural that they should look to him for superior strength or superior wisdom. Hence, when societies are placed under circumstances which cause an especial value to be attached to bodily and mental vigour, there is an influence at work which tends to confine the Patria Potestas to the cases where its possessor is actually skilful and strong. When we obtain our first glimpse of organised Hellenic society, it seems as if supereminent wisdom would keep alive the father's power in persons whose bodily strength had decayed; but the relations of Ulysses and Laertes in the _Odyssee_ appear to show that, where extraordinary valour and sagacity were united in the son, the father in the decrepitude of age was deposed from the headship of the family. In the mature Greek jurisprudence, the rule advances a few steps on the practice hinted at in the Homeric literature; and though very many traces of stringent family obligation remain, the direct authority of the parent is limited, as in European codes, to the nonage or minority of the children, or, in other words, to the period during which their mental and physical inferiority may always be presumed. The Roman law, however, with its remarkable tendency to innovate on ancient usage only just so far as the exigency of the commonwealth may require, preserves both the primeval institution and the natural limitation to which I conceive it to have been subject. In every relation of life in which the collective community might have occasion to avail itself of his wisdom and strength, for all purposes of counsel or of war, the filius familias, or Son under Power, was as free as his father. It was a maxim of Roman jurisprudence that the Patria Potestas did not extend to the Jus Publicum. Father and son voted together in the city, and fought side by side in the field; indeed, the son, as general, might happen to command the father, or, as magistrate, decide on his contracts and punish his delinquencies. But in all the relations created by Private Law, the son lived under a domestic despotism which, considering the severity it retained to the last, and the number of centuries through which it endured, constitutes one of the strangest problems in legal history. The Patria Potestas of the Romans, which is necessarily our type of the primeval paternal authority, is equally difficult to understand as an institution of civilised life, whether we consider its incidence on the person or its effects on property. It is to be regretted that a chasm which exists in its history cannot be more completely filled. So far as regards the person, the parent, when our information commences, has over his children the _jus vitæ necisque_, the power of life and death, and _à fortiori_ of uncontrolled corporal chastisement; he can modify their personal condition at pleasure; he can give a wife to his son; he can give his daughter in marriage; he can divorce his children of either sex; he can transfer them to another family by adoption; and he can sell them. Late in the Imperial period we find vestiges of all these powers, but they are reduced within very narrow limits. The unqualified right of domestic chastisement has become a right of bringing domestic offences under the cognisance of the civil magistrate; the privilege of dictating marriage has declined into a conditional veto; the liberty of selling has been virtually abolished, and adoption itself, destined to lose almost all its ancient importance in the reformed system of Justinian, can no longer be effected without the assent of the child transferred to the adoptive parentage. In short, we are brought very close to the verge of the ideas which have at length prevailed in the modern world. But between these widely distant epochs there is an interval of obscurity, and we can only guess at the causes which permitted the Patria Potestas to last as long as it did by rendering it more tolerable than it appears. The active discharge of the most important among the duties which the son owed to the state must have tempered the authority of his parent if they did not annul it. We can readily persuade ourselves that the paternal despotism could not be brought into play without great scandal against a man of full age occupying a high civil office. During the earlier history, however, such cases of practical emancipation would be rare compared with those which must have been created by the constant wars of the Roman republic. The military tribune and the private soldier who were in the field three-quarters of a year during the earlier contests, at a later period the proconsul in charge of a province, and the legionaries who occupied it, cannot have had practical reason to regard themselves as the slaves of a despotic master; and all these avenues of escape tended constantly to multiply themselves. Victories led to conquests, conquests to occupations; the mode of occupation by colonies was exchanged for the system of occupying provinces by standing armies. Each step in advance was a call for the expatriation of more Roman citizens and a fresh draft on the blood of the failing Latin race. We may infer, I think, that a strong sentiment in favour of the relaxation of the Patria Potestas had become fixed by the time that the pacification of the world commenced on the establishment of the Empire. The first serious blows at the ancient institution are attributed to the earlier Cæsars, and some isolated interferences of Trajan and Hadrian seem to have prepared the ground for a series of express enactments which, though we cannot always determine their dates, we know to have limited the father's powers on the one hand, and on the other to have multiplied facilities for their voluntary surrender. The older mode of getting rid of the Potestas, by effecting a triple sale of the son's person, is evidence, I may remark, of a very early feeling against the unnecessary prolongation of the powers. The rule which declared that the son should be free after having been three times sold by his father seems to have been originally meant to entail penal consequences on a practice which revolted even the imperfect morality of the primitive Roman. But even before the publication of the Twelve Tables it had been turned, by the ingenuity of the jurisconsults, into an expedient for destroying the parental authority wherever the father desired that it should cease. Many of the causes which helped to mitigate the stringency of the father's power over the persons of his children are doubtless among those which do not lie upon the face of history. We cannot tell how far public opinion may have paralysed an authority which the law conferred, or how far natural affection may have rendered it endurable. But though the powers over the _person_ may have been latterly nominal, the whole tenour of the extant Roman jurisprudence suggests that the father's rights over the son's _property_ were always exercised without scruple to the full extent to which they were sanctioned by law. There is nothing to astonish us in the latitude of these rights when they first show themselves. The ancient law of Rome forbade the Children under Power to hold property apart from their parent, or (we should rather say) never contemplated the possibility of their claiming a separate ownership. The father was entitled to take the whole of the son's acquisitions, and to enjoy the benefit of his contracts without being entangled in any compensating liability. So much as this we should expect from the constitution of the earliest Roman society, for we can hardly form a notion of the primitive family group unless we suppose that its members brought their earnings of all kinds into the common stock while they were unable to bind it by improvident individual engagements. The true enigma of the Patria Potestas does not reside here, but in the slowness with which these proprietary privileges of the parent were curtailed, and in the circumstance that, before they were seriously diminished, the whole civilised world was brought within their sphere. No innovation of any kind was attempted till the first years of the Empire, when the acquisitions of soldiers on service were withdrawn from the operation of the Patria Potestas, doubtless as part of the reward of the armies which had overthrown the free commonwealth. Three centuries afterwards the same immunity was extended to the earnings of persons who were in the civil employment of the state. Both changes were obviously limited in their application, and they were so contrived in technical form as to interfere as little as possible with the principle of Patria Potestas. A certain qualified and dependent ownership had always been recognised by the Roman law in the perquisites and savings which slaves and sons under power were not compelled to include in the household accounts, and the special name of this permissive property, Peculium, was applied to the acquisitions newly relieved from Patria Potestas, which were called in the case of soldiers Castrense Peculium, and Quasi-castrense Peculium in the case of civil servants. Other modifications of the parental privileges followed, which showed a less studious outward respect for the ancient principle. Shortly after the introduction of the Quasi-castrense Peculium, Constantine the Great took away the father's absolute control over property which his children had inherited from their mother, and reduced it to a _usufruct_, or life-interest. A few more changes of slight importance followed in the Western Empire, but the furthest point reached was in the East, under Justinian, who enacted that unless the acquisitions of the child were derived from the parent's own property, the parent's rights over them should not extend beyond enjoying their produce for the period of his life. Even this, the utmost relaxation of the Roman Patria Potestas, left it far ampler and severer than any analogous institution of the modern world. The earliest modern writers on jurisprudence remark that it was only the fiercer and ruder of the conquerors of the empire, and notably the nations of Sclavonic origin, which exhibited a Patria Potestas at all resembling that which was described in the Pandects and the Code. All the Germanic immigrants seem to have recognised a corporate union of the family under the _mund_, or authority of a patriarchal chief; but his powers are obviously only the relics of a decayed Patria Potestas, and fell far short of those enjoyed by the Roman father. The Franks are particularly mentioned as not having the Roman Institution, and accordingly the old French lawyers, even when most busily engaged in filling the interstices of barbarous custom with rules of Roman law, were obliged to protect themselves against the intrusion of the Potestas by the express maxim, _Puyssance de père en France n'a lieu_. The tenacity of the Romans in maintaining this relic of their most ancient condition is in itself remarkable, but it is less remarkable than the diffusion of the Potestas over the whole of a civilisation from which it had once disappeared. While the Castrense Peculium constituted as yet the sole exception to the father's power over property, and while his power over his children's persons was still extensive, the Roman citizenship, and with it the Patria Potestas, were spreading into every corner of the empire. Every African or Spaniard, every Gaul, Briton, or Jew, who received this honour by gift, purchase, or inheritance, placed himself under the Roman Law of Persons, and, though our authorities intimate that children born before the acquisition of citizenship could not be brought under Power against their will, children born after it and all ulterior descendants were on the ordinary footing of a Roman _filius familias_. It does not fall within the province of this treatise to examine the mechanism of the later Roman society, but I may be permitted to remark that there is little foundation for the opinion which represents the constitution of Antoninus Caracalla conferring Roman citizenship on the whole of his subjects as a measure of small importance. However we may interpret it, it must have enormously enlarged the sphere of the Patria Potestas, and it seems to me that the tightening of family relations which it effected is an agency which ought to be kept in view more than it has been, in accounting for the great moral revolution which was transforming the world. Before this branch of our subject is dismissed, it should be observed that the Paterfamilias was answerable for the delicts (or _torts_) of his Sons under Power. He was similarly liable for the torts of his slaves; but in both cases he originally possessed the singular privilege of tendering the delinquent's person in full satisfaction of the damage. The responsibility thus incurred on behalf of sons, coupled with the mutual incapacity of parent and Child under Power to sue one another, has seemed to some jurists to be best explained by the assumption of a "unity of person" between the Paterfamilias and the Filius-familias. In the chapter on Successions I shall attempt to show in what sense, and to what extent, this "unity" can be accepted as a reality. I can only say at present that these responsibilities of the Paterfamilias, and other legal phenomena which will be discussed hereafter, appear to me to point at certain _duties_ of the primitive Patriarchal chieftain which balanced his _rights_. I conceive that, if he disposed absolutely of the persons and fortune of his clansmen, this representative ownership was coextensive with a liability to provide for all members of the brotherhood out of the common fund. The difficulty is to throw ourselves out of our habitual associations sufficiently for conceiving the nature of his obligation. It was not a legal duty, for law had not yet penetrated into the precinct of the Family. To call it _moral_ is perhaps to anticipate the ideas belonging to a later stage of mental development; but the expression "moral obligation" is significant enough for our purpose, if we understand by it a duty semi-consciously followed and enforced rather by instinct and habit than by definite sanctions. The Patria Potestas, in its normal shape, has not been, and, as it seems to me, could not have been, a generally durable institution. The proof of its former universality is therefore incomplete so long as we consider it by itself; but the demonstration may be carried much further by examining other departments of ancient law which depend on it ultimately, but not by a thread of connection visible in all its parts or to all eyes. Let us turn for example to Kinship, or in other words, to the scale on which the proximity of relatives to each other is calculated in archaic jurisprudence. Here again it will be convenient to employ the Roman terms, Agnatic and Cognatic relationship. _Cognatic_ relationship is simply the conception of kinship familiar to modern ideas; it is the relationship arising through common descent from the same pair of married persons, whether the descent be traced through males or females. _Agnatic_ relationship is something very different: it excludes a number of persons whom we in our day should certainly consider of kin to ourselves, and it includes many more whom we should never reckon among our kindred. It is in truth the connection existing between the members of the Family, conceived as it was in the most ancient times. The limits of this connection are far from conterminous with those of modern relationship. Cognates then are all those persons who can trace their blood to a single ancestor and ancestress; or, if we take the strict technical meaning of the word in Roman law, they are all who trace their blood to the legitimate marriage of a common pair. "Cognation" is therefore a relative term, and the degree of connection in blood which it indicates depends on the particular marriage which is selected as the commencement of the calculation. If we begin with the marriage of father and mother, Cognation will only express the relationship of brothers and sisters; if we take that of the grandfather and grandmother, then uncles, aunts, and their descendants will also be included in the notion of Cognation, and following the same process a larger number of Cognates may be continually obtained by choosing the starting point higher and higher up in the line of ascent. All this is easily understood by a modern; but who are the Agnates? In the first place, they are all the Cognates who trace their connection exclusively through males. A table of Cognates is, of course, formed by taking each lineal ancestor in turn and including all his descendants of both sexes in the tabular view; if then, in tracing the various branches of such a genealogical table or tree, we stop whenever we come to the name of a female and pursue that particular branch or ramification no further, all who remain after the descendants of women have been excluded are Agnates, and their connection together is Agnatic Relationship. I dwell a little on the process which is practically followed in separating them from the Cognates, because it explains a memorable legal maxim, "Mulier est finis familiæ"--a woman is the terminus of the family. A female name closes the branch or twig of the genealogy in which it occurs. None of the descendants of a female are included in the primitive notion of family relationship. If the system of archaic law at which we are looking be one which admits Adoption, we must add to the Agnate thus obtained all persons, male or female, who have been brought into the Family by the artificial extension of its boundaries. But the descendants of such persons will only be Agnates, if they satisfy the conditions which have just been described. What then is the reason of this arbitrary inclusion and exclusion? Why should a conception of Kinship, so elastic as to include strangers brought into the family by adoption, be nevertheless so narrow as to shut out the descendants of a female member? To solve these questions, we must recur to the Patria Potestas. The foundation of Agnation is not the marriage of Father and Mother, but the authority of the Father. All persons are Agnatically connected together who are under the same Paternal Power, or who have been under it, or who might have been under it if their lineal ancestor had lived long enough to exercise his empire. In truth, in the primitive view, Relationship is exactly limited by Patria Potestas. Where the Potestas begins, Kinship begins; and therefore adoptive relatives are among the kindred. Where the Potestas ends, Kinship ends; so that a son emancipated by his father loses all rights of Agnation. And here we have the reason why the descendants of females are outside the limits of archaic kinship. If a woman died unmarried, she could have no legitimate descendants. If she married, her children fell under the Patria Potestas, not of her Father, but of her Husband, and thus were lost to her own family. It is obvious that the organisation of primitive societies would have been confounded, if men had called themselves relatives of their mother's relatives. The inference would have been that a person might be subject to two distinct Patriæ Potestates; but distinct Patriæ Potestates implied distinct jurisdictions, so that anybody amenable to two of them at the same time would have lived under two different dispensations. As long as the Family was an imperium in imperio, a community within the commonwealth, governed by its own institutions of which the parent was the source, the limitation of relationship to the Agnates was a necessary security against a conflict of laws in the domestic forum. The Parental Powers proper are extinguished by the death of the Parent, but Agnation is as it were a mould which retains their imprint after they have ceased to exist. Hence comes the interest of Agnation for the inquirer into the history of jurisprudence. The Powers themselves are discernible in comparatively few monuments of ancient law, but Agnatic Relationship, which implies their former existence, is discoverable almost everywhere. There are few indigenous bodies of law belonging to communities of the Indo-European stock, which do not exhibit peculiarities in the most ancient part of their structure which are clearly referable to Agnation. In Hindoo law, for example, which is saturated with the primitive notions of family dependency, kinship is entirely Agnatic, and I am informed that in Hindoo genealogies the names of women are generally omitted altogether. The same view of relationship pervades so much of the laws of the races who overran the Roman Empire as appears to have really formed part of their primitive usage, and we may suspect that it would have perpetuated itself even more than it has in modern European jurisprudence, if it had not been for the vast influence of the later Roman law on modern thought. The Prætors early laid hold on Cognation as the _natural_ form of kinship, and spared no pains in purifying their system from the older conception. Their ideas have descended to us, but still traces of Agnation are to be seen in many of the modern rules of succession after death. The exclusion of females and their children from governmental functions, commonly attributed to the usage of the Salian Franks, has certainly an agnatic origin, being descended from the ancient German rule of succession to allodial property. In Agnation too is to be sought the explanation of that extraordinary rule of English Law, only recently repealed, which prohibited brothers of the half-blood from succeeding to one another's lands. In the Customs of Normandy, the rule applies to _uterine_ brothers only, that is, to brothers by the same mother but not by the same father; and, limited in this way, it is a strict deduction from the system of Agnation, under which uterine brothers are no relations at all to one another. When it was transplanted to England, the English judges, who had no clue to its principle, interpreted it as a general prohibition against the succession of the half-blood, and extended it to _consanguineous_ brothers, that is to sons of the same father by different wives. In all the literature which enshrines the pretended philosophy of law, there is nothing more curious than the pages of elaborate sophistry in which Blackstone attempts to explain and justify the exclusion of the half-blood. It may be shown, I think, that the Family, as held together by the Patria Potestas, is the nidus out of which the entire Law of Persons has germinated. Of all the chapters of that Law the most important is that which is concerned with the status of Females. It has just been stated that Primitive Jurisprudence, though it does not allow a Woman to communicate any rights of Agnation to her descendants, includes herself nevertheless in the Agnatic bond. Indeed, the relation of a female to the family in which she was born is much stricter, closer, and more durable than that which unites her male kinsmen. We have several times laid down that early law takes notice of Families only; this is the same thing as saying that it only takes notice of persons exercising Patria Potestas, and accordingly the only principle on which it enfranchises a son or grandson at the death of his Parent, is a consideration of the capacity inherent in such son or grandson to become himself the head of a new family and the root of a new set of Parental Powers. But a woman, of course, has no capacity of the kind, and no title accordingly to the liberation which it confers. There is therefore a peculiar contrivance of archaic jurisprudence for retaining her in the bondage of the Family for life. This is the institution known to the oldest Roman law as the Perpetual Tutelage of Women, under which a Female, though relieved from her Parent's authority by his decease, continues subject through life to her nearest male relations as her Guardians. Perpetual Guardianship is obviously neither more nor less than an artificial prolongation of the Patria Potestas, when for other purposes it has been dissolved. In India, the system survives in absolute completeness, and its operation is so strict that a Hindoo Mother frequently becomes the ward of her own sons. Even in Europe, the laws of the Scandinavian nations respecting women preserved it until quite recently. The invaders of the Western Empire had it universally among their indigenous usages, and indeed their ideas on the subject of Guardianship, in all its forms, were among the most retrogressive of those which they introduced into the Western world. But from the mature Roman jurisprudence it had entirely disappeared. We should know almost nothing about it, if we had only the compilations of Justinian to consult; but the discovery of the manuscript of Gaius discloses it to us at a most interesting epoch, just when it had fallen into complete discredit and was verging on extinction. The great jurisconsult himself scouts the popular apology offered for it in the mental inferiority of the female sex, and a considerable part of his volume is taken up with descriptions of the numerous expedients, some of them displaying extraordinary ingenuity, which the Roman lawyers had devised for enabling Women to defeat the ancient rules. Led by their theory of Natural Law, the jurisconsults had evidently at this time assumed the equality of the sexes as a principle of their code of equity. The restrictions which they attacked were, it is to be observed, restrictions on the disposition of property, for which the assent of the woman's guardians was still formally required. Control of her person was apparently quite obsolete. Ancient Law subordinates the woman to her blood-relations, while a prime phenomenon of modern jurisprudence has been her subordination to her husband. The history of the change is remarkable. It begins far back in the annals of Rome. Anciently, there were three modes in which marriage might be contracted according to Roman usage, one involving a religious solemnity, the other two the observance of certain secular formalities. By the religious marriage or _Confarreation_; by the higher form of civil marriage, which was called _Coemption_; and by the lower form, which was termed _Usus_, the Husband acquired a number of rights over the person and property of his wife, which were on the whole in excess of such as are conferred on him in any system of modern jurisprudence. But in what capacity did he acquire them? Not as _Husband_, but as _Father_. By the Confarreation, Coemption, and Usus, the woman passed _in manum viri_, that is, in law she became the _Daughter_ of her husband. She was included in his Patria Potestas. She incurred all the liabilities springing out of it while it subsisted, and surviving it when it had expired. All her property became absolutely his, and she was retained in tutelage after his death to the guardian whom he had appointed by will. These three ancient forms of marriage fell, however, gradually into disuse, so that, at the most splendid period of Roman greatness, they had almost entirely given place to a fashion of wedlock--old apparently, but not hitherto considered reputable--which was founded on a modification of the lower form of civil marriage. Without explaining the technical mechanism of the institution now generally popular, I may describe it as amounting in law to little more than a temporary deposit of the woman by her family. The rights of the family remained unimpaired, and the lady continued in the tutelage of guardians whom her parents had appointed and whose privileges of control overrode, in many material respects, the inferior authority of her husband. The consequence was that the situation of the Roman female, whether married or unmarried, became one of great personal and proprietary independence, for the tendency of the later law, as I have already hinted, was to reduce the power of the guardian to a nullity, while the form of marriage in fashion conferred on the husband no compensating superiority. But Christianity tended somewhat from the very first to narrow this remarkable liberty. Led at first by justifiable disrelish for the loose practices of the decaying heathen world, but afterwards hurried on by a passion of asceticism, the professors of the new faith looked with disfavour on a marital tie which was in fact the laxest the Western world has seen. The latest Roman law, so far as it is touched by the constitutions of the Christian Emperors, bears some marks of a reaction against the liberal doctrines of the great Antonine jurisconsults. And the prevalent state of religious sentiment may explain why it is that modern jurisprudence, forged in the furnace of barbarian conquest, and formed by the fusion of Roman jurisprudence with patriarchal usage, has absorbed, among its rudiments, much more than usual of those rules concerning the position of women which belong peculiarly to an imperfect civilisation. During the troubled era which begins modern history, and while the laws of the Germanic and Sclavonic immigrants remained superposed like a separate layer above the Roman jurisprudence of their provincial subjects, the women of the dominant races are seen everywhere under various forms of archaic guardianship, and the husband who takes a wife from any family except his own pays a money-price to her relations for the tutelage which they surrender to him. When we move onwards, and the code of the middle ages has been formed by the amalgamation of the two systems, the law relating to women carries the stamp of its double origin. The principle of the Roman jurisprudence is so far triumphant that unmarried females are generally (though there are local exceptions to the rule) relieved from the bondage of the family; but the archaic principle of the barbarians has fixed the position of married women, and the husband has drawn to himself in his marital character the powers which had once belonged to his wife's male kindred, the only difference being that he no longer purchases his privileges. At this point therefore the modern law of Western and Southern Europe begins to be distinguished by one of its chief characteristics, the comparative freedom it allows to unmarried women and widows, the heavy disabilities it imposes on wives. It was very long before the subordination entailed on the other sex by marriage was sensibly diminished. The principal and most powerful solvent of the revived barbarism of Europe was always the codified jurisprudence of Justinian, wherever it was studied with that passionate enthusiasm which it seldom failed to awaken. It covertly but most efficaciously undermined the customs which it pretended merely to interpret. But the Chapter of law relating to married women was for the most part read by the light, not of Roman, but of Canon Law, which in no one particular departs so widely from the spirit of the secular jurisprudence as in the view it takes of the relations created by marriage. This was in part inevitable, since no society which preserves any tincture of Christian institution is likely to restore to married women the personal liberty conferred on them by the middle Roman law, but the proprietary disabilities of married females stand on quite a different basis from their personal incapacities, and it is by keeping alive and consolidating the former that the expositors of the Canon Law have deeply injured civilisation. There are many vestiges of a struggle between the secular and ecclesiastical principles, but the Canon Law nearly everywhere prevailed. In some of the French provinces married women, of a rank below nobility, obtained all the powers of dealing with property which Roman jurisprudence had allowed, and this local law has been largely followed by the Code Napoléon; but the state of the Scottish law shows that scrupulous deference to the doctrines of the Roman jurisconsults did not always extend to mitigating the disabilities of wives. The systems however which are least indulgent to married women are invariably those which have followed the Canon Law exclusively, or those which, from the lateness of their contact with European civilisation, have never had their archaisms weeded out. The Scandinavian laws, harsh till lately to all females, are still remarkable for their severity to wives. And scarcely less stringent in the proprietary incapacities it imposes is the English Common Law, which borrows far the greatest number of its fundamental principles from the jurisprudence of the Canonists. Indeed, the part of the Common Law which prescribes the legal situation of married women may serve to give an Englishman clear notions of the great institution which has been the principal subject of this chapter. I do not know how the operation and nature of the ancient Patria Potestas can be brought so vividly before the mind as by reflecting on the prerogatives attached to the husband by the pure English Common Law, and by recalling the rigorous consistency with which the view of a complete legal subjection on the part of the wife is carried by it, where it is untouched by equity or statutes, through every department of rights, duties, and remedies. The distance between the eldest and latest Roman law on the subject of Children under Power may be considered as equivalent to the difference between the Common Law and the jurisprudence of the Court of Chancery in the rules which they respectively apply to wives. If we were to lose sight of the true origin of Guardianship in both its forms and were to employ the common language on these topics, we should find ourselves remarking that, while the Tutelage of Women is an instance in which systems of archaic law push to an extravagant length the fiction of suspended rights, the rules which they lay down for the Guardianship of Male Orphans are an example of a fault in precisely the opposite direction. All such systems terminate the Tutelage of males at an extraordinary early period. Under the ancient Roman law, which may be taken as their type, the son who was delivered from Patria Potestas by the death of his Father or Grandfather remained under guardianship till an epoch which for general purposes may be described as arriving with his fifteenth year; but the arrival of that epoch placed him at once in the full enjoyment of personal and proprietary independence. The period of minority appears therefore to have been as unreasonably short as the duration of the disabilities of women was preposterously long. But, in point of fact, there was no element either of excess or of shortcoming in the circumstances which gave their original form to the two kinds of guardianship. Neither the one nor the other of them was based on the slightest consideration of public or private convenience. The guardianship of male orphans was no more designed originally to shield them till the arrival of years of discretion than the tutelage of women was intended to protect the other sex against its own feebleness. The reason why the death of the father delivered the son from the bondage of the family was the son's capacity for becoming himself the head of a new family and the founder of a new Patria Potestas; no such capacity was possessed by the woman and therefore she was _never_ enfranchised. Accordingly the Guardianship of Male Orphans was a contrivance for keeping alive the semblance of subordination to the family of the Parent, up to the time when the child was supposed capable of becoming a parent himself. It was a prolongation of the Patria Potestas up to the period of bare physical manhood. It ended with puberty, for the rigour of the theory demanded that it should do so. Inasmuch, however, as it did not profess to conduct the orphan ward to the age of intellectual maturity or fitness for affairs, it was quite unequal to the purposes of general convenience; and this the Romans seem to have discovered at a very early stage of their social progress. One of the very oldest monuments of Roman legislation is the _Lex Lætoria_ or _Plætoria_ which placed all free males who were of full years and rights under the temporary control of a new class of guardians, called _Curatores_, whose sanction was required to validate their acts or contracts. The twenty-sixth year of the young man's age was the limit of this statutory supervision; and it is exclusively with reference to the age of twenty-five that the terms "majority" and "minority" are employed in Roman law. _Pupilage_ or _wardship_ in modern jurisprudence had adjusted itself with tolerable regularity to the simple principle of protection to the immaturity of youth both bodily and mental. It has its natural termination with years of discretion. But for protection against physical weakness and for protection against intellectual incapacity, the Romans looked to two different institutions, distinct both in theory and design. The ideas attendant on both are combined in the modern idea of guardianship. The Law of Persons contains but one other chapter which can be usefully cited for our present purpose. The legal rules by which systems of nature jurisprudence regulate the connection of _Master and Slave_, present no very distinct traces of the original condition common to ancient societies. But there are reasons for this exception. There seems to be something in the institution of Slavery which has at all times either shocked or perplexed mankind, however little habituated to reflection, and however slightly advanced in the cultivation of its moral instincts. The compunction which ancient communities almost unconsciously experienced appears to have always resulted in the adoption of some imaginary principle upon which a defence, or at least a rationale, of slavery could be plausibly founded. Very early in their history the Greeks explained the institution as grounded on the intellectual inferiority of certain races and their consequent natural aptitude for the servile condition. The Romans, in a spirit equally characteristic, derived it from a supposed agreement between the victor and the vanquished in which the first stipulated for the perpetual services of his foe; and the other gained in consideration the life which he had legitimately forfeited. Such theories were not only unsound but plainly unequal to the case for which they affected to account. Still they exercised powerful influence in many ways. They satisfied the conscience of the Master. They perpetuated and probably increased the debasement of the Slave. And they naturally tended to put out of sight the relation in which servitude had originally stood to the rest of the domestic system. The relation, though not clearly exhibited, is casually indicated in many parts of primitive law, and more particularly in the typical system--that of ancient Rome. Much industry and some learning have been bestowed in the United States of America on the question whether the Slave was in the early stages of society a recognised member of the Family. There is a sense in which an affirmative answer must certainly be given. It is clear, from the testimony both of ancient law and of many primeval histories, that the Slave might under certain conditions be made the Heir, or Universal Successor, of the Master, and this significant faculty, as I shall explain in the Chapter on Succession, implies that the government and representation of the Family might, in a particular state of circumstances, devolve on the bondman. It seems, however, to be assumed in the American arguments on the subject that, if we allow Slavery to have been a primitive Family institution, the acknowledgment is pregnant with an admission of the moral defensibility of Negro-servitude at the present moment. What then is meant by saying that the Slave was originally included in the Family? Not that his situation may not have been the fruit of the coarsest motives which can actuate man. The simple wish to use the bodily powers of another person as a means of ministering to one's own ease or pleasure is doubtless the foundation of Slavery, and as old as human nature. When we speak of the Slave as anciently included in the Family, we intend to assert nothing as to the motives of those who brought him into it or kept him there; we merely imply that the tie which bound him to his master was regarded as one of the same general character with that which united every other member of the group to its chieftain. This consequence is, in fact, carried in the general assertion already made that the primitive ideas of mankind were unequal to comprehending any basis of the connection _inter se_ of individuals, apart from the relations of family. The Family consisted primarily of those who belonged to it by consanguinity and next of those who had been engrafted on it by adoption; but there was still a third class of persons who were only joined to it by common subjection to its head, and these were the Slaves. The born and the adopted subjects of the chief were raised above the Slave by the certainty that in the ordinary course of events they would be relieved from bondage and entitled to exercise powers of their own; but that the inferiority of the Slave was not such as to place him outside the pale of the Family, or such as to degrade him to the footing of inanimate property, is clearly proved, I think, by the many traces which remain of his ancient capacity for inheritance in the last resort. It would, of course, be unsafe in the highest degree to hazard conjectures how far the lot of the Slave was mitigated, in the beginnings of society, by having a definite place reserved to him in the empire of the Father. It is, perhaps, more probable that the son was practically assimilated to the Slave, than that the Slave shared any of the tenderness which in later times was shown to the son. But it may be asserted with some confidence of advanced and matured codes that, wherever servitude is sanctioned, the Slave has uniformly greater advantages under systems which preserve some memento of his earlier condition than under those which have adopted some other theory of his civil degradation. The point of view from which jurisprudence regards the Slave is always of great importance to him. The Roman law was arrested in its growing tendency to look upon him more and more as an article of property by the theory of the Law of Nature; and hence it is that, wherever servitude is sanctioned by institutions which have been deeply affected by Roman jurisprudence, the servile condition is never intolerably wretched. There is a great deal of evidence that in those American States which have taken the highly Romanised code of Louisiana as the basis of their jurisprudence, the lot and prospects of the negro-population are better in many material respects than under institutions founded on the English Common Law, which, as recently interpreted, has no true place for the Slave, and can only therefore regard him as a chattel. We have now examined all parts of the ancient Law of Persons which fall within the scope of this treatise, and the result of the inquiry is, I trust, to give additional definiteness and precision to our view of the infancy of jurisprudence. The Civil laws of States first make their appearance as the Themistes of a patriarchal sovereign, and we can now see that these Themistes are probably only a developed form of the irresponsible commands which, in a still earlier condition of the race, the head of each isolated household may have addressed to his wives, his children, and his slaves. But, even after the State has been organised, the laws have still an extremely limited application. Whether they retain their primitive character as Themistes, or whether they advance to the condition of Customs or Codified Texts, they are binding not on individuals, but on Families. Ancient jurisprudence, if a perhaps deceptive comparison may be employed, may be likened to International Law, filling nothing, as it were, excepting the interstices between the great groups which are the atoms of society. In a community so situated, the legislation of assemblies and the jurisdiction of Courts reaches only to the heads of families, and to every other individual the rule of conduct is the law of his home, of which his Parent is the legislator. But the sphere of civil law, small at first, tends steadily to enlarge itself. The agents of legal change, Fictions, Equity, and Legislation, are brought in turn to bear on the primeval institutions, and at every point of the progress, a greater number of personal rights and a larger amount of property are removed from the domestic forum to the cognisance of the public tribunals. The ordinances of the government obtain gradually the same efficacy in private concerns as in matters of state, and are no longer liable to be overridden by the behests of a despot enthroned by each hearthstone. We have in the annals of Roman law a nearly complete history of the crumbling away of an archaic system, and of the formation of new institutions from the recombined materials, institutions some of which descended unimpaired to the modern world, while others, destroyed or corrupted by contact with barbarism in the dark ages, had again to be recovered by mankind. When we leave this jurisprudence at the epoch of its final reconstruction by Justinian, few traces of archaism can be discovered in any part of it except in the single article of the extensive powers still reserved to the living Parent. Everywhere else principles of convenience, or of symmetry, or of simplification--new principles at any rate--have usurped the authority of the jejune considerations which satisfied the conscience of ancient times. Everywhere a new morality has displaced the canons of conduct and the reasons of acquiescence which were in unison with the ancient usages, because in fact they were born of them. The movement of the progressive societies has been uniform in one respect. Through all its course it has been distinguished by the gradual dissolution of family dependency and the growth of individual obligation in its place. The Individual is steadily substituted for the Family, as the unit of which civil laws take account. The advance has been accomplished at varying rates of celerity, and there are societies not absolutely stationary in which the collapse of the ancient organisation can only be perceived by careful study of the phenomena they present. But, whatever its pace, the change has not been subject to reaction or recoil, and apparent retardations will be found to have been occasioned through the absorption of archaic ideas and customs from some entirely foreign source. Nor is it difficult to see what is the tie between man and man which replaces by degrees those forms of reciprocity in rights and duties which have their origin in the Family. It is Contract. Starting, as from one terminus of history, from a condition of society in which all the relations of Persons are summed up in the relations of Family, we seem to have steadily moved towards a phase of social order in which all these relations arise from the free agreement of Individuals. In Western Europe the progress achieved in this direction has been considerable. Thus the status of the Slave has disappeared--it has been superseded by the contractual relation of the servant to his master. The status of the Female under Tutelage, if the tutelage be understood of persons other than her husband, has also ceased to exist; from her coming of age to her marriage all the relations she may form are relations of contract. So too the status of the Son under Power has no true place in law of modern European societies. If any civil obligation binds together the Parent and the child of full age, it is one to which only contract gives its legal validity. The apparent exceptions are exceptions of that stamp which illustrate the rule. The child before years of discretion, the orphan under guardianship, the adjudged lunatic, have all their capacities and incapacities regulated by the Law of Persons. But why? The reason is differently expressed in the conventional language of different systems, but in substance it is stated to the same effect by all. The great majority of Jurists are constant to the principle that the classes of persons just mentioned are subject to extrinsic control on the single ground that they do not possess the faculty of forming a judgment on their own interests; in other words, that they are wanting in the first essential of an engagement by Contract. The word Status may be usefully employed to construct a formula expressing the law of progress thus indicated, which, whatever be its value, seems to me to be sufficiently ascertained. All the forms of Status taken notice of in the Law of Persons were derived from, and to some extent are still coloured by, the powers and privileges anciently residing in the Family. If then we employ Status, agreeably with the usage of the best writers, to signify these personal conditions only, and avoid applying the term to such conditions as are the immediate or remote result of agreement, we may say that the movement of the progressive societies has hitherto been a movement _from Status to Contract_. CHAPTER VI THE EARLY HISTORY OF TESTAMENTARY SUCCESSION If an attempt were made to demonstrate in England the superiority of the historical method of investigation to the modes of inquiry concerning Jurisprudence which are in fashion among us, no department of Law would better serve as an example than Testaments or Wills. Its capabilities it owes to its great length and great continuity. At the beginning of its history we find ourselves in the very infancy of the social state, surrounded by conceptions which it requires some effort of mind to realise in their ancient form; while here, at the other extremity of its line of progress, we are in the midst of legal notions which are nothing more than those same conceptions disguised by the phraseology and by the habits of thought which belong to modern times, and exhibiting therefore a difficulty of another kind, the difficulty of believing that ideas which form part of our everyday mental stock can really stand in need of analysis and examination. The growth of the Law of Wills between these extreme points can be traced with remarkable distinctness. It was much less interrupted at the epoch of the birth of feudalism, than the history of most other branches of law. It is, indeed, true that, as regards all provinces of jurisprudence, the break caused by the division between ancient and modern history, or in other words by the dissolution of the Roman empire, has been very greatly exaggerated. Indolence has disinclined many writers to be at the pains of looking for threads of connection entangled and obscured by the confusions of six troubled centuries, while other inquirers, not naturally deficient in patience and industry, have been misled by idle pride in the legal system of their country, and by consequent unwillingness to confess its obligations to the jurisprudence of Rome. But these unfavourable influences have had comparatively little effect on the province of Testamentary Law. The barbarians were confessedly strangers to any such conception as that of a Will. The best authorities agree that there is no trace of it in those parts of their written codes which comprise the customs practised by them in their original seats, and in their subsequent settlements on the edge of the Roman empire. But soon after they became mixed with the population of the Roman provinces they appropriated from the Imperial jurisprudence the conception of a Will, at first in part, and afterwards in all its integrity. The influence of the Church had much to do with this rapid assimilation. The ecclesiastical power had very early succeeded to those privileges of custody and registration of Testaments which several of the heathen temples had enjoyed; and even thus early it was almost exclusively to private bequests that the religious foundations owed their temporal possessions. Hence it is that the decrees of the earliest Provincial Councils perpetually contain anathemas against those who deny the sanctity of Wills. Here, in England, Church influence was certainly chief among the causes which by universal acknowledgment have prevented that discontinuity in the history of Testamentary Law, which is sometimes believed to exist in the history of other provinces of Jurisprudence. The jurisdiction over one class of Wills was delegated to the Ecclesiastical Courts, which applied to them, though not always intelligently, the principles of Roman jurisprudence; and, though neither the courts of Common Law nor the Court of Chancery owned any positive obligation to follow the Ecclesiastical tribunals, they could not escape the potent influence of a system of settled rules in course of application by their side. The English law of testamentary succession to personalty has become a modified form of the dispensation under which the inheritances of Roman citizens were administered. It is not difficult to point out the extreme difference of the conclusions forced on us by the historical treatment of the subject from those to which we are conducted when, without the help of history, we merely strive to analyse our _primâ facie_ impressions. I suppose there is nobody who, starting from the popular or even the legal conception of a Will, would not imagine that certain qualities are necessarily attached to it. He would say, for example, that a Will necessarily takes effect _at death only_--that it is _secret_, not known as a matter of course to persons taking interests under its provisions--that it is _revocable_, _i.e._ always capable of being superseded by a new act of testation. Yet I shall be able to show that there was a time when none of these characteristics belonged to a Will. The Testaments from which our Wills are directly descended at first took effect immediately on their execution; they were not secret; they were not revocable. Few legal agencies are, in fact, the fruit of more complex historical agencies than that by which a man's written intentions control the posthumous disposition of his goods. Testaments very slowly and gradually gathered round them the qualities I have mentioned; and they did this from causes and under pressure of events which may be called casual, or which at any rate have no interest for us at present, except so far as they have affected the history of law. At a time when legal theories were more abundant than at present--theories which, it is true, were for the most part gratuitous and premature enough, but which nevertheless rescued jurisprudence from that worse and more ignoble condition, not unknown to ourselves, in which nothing like a generalisation is aspired to, and law is regarded as a mere empirical pursuit--it was the fashion to explain the ready and apparently intuitive perception which we have of certain qualities in a Will, by saying that they were natural to it, or, as the phrase would run in full, attached to it by the Law of Nature. Nobody, I imagine, would affect to maintain such a doctrine, when once it was ascertained that all these characteristics had their origin within historical memory; at the same time, vestiges of the theory of which the doctrine is an offshoot, linger in forms of expression which we all of us use and perhaps scarcely know how to dispense with. I may illustrate this by mentioning a position common in the legal literature of the seventeenth century. The jurists of that period very commonly assert that the power of Testation itself is of Natural Law, that it is a right conferred by the Law of Nature. Their teaching, though all persons may not at once see the connection, is in substance followed by those who affirm that the right of dictating or controlling the posthumous disposal of property is a necessary or natural consequence of the proprietary rights themselves. And every student of technical jurisprudence must have come across the same view, clothed in the language of a rather different school, which, in its rationale of this department of law, treats succession _ex testamento_ as the mode of devolution which the property of deceased persons ought primarily to follow, and then proceeds to account for succession _ab intestato_ as the incidental provision of the lawgiver for the discharge of a function which was only left unperformed through the neglect or misfortune of the deceased proprietor. These opinions are only expanded forms of the more compendious doctrine that Testamentary disposition is an institution of the Law of Nature. It is certainly never quite safe to pronounce dogmatically as to the range of association embraced by modern minds, when they reflect on Nature and her Law; but I believe that most persons, who affirm that the Testamentary Power is of Natural Law, may be taken to imply either that, as a matter of fact, it is universal, or that nations are prompted to sanction it by an original instinct and impulse. With respect to the first of these positions, I think that, when explicitly set forth, it can never be seriously contended for in an age which has seen the severe restraints imposed on the Testamentary Power by the _Code Napoléon_, and has witnessed the steady multiplication of systems for which the French codes have served as a model. To the second assertion we must object that it is contrary to the best-ascertained facts in the early history of law, and I venture to affirm generally that, in all indigenous societies, a condition of jurisprudence in which Testamentary privileges are _not_ allowed, or rather not contemplated, has preceded that later stage of legal development in which the mere will of the proprietor is permitted under more or less of restriction to override the claims of his kindred in blood. The conception of a Will or Testament cannot be considered by itself. It is a member, and not the first, of a series of conceptions. In itself a Will is simply the instrument by which the intention of the testator is declared. It must be clear, I think, that before such an instrument takes its turn for discussion, there are several preliminary points to be examined--as, for example, what is it, what sort of right or interest, which passes from a dead man on his decease? to whom and in what form does it pass? and how came it that the dead were allowed to control the posthumous disposition of their property? Thrown into technical language, the dependence of the various conceptions which contribute to the notion of a Will is thus expressed. A Will or Testament is an instrument by which the devolution of an inheritance is prescribed. Inheritance is a form of universal succession. A universal succession is a succession to a _universitas juris_, or university of rights and duties. Inverting this order we have therefore to inquire what is a _universitas juris_; what is a universal succession; what is the form of universal succession which is called an inheritance? And there are also two further questions, independent to some extent of the points I have mooted, but demanding solution before the subject of Wills can be exhausted. These are, how came an inheritance to be controlled in any case by the testator's volition, and what is the nature of the instrument by which it came to be controlled? The first question relates to the _universitas juris_; that is, a university (or bundle) of rights and duties. A _universitas juris_ is a collection of rights and duties united by the single circumstance of their having belonged at one time to some one person. It is, as it were, the legal clothing of some given individual. It is not formed by grouping together _any_ rights and _any_ duties. It can only be constituted by taking all the rights and all the duties of a particular person. The tie which so connects a number of rights of property, rights of way, rights to legacies, duties of specific performance, debts, obligations to compensate wrongs--which so connects all these legal privileges and duties together as to constitute them a _universitas juris_, is the _fact_ of their having attached to some individual capable of exercising them. Without this _fact_ there is no university of rights and duties. The expression _universitas juris_ is not classical, but for the notion jurisprudence is exclusively indebted to Roman law; nor is it at all difficult to seize. We must endeavour to collect under one conception the whole set of legal relations in which each one of us stands to the rest of the world. These, whatever be their character and composition, make up together a _universitas juris_; and there is but little danger of mistake in forming the notion, if we are only careful to remember that duties enter into it quite as much as rights. Our duties may overbalance our rights. A man may owe more than he is worth, and therefore if a money value is set on his collective legal relations he may be what is called insolvent. But for all that the entire group of rights and duties which centres in him is not the less a "juris universitas." We come next to a "universal succession." A universal succession is a succession to a _universitas juris_. It occurs when one man is invested with the legal clothing of another, becoming at the same moment subject to all his liabilities and entitled to all his rights. In order that the universal succession may be true and perfect, the devolution must take place _uno ictu_, as the jurists phrase it. It is of course possible to conceive one man acquiring the whole of the rights and duties of another at different periods, as for example by successive purchases; or he might acquire them in different capacities, part as heir, part as purchaser, part as legatee. But though the group of rights and duties thus made up should in fact amount to the whole legal personality of a particular individual, the acquisition would not be a universal succession. In order that there may be a true universal succession, the transmission must be such as to pass the whole aggregate of rights and duties at the _same_ moment and in virtue of the _same_ legal capacity in the recipient. The notion of a universal succession, like that of a juris universitas, is permanent in jurisprudence, though in the English legal system it is obscured by the great variety of capacities in which rights are acquired, and, above all, by the distinction between the two great provinces of English property, "realty" and "personalty." The succession of an assignee in bankruptcy to the entire property of the bankrupt is, however, a universal succession, though as the assignee only pays debts to the extent of the assets, this is only a modified form of the primary notion. Were it common among us for persons to take assignments of _all_ a man's property on condition of paying _all_ his debts, such transfers would exactly resemble the universal successions known to the oldest Roman Law. When a Roman citizen _adrogated_ a son, _i.e._ took a man, not already under Patria Potestas, as his adoptive child, he succeeded _universally_ to the adoptive child's estate, _i.e._ he took all the property and became liable for all the obligations. Several other forms of universal succession appear in the primitive Roman Law, but infinitely the most important and the most durable of all was that one with which we are more immediately concerned, Hæreditas or Inheritance. Inheritance was a universal succession occurring at a death. The universal successor was Hæres or Heir. He stepped at once into all the rights and all the duties of the dead man. He was instantly clothed with his entire legal person, and I need scarcely add that the special character of the Hæres remained the same, whether he was named by a Will or whether he took on an Intestacy. The term Hæres is no more emphatically used of the Intestate than of the Testamentary Heir, for the manner in which a man became Hæres had nothing to do with the legal character he sustained. The dead man's universal successor, however he became so, whether by Will or by Intestacy, was his Heir. But the Heir was not necessarily a single person. A group of persons considered in law as a single unit, might succeed as _co-heirs_ to the Inheritance. Let me now quote the usual Roman definition of an Inheritance. The reader will be in a position to appreciate the full force of the separate terms. _Hæreditas est successio in universum jus quod defunctus habuit_ ("an inheritance is a succession to the entire legal position of a deceased man"). The notion was that, though the physical person of the deceased had perished, his legal personality survived and descended unimpaired on his Heir or Co-heirs, in whom his identity (so far as the law was concerned) was continued. Our own law, in constituting the Executor or Administrator the representative of the deceased to the extent of his personal assets, may serve as an illustration of the theory from which it emanated, but, although it illustrates, it does not explain it. The view of even the later Roman Law required a closeness of correspondence between the position of the deceased and of his Heir which is no feature of an English representation; and in the primitive jurisprudence everything turned on the continuity of succession. Unless provision was made in the will for the instant devolution of the testator's rights and duties on the Heir or Co-heirs, the testament lost all its effect. In modern Testamentary jurisprudence, as in the later Roman law, the object of first importance is the execution of the testator's intentions. In the ancient law of Rome the subject of corresponding carefulness was the bestowal of the Universal Succession. One of these rules seems to our eyes a principle dictated by common sense, while the other looks very much like an idle crotchet. Yet that without the second of them the first would never have come into being is as certain as any proposition of the kind can be. In order to solve this apparent paradox, and to bring into greater clearness the train of ideas which I have been endeavouring to indicate, I must borrow the results of the inquiry which was attempted in the earlier portion of the preceding chapter. We saw one peculiarity invariably distinguishing the infancy of society. Men are regarded and treated, not as individuals, but always as members of a particular group. Everybody is first a citizen, and then, as a citizen, he is a member of his order--of an aristocracy or a democracy, of an order of patricians or plebeians; or, in those societies which an unhappy fate has afflicted with a special perversion in their course of development, of a caste. Next, he is a member of a gens, house, or clan; and lastly, he is a member of his _family_. This last was the narrowest and most personal relation in which he stood; nor, paradoxical as it may seem, was he ever regarded as _himself_, as a distinct individual. His individuality was swallowed up in his family. I repeat the definition of a primitive society given before. It has for its units, not individuals, but groups of men united by the reality or the fiction of blood-relationship. It is in the peculiarities of an undeveloped society that we seize the first trace of a universal succession. Contrasted with the organisation of a modern state, the commonwealths of primitive times may be fairly described as consisting of a number of little despotic governments, each perfectly distinct from the rest, each absolutely controlled by the prerogative of a single monarch. But though the Patriarch, for we must not yet call him the Pater-familias, had rights thus extensive, it is impossible to doubt that he lay under an equal amplitude of obligations. If he governed the family, it was for its behoof. If he was lord of its possessions, he held them as trustee for his children and kindred. He had no privilege or position distinct from that conferred on him by his relation to the petty commonwealth which he governed. The Family, in fact, was a Corporation; and he was its representative or, we might almost say, its Public officer. He enjoyed rights and stood under duties, but the rights and the duties were, in the contemplation of his fellow-citizens and in the eye of the law, quite as much those of the collective body as his own. Let us consider for a moment the effect which would be produced by the death of such a representative. In the eye of the law, in the view of the civil magistrate, the demise of the domestic authority would be a perfectly immaterial event. The person representing the collective body of the family and primarily responsible to municipal jurisdiction would bear a different name; and that would be all. The rights and obligations which attached to the deceased head of the house would attach, without breach of continuity, to his successor; for, in point of fact, they would be the rights and obligations of the family, and the family had the distinctive characteristic of a corporation--that it never died. Creditors would have the same remedies against the new chieftain as against the old, for the liability being that of the still existing family would be absolutely unchanged. All rights available to the family would be as available after the demise of the headship as before it--except that the Corporation would be obliged--if indeed language so precise and technical can be properly used of these early times--would be obliged to _sue_ under a slightly modified name. The history of jurisprudence must be followed in its whole course, if we are to understand how gradually and tardily society dissolved itself into the component atoms of which it is now constituted--by what insensible gradations the relation of man to man substituted itself for the relation of the individual to his family and of families to each other. The point now to be attended to is that even when the revolution had apparently quite accomplished itself, even when the magistrate had in great measure assumed the place of the Pater-familias, and the civil tribunal substituted itself for the domestic forum, nevertheless the whole scheme of rights and duties administered by the judicial authorities remained shaped by the influence of the obsolete privileges and coloured in every part by their reflection. There seems little question that the devolution of the Universitas Juris, so strenuously insisted upon by the Roman Law as the first condition of a testamentary or intestate succession, was a feature of the older form of society which men's minds had been unable to dissociate from the new, though with that newer phase it had no true or proper connection. It seems, in truth, that the prolongation of a man's legal existence in his heir, or in a group of co-heirs, is neither more nor less than a characteristic of _the family_ transferred by a fiction to _the individual_. Succession in corporations is necessarily universal, and the family was a corporation. Corporations never die. The decease of individual members makes no difference to the collective existence of the aggregate body, and does not in any way affect its legal incidents, its faculties or liabilities. Now in the idea of a Roman universal succession all these qualities of a corporation seem to have been transferred to the individual citizen. His physical death is allowed to exercise no effect on the legal position which he filled, apparently on the principle that that position is to be adjusted as closely as possible to the analogies of a family, which, in its corporate character, was not of course liable to physical extinction. I observe that not a few continental jurists have much difficulty in comprehending the nature of the connection between the conceptions blended in a universal succession, and there is perhaps no topic in the philosophy of jurisprudence on which their speculations, as a general rule, possess so little value. But the student of English law ought to be in no danger of stumbling at the analysis of the idea which we are examining. Much light is cast upon it by a fiction in our own system with which all lawyers are familiar. English lawyers classify corporations as Corporations aggregate and Corporations sole. A Corporation aggregate is a true Corporation, but a Corporation sole is an individual, being a member of a series of individuals, who is invested by a fiction with the qualities of a Corporation. I need hardly cite the King or the Parson of a Parish as instances of Corporations sole. The capacity or office is here considered apart from the particular person who from time to time may occupy it, and, this capacity being perpetual, the series of individuals who fill it are clothed with the leading attribute of Corporations--Perpetuity. Now in the older theory of Roman Law the individual bore to the family precisely the same relation which in the rationale of English jurisprudence a Corporation sole bears to a Corporation aggregate. The derivation and association of ideas are exactly the same. In fact, if we say to ourselves that for purposes of Roman Testamentary Jurisprudence each individual citizen was a Corporation sole, we shall not only realise the full conception of an inheritance, but have constantly at command the clue to the assumption in which it originated. It is an axiom with us that the King never dies, being a Corporation sole. His capacities are instantly filled by his successor, and the continuity of dominion is not deemed to have been interrupted. With the Romans it seemed an equally simple and natural process, to eliminate the fact of death from the devolution of rights and obligations. The testator lived on in his heir or in the group of his co-heirs. He was in law the same person with them, and if any one in his testamentary dispositions had even constructively violated the principle which united his actual and his posthumous existence, the law rejected the defective instrument, and gave the inheritance to the kindred in blood, whose capacity to fulfil the conditions of heirship was conferred on them by the law itself, and not by any document which by possibility might be erroneously framed. When a Roman citizen died intestate or leaving no valid Will, his descendants or kindred became his heirs according to a scale which will be presently described. The person or class of persons who succeeded did not simply _represent_ the deceased, but, in conformity with the theory just delineated, they _continued_ his civil life, his legal existence. The same results followed when the order of succession was determined by a Will, but the theory of the identity between the dead man and his heirs was certainly much older than any form of Testament or phase of Testamentary jurisprudence. This indeed is the proper moment for suggesting a doubt which will press on us with greater force the further we plumb the depths of this subject,--whether _wills_ would ever have come into being at all if it had not been for these remarkable ideas connected with universal succession. Testamentary law is the application of a principle which may be explained on a variety of philosophical hypotheses as plausible as they are gratuitous; it is interwoven with every part of modern society, and it is defensible on the broadest grounds of general expediency. But the warning can never be too often repeated, that the grand source of mistake in questions of jurisprudence is the impression that those reasons which actuate us at the present moment, in the maintenance of an existing institution, have necessarily anything in common with the sentiment in which the institution originated. It is certain that, in the old Roman Law of Inheritance, the notion of a will or testament is inextricably mixed up, I might almost say confounded, with the theory of a man's posthumous existence in the person of his heir. The conception of a universal succession, firmly as it has taken root in jurisprudence, has not occurred spontaneously to the framers of every body of laws. Wherever it is now found, it may be shown to have descended from Roman law; and with it have come down a host of legal rules on the subject of Testaments and Testamentary gifts, which modern practitioners apply without discerning their relation to the parent theory. But, in the pure Roman jurisprudence, the principle that a man lives on in his Heir--the elimination, if we may so speak, of the fact of death--is too obviously for mistake the centre round which the whole Law of Testamentary and Intestate succession is circling. The unflinching sternness of the Roman law in enforcing compliance with the governing theory would in itself suggest that the theory grew out of something in the primitive constitution of Roman society; but we may push the proof a good way beyond the presumption. It happens that several technical expressions, dating from the earliest institution of Wills at Rome, have been accidentally preserved to us. We have in Gaius the formula of investiture by which the universal successor was created. We have the ancient name by which the person afterwards called Heir was at first designated. We have further the text of the celebrated clause in the Twelve Tables by which the Testamentary power was expressly recognised, and the clauses regulating Intestate Succession have also been preserved. All these archaic phrases have one salient peculiarity. They indicate that what passed from the Testator to the Heir was the _Family_, that is, the aggregate of rights and duties contained in the Patria Potestas and growing out of it. The material property is in three instances not mentioned at all; in two others, it is visibly named as an adjunct or appendage of the Family. The original Will or Testament was therefore an instrument, or (for it was probably not at first in writing) a proceeding, by which the devolution of the _Family_ was regulated. It was a mode of declaring who was to have the chieftainship, in succession to the Testator. When Wills are understood to have this for their original object, we see at once how it is that they came to be connected with one of the most curious relics of ancient religion and law, the _sacra_, or Family Rites. These _sacra_ were the Roman form of an institution which shows itself wherever society has not wholly shaken itself free from its primitive clothing. They are the sacrifices and ceremonies by which the brotherhood of the family is commemorated, the pledge and the witness of its perpetuity. Whatever be their nature,--whether it be true or not that in all cases they are the worship of some mythical ancestor,--they are everywhere employed to attest the sacredness of the family-relation; and therefore they acquire prominent significance and importance, whenever the continuous existence of the Family is endangered by a change in the person of its chief. Accordingly we hear most about them in connection with demises of domestic sovereignty. Among the Hindoos, the right to inherit a dead man's property is exactly co-extensive with the duty of performing his obsequies. If the rites are not properly performed or not performed by the proper person, no relation is considered as established between the deceased and anybody surviving him; the Law of Succession does not apply, and nobody can inherit the property. Every great event in the life of a Hindoo seems to be regarded as leading up to and bearing upon those solemnities. If he marries, it is to have children who may celebrate them after his death; if he has no children, he lies under the strongest obligation to adopt them from another family, "with a view," writes the Hindoo doctor, "to the funeral cake, the water, and the solemn sacrifice." The sphere preserved to the Roman _sacra_ in the time of Cicero, was not less in extent. It embraced Inheritances and Adoptions. No Adoption was allowed to take place without due provision for the _sacra_ of the family from which the adoptive son was transferred, and no Testament was allowed to distribute an Inheritance without a strict apportionment of the expenses of these ceremonies among the different co-heirs. The differences between the Roman law at this epoch, when we obtain our last glimpse of the _sacra_, and the existing Hindoo system, are most instructive. Among the Hindoos, the religious element in law has acquired a complete predominance. Family sacrifices have become the keystone of all the Law of Persons and much of the Law of Things. They have even received a monstrous extension, for it is a plausible opinion that the self-immolation of the widow at her husband's funeral, a practice continued to historical times by the Hindoos, and commemorated in the traditions of several Indo-European races, was an addition grafted on the primitive _sacra_, under the influence of the impression, which always accompanies the idea of sacrifice, that human blood is the most precious of all oblations. With the Romans, on the contrary, the legal obligation and the religious duty have ceased to be blended. The necessity of solemnising the _sacra_ forms no part of the theory of civil law, but they are under the separate jurisdiction of the College of Pontiffs. The letters of Cicero to Atticus, which are full of allusions to them, leave no doubt that they constituted an intolerable burden on Inheritances; but the point of development at which law breaks away from religion has been passed, and we are prepared for their entire disappearance from the later jurisprudence. In Hindoo law there is no such thing as a true Will. The place filled by Wills is occupied by Adoptions. We can now see the relation of the Testamentary Power to the Faculty of Adoption, and the reason why the exercise of either of them could call up a peculiar solicitude for the performance of the _sacra_. Both a Will and an Adoption threaten a distortion of the ordinary course of Family descent, but they are obviously contrivances for preventing the descent being wholly interrupted, when there is no succession of kindred to carry it on. Of the two expedients Adoption, the factitious creation of blood-relationship, is the only one which has suggested itself to the greater part of archaic societies. The Hindoos have indeed advanced one point on what was doubtless the antique practice, by allowing the widow to adopt when the father has neglected to do so, and there are in the local customs of Bengal some faint traces of the Testamentary powers. But to the Romans belongs pre-eminently the credit of inventing the Will, the institution which, next to the Contract, has exercised the greatest influence in transforming human society. We must be careful not to attribute to it in its earliest shape the functions which have attended it in more recent times. It was at first, not a mode of distributing a dead man's goods, but one among several ways of transferring the representation of the household to a new chief. The goods descend no doubt to the Heir, but that is only because the government of the family carries with it in its devolution the power of disposing of the common stock. We are very far as yet from that stage in the history of Wills in which they become powerful instruments in modifying society through the stimulus they give to the circulation of property and the plasticity they produce in proprietary rights. No such consequences as these appear in fact to have been associated with the Testamentary power even by the latest Roman lawyers. It will be found that Wills were never looked upon in the Roman community as a contrivance for parting Property and the Family, or for creating a variety of miscellaneous interests, but rather as a means of making a better provision for the members of a household than could be secured through the rules of Intestate succession. We may suspect indeed that the associations of a Roman with the practice of will-making were extremely different from those familiar to us nowadays. The habit of regarding Adoption and Testation as modes of continuing the Family cannot but have had something to do with the singular laxity of Roman notions as to the inheritance of sovereignty. It is impossible not to see that the succession of the early Roman Emperors to each other was considered reasonably regular, and that, in spite of all that had occurred, no absurdity attached to the pretension of such Princes as Theodosius or Justinian to style themselves Cæsar and Augustus. When the phenomena of primitive societies emerge into light, it seems impossible to dispute a proposition which the jurists of the seventeenth century considered doubtful, that Intestate Inheritance is a more ancient institution than Testamentary Succession. As soon as this is settled, a question of much interest suggests itself, how and under what conditions were the directions of a will first allowed to regulate the devolution of authority over the household, and consequently the posthumous distribution of property. The difficulty of deciding the point arises from the rarity of Testamentary power in archaic communities. It is doubtful whether a true power of testation was known to any original society except the Roman. Rudimentary forms of it occur here and there, but most of them are not exempt from the suspicion of a Roman origin. The Athenian will was, no doubt, indigenous, but then, as will appear presently, it was only an inchoate Testament. As to the Wills which are sanctioned by the bodies of law which have descended to us as the codes of the barbarian conquerors of Imperial Rome, they are almost certainly Roman. The most penetrating German criticism has recently been directed to these _leges Barbarorum_, the great object of investigation being to detach those portions of each system which formed the customs of the tribe in its original home from the adventitious ingredients which were borrowed from the laws of the Romans. In the course of this process, one result has invariably disclosed itself, that the ancient nucleus of the code contains no trace of a Will. Whatever testamentary law exists, has been taken from Roman jurisprudence. Similarly, the rudimentary Testament which (as I am informed) the Rabbinical Jewish law provides for, has been attributed to contact with the Romans. The only form of testament, not belonging to a Roman or Hellenic society, which can reasonably be supposed indigenous, is that recognised by the usages of the province of Bengal; and the testament of Bengal is only a rudimentary Will. The evidence, however, such as it is, seems to point to the conclusion that Testaments are at first only allowed to take effect on failure of the persons entitled to have the inheritance by right of blood genuine or fictitious. Thus, when Athenian citizens were empowered for the first time by the Laws of Solon to execute Testaments, they were forbidden to disinherit their direct male descendants. So, too, the Will of Bengal is only permitted to govern the succession so far as it is consistent with certain overriding claims of the family. Again, the original institutions of the Jews having provided nowhere for the privileges of Testatorship, the later Rabbinical jurisprudence, which pretends to supply the _casus omissi_ of the Mosaic law, allows the Power of Testation to attach when all the kindred entitled under the Mosaic system to succeed have failed or are undiscoverable. The limitations by which the ancient German codes hedge in the testamentary jurisprudence which has been incorporated with them are also significant, and point in the same direction. It is the peculiarity of most of these German laws, in the only shape in which we know them, that, besides the _allod_ or domain of each household, they recognise several subordinate kinds or orders of property, each of which probably represents a separate transfusion of Roman principles into the primitive body of Teutonic usage. The primitive German or allodial property is strictly reserved to the kindred. Not only is it incapable of being disposed of by testament but it is scarcely capable of being alienated by conveyance _inter vivos_. The ancient German law, like the Hindoo jurisprudence, makes the male children co-proprietors with their father, and the endowment of the family cannot be parted with except by the consent of all its members. But the other sorts of property, of more modern origin and lower dignity than the allodial possessions, are much more easily alienated than they, and follow much more lenient rules of devolution. Women and the descendants of women succeed to them, obviously on the principle that they lie outside the sacred precinct of the Agnatic brotherhood. Now, it is on these last descriptions of property, and on these only, that the Testaments borrowed from Rome were at first allowed to operate. These few indications may serve to lend additional plausibility to that which in itself appears to be the most probable explanation of an ascertained fact in the early history of Roman Wills. We have it stated on abundant authority that Testaments, during the primitive period of the Roman State, were executed in the Comitia Calata, that is, in the Comitia Curiata, or Parliament of the Patrician Burghers of Rome, when assembled for Private Business. This mode of execution has been the source of the assertion, handed down by one generation of civilians to another, that every Will at one era of Roman history was a solemn legislative enactment. But there is no necessity whatever for resorting to an explanation which has the defect of attributing far too much precision to the proceedings of the ancient assembly. The proper key to the story concerning the execution of Wills in the Comitia Calata must no doubt be sought in the oldest Roman Law of _intestate_ succession. The canons of primitive Roman jurisprudence regulating the inheritance of relations from each other were, so long as they remained unmodified by the Edictal Law of the Prætor, to the following effect:--First, the _sui_ or direct descendants who had never been emancipated succeeded. On the failure of the _sui_, the Nearest Agnate came into their place, that is, the nearest person or class of the kindred who was or might have been under the same Patria Potestas with the deceased. The third and last degree came next, in which the inheritance devolved on the _gentiles_, that is on the collective members of the dead man's _gens_ or _House_. The House, I have explained already, was a fictitious extension of the family, consisting of all Roman Patrician citizens who bore the same name, and who, on the ground of bearing the same name, were supposed to be descended from a common ancestor. Now the Patrician Assembly called the Comitia Curiata was a Legislature in which Gentes or Houses were exclusively represented. It was a representative assembly of the Roman people, constituted on the assumption that the constituent unit of the state was the Gens. This being so, the inference seems inevitable, that the cognizance of Wills by the Comitia was connected with the rights of the Gentiles, and was intended to secure them in their privilege of ultimate inheritance. The whole apparent anomaly is removed, if we suppose that a Testament could only be made when the testator had no _gentiles_ discoverable, or when they waived their claims, and that every Testament was submitted to the General Assembly of the Roman Gentes, in order that those aggrieved by its dispositions might put their veto upon it if they pleased, or by allowing it to pass might be presumed to have renounced their reversion. It is possible that on the eve of the publication of the Twelve Tables this vetoing power may have been greatly curtailed or only occasionally and capriciously exercised. It is much easier, however, to indicate the meaning and origin of the jurisdiction confided to the Comitia Calata, than to trace its gradual development or progressive decay. The Testament to which the pedigree of all modern Wills may be traced is not, however, the Testament executed in the Calata Comitia, but another Testament designed to compete with it and destined to supersede it. The historical importance of this early Roman Will, and the light it casts on much of ancient thought, will excuse me for describing it at some length. When the Testamentary power first discloses itself to us in legal history, there are signs that, like almost all the great Roman institutions, it was the subject of contention between the Patricians and the Plebeians. The effect of the political maxim, _Plebs Gentem non habet_, "a Plebeian cannot be a member of a House," was entirely to exclude the Plebeians from the Comitia Curiata. Some critics have accordingly supposed that a Plebeian could not have his Will read or recited to the Patrician Assembly, and was thus deprived of Testamentary privileges altogether. Others have been satisfied to point out the hardships of having to submit a proposed Will to the unfriendly jurisdiction of an assembly in which the Testator was not represented. Whatever be the true view, a form of Testament came into use, which has all the characteristics of a contrivance intended to evade some distasteful obligation. The Will in question was a conveyance _inter vivos_, a complete and irrevocable alienation of the Testator's family and substance to the person whom he meant to be his heir. The strict rules of Roman law must always have permitted such an alienation, but, when the transaction was intended to have a posthumous effect, there may have been disputes whether it was valid for Testamentary purposes without the formal assent of the Patrician Parliament. If a difference of opinion existed on the point between the two classes of the Roman population, it was extinguished, with many other sources of heartburning, by the great Decemviral compromise. The text of the Twelve Tables is still extant which says, "_Pater familias uti de pecuniâ tutelâve rei suæ legâssit, ita jus esto_"--a law which can hardly have had any other object than the legalisation of the Plebeian Will. It is well known to scholars that, centuries after the Patrician Assembly had ceased to be the legislature of the Roman State, it still continued to hold formal sittings for the convenience of private business. Consequently, at a period long subsequent to the publication of the Decemviral Law, there is reason to believe that the Comitia Calata still assembled for the validation of Testaments. Its probable functions may be best indicated by saying that it was a Court of Registration, with the understanding however that the Wills exhibited were not _enrolled_, but simply recited to the members, who were supposed to take note of their tenor and to commit them to memory. It is very likely that this form of Testament was never reduced to writing at all, but at all events if the Will had been originally written, the office of the Comitia was certainly confined to hearing it read aloud, the document being retained afterwards in the custody of the Testator, or deposited under the safeguard of some religious corporation. This publicity may have been one of the incidents of the Testament executed in the Comitia Calata which brought it into popular disfavour. In the early years of the Empire the Comitia still held its meetings, but they seem to have lapsed into the merest form, and few Wills, or none, were probably presented at the periodical sitting. It is the ancient Plebeian Will--the alternative of the Testament just described--which in its remote effects has deeply modified the civilisation of the modern world. It acquired at Rome all the popularity which the Testament submitted to the Calata Comitia appears to have lost. The key to all its characteristics lies in its descent from the _mancipium_, or ancient Roman conveyance, a proceeding to which we may unhesitatingly assign the parentage of two great institutions without which modern society can scarcely be supposed capable of holding together, the Contract and the Will. The _mancipium_, or as the word would exhibit itself in later Latinity, the Mancipation, carries us back by its incidents to the infancy of civil society. As it sprang from times long anterior, if not to the invention, at all events to the popularisation, of the art of writing, gestures, symbolical acts, and solemn phrases take the place of documentary forms, and a lengthy and intricate ceremonial is intended to call the attention of the parties to the importance of the transaction, and to impress it on the memory of the witnesses. The imperfection too of oral, as compared with written, testimony necessitates the multiplication of the witnesses and assistants beyond what in later times would be reasonable or intelligible limits. The Roman Mancipation required the presence first of all of the parties, the vendor and vendee, or we should perhaps rather say, if we are to use modern legal language, the grantor and grantee. There were also no less than _five_ witnesses; and an anomalous personage, the Libripens, who brought with him a pair of scales to weigh the uncoined copper money of ancient Rome. The Testament we are considering--the Testament _per æs et libram_, "with the copper and the scales," as it long continued to be technically called--was an ordinary Mancipation with no change in the form and hardly any in words. The Testator was the grantor; the five witnesses and the libripens were present; and the place of grantee was taken by a person known technically as the _familiæ emptor_, the Purchaser of the Family. The ordinary ceremony of a Mancipation was then proceeded with. Certain formal gestures were made and sentences pronounced. The _Emptor familiæ_ simulated the payment of a price by striking the scales with a piece of money, and finally the Testator ratified what had been done in a set form of words called the "Nuncupatio" or publication of the transaction, a phrase which, I need scarcely remind the lawyer, has had a long history in Testamentary jurisprudence. It is necessary to attend particularly to the character of the person called _familiæ emptor_. There is no doubt that at first he was the Heir himself. The Testator conveyed to him outright his whole "familia," that is, all the rights he enjoyed over and through the family; his property, his slaves, and all his ancestral privileges, together, on the other hand, with all his duties and obligations. With these data before us, we are able to note several remarkable points in which the Mancipatory Testament, as it may be called, differed in its primitive form from a modern will. As it amounted to a conveyance _out-and-out_ of the Testator's estate, it was not _revocable_. There could be no new exercise of a power which had been exhausted. Again, it was not secret. The Familiæ Emptor, being himself the Heir, knew exactly what his rights were, and was aware that he was irreversibly entitled to the inheritance; a knowledge which the violences inseparable from the best-ordered ancient society rendered extremely dangerous. But perhaps the most surprising consequence of this relation of Testaments to Conveyances was the immediate vesting of the inheritance in the Heir. This has seemed so incredible to not a few civilians, that they have spoken of the Testator's estate as vesting conditionally on the Testator's death or as granted to him from a time uncertain, _i.e._ the death of the grantor. But down to the latest period of Roman jurisprudence there was a certain class of transactions which never admitted of being directly modified by a condition, or of being limited to or from a point of time. In technical language they did not admit _conditio_ or _dies_. Mancipation was one of them, and therefore, strange as it may seem, we are forced to conclude that the primitive Roman Will took effect at once, even though the Testator survived his act of Testation. It is indeed likely that Roman citizens originally made their Wills only in the article of death, and that a provision for the continuance of the Family effected by a man in the flower of life would take the form rather of an Adoption than of a Will. Still we must believe that, if the Testator did recover, he could only continue to govern his household by the sufferance of his Heir. Two or three remarks should be made before I explain how these inconveniences were remedied, and how Testaments came to be invested with the characteristics now universally associated with them. The Testament was not necessarily written: at first, it seems to have been invariably oral, and, even in later times, the instrument declaratory of the bequests was only incidentally connected with the Will and formed no essential part of it. It bore in fact exactly the same relation to the Testament, which the deed leading the uses bore to the Fines and Recoveries of old English law, or which the charter of feoffment bore to the feoffment itself. Previously, indeed, to the Twelve Tables, no writing would have been of the slightest use, for the Testator had no power of giving legacies, and the only persons who could be advantaged by a will were the Heir or Co-heirs. But the extreme generality of the clause in the Twelve Tables soon produced the doctrine that the Heir must take the inheritance burdened by any directions which the Testator might give him, or in other words, take it subject to legacies. Written testamentary instruments assumed thereupon a new value, as a security against the fraudulent refusal of the heir to satisfy the legatees; but to the last it was at the Testator's pleasure to rely exclusively on the testimony of the witnesses, and to declare by word of mouth the legacies which the _familiæ emptor_ was commissioned to pay. The terms of the expression _Emptor familiæ_ demand notice. "Emptor" indicates that the Will was literally a sale, and the word "familiæ," when compared with the phraseology in the Testamentary clause in the Twelve Tables, leads us to some instructive conclusions. "Familia," in classical Latinity, means always a man's slaves. Here, however, and generally in the language of ancient Roman law, it includes all persons under his Potestas, and the Testator's material property or substance is understood to pass as an adjunct or appendage of his household. Turning to the law of the Twelve Tables, it will be seen that it speaks of _tutela rei suæ_, "the guardianship of his substance," a form of expression which is the exact reverse of the phrase just examined. There does not therefore appear to be any mode of escaping from the conclusion, that, even at an era so comparatively recent as that of the Decemviral compromise, terms denoting "household" and "property" were blended in the current phraseology. If a man's household had been spoken of as his property we might have explained the expression as pointing to the extent of the Patria Potestas, but, as the interchange is reciprocal, we must allow that the form of speech carries us back to that primeval period in which property is owned by the family, and the family is governed by the citizen, so that the members of the community do not own their property _and_ their family, but rather own their property _through_ their family. At an epoch not easy to settle with precision, the Roman Prætors fell into the habit of acting upon Testaments solemnised in closer conformity with the spirit than the letter of the law. Casual dispensations became insensibly the established practice, till at length a wholly new form of Will was matured and regularly engrafted on the Edictal Jurisprudence. The new or _Prætorian_ Testament derived the whole of its impregnability from the _Jus Honorarium_ or Equity of Rome. The Prætor of some particular year must have inserted a clause in his inaugural Proclamation declaratory of his intention to sustain all Testaments which should have been executed with such and such solemnities; and, the reform having been found advantageous, the article relating to it must have been again introduced by the Prætor's successor, and repeated by the next in office, till at length it formed a recognised portion of that body of jurisprudence which from these successive incorporations was styled the Perpetual or Continuous Edict. On examining the conditions of a valid Prætorian Will they will be plainly seen to have been determined by the requirements of the Mancipatory Testament, the innovating Prætor having obviously prescribed to himself the retention of the old formalities just so far as they were warrants of genuineness or securities against fraud. At the execution of the Mancipatory Testament seven persons had been present besides the Testator. Seven witnesses were accordingly essential to the Prætorian Will: two of them corresponding to the _libripens_ and _familiæ emptor_, who were now stripped of their symbolical character, and were merely present for the purpose of supplying their testimony. No emblematic ceremony was gone through; the Will was merely recited; but then it is probable (though not absolutely certain) that a written instrument was necessary to perpetuate the evidence of the Testator's dispositions. At all events, whenever a writing was read or exhibited as a person's last Will, we know certainly that the Prætorian Court would not sustain it by special intervention, unless each of the seven witnesses had severally affixed his seal to the outside. This is the first appearance of _sealing_ in the history of jurisprudence, considered as a mode of authentication. It is to be observed that the seals of Roman Wills, and other documents of importance, did not simply serve as the index of the presence or assent of the signatory, but were literally fastenings which had to be broken before the writing could be inspected. The Edictal Law would therefore enforce the dispositions of a Testator, when, instead of being symbolised through the forms of mancipation, they were simply evidenced by the seals of seven witnesses. But it may be laid down as a general proposition, that the principal qualities of Roman property were incommunicable except through processes which were supposed to be coeval with the origin of the Civil Law. The Prætor therefore could not confer an _Inheritance_ on anybody. He could not place the Heir or Co-heirs in that very relation in which the Testator had himself stood to his own rights and obligations. All he could do was to confer on the person designated as Heir the practical enjoyment of the property bequeathed, and to give the force of legal acquittances to his payments of the Testator's debts. When he exerted his powers to these ends, the Prætor was technically said to communicate the _Bonorum Possessio_. The Heir specially inducted under these circumstances, or _Bonorum Possessor_, had every proprietary privilege of the Heir by the Civil Law. He took the profits and he could alienate, but then, for all his remedies for redress against wrong, he must go, as we should phrase it, not to the Common Law, but to the Equity side of the Prætorian Court. No great chance of error would be incurred by describing him as having an _equitable_ estate in the inheritance; but then, to secure ourselves against being deluded by the analogy, we must always recollect that in one year the _Bonorum Possessio_ was operated upon a principle of Roman Law known as Usucapion, and the Possessor became Quiritarian owner of all the property comprised in the inheritance. We know too little of the older law of Civil Process to be able to strike the balance of advantage and disadvantage between the different classes of remedies supplied by the Prætorian Tribunal. It is certain, however, that, in spite of its many defects, the Mancipatory Testament by which the _universitas juris_ devolved at once and unimpaired was never entirely superseded by the new Will; and at a period less bigoted to antiquarian forms, and perhaps not quite alive to their significance, all the ingenuity of the Jurisconsults seems to have been expended on the improvement of the more venerable instrument. At the era of Gaius, which is that of the Antonine Cæsars, the great blemishes of the Mancipatory Will had been removed. Originally, as we have seen, the essential character of the formalities had required that the Heir himself should be the Purchaser of the Family, and the consequence was that he not only instantly acquired a vested interest in the Testator's Property, but was formally made aware of his rights. But the age of Gaius permitted some unconcerned person to officiate as Purchaser of the Family. The heir, therefore, was not necessarily informed of the succession to which he was destined; and Wills thenceforward acquired the property of _secrecy_. The substitution of a stranger for the actual Heir in the functions of "Familiæ Emptor" had other ulterior consequences. As soon as it was legalised, a Roman Testament came to consist of two parts or stages--a conveyance, which was a pure form, and a Nuncupatio, or Publication. In this latter passage of the proceeding, the Testator either orally declared to the assistants the wishes which were to be executed after his death, or produced a written document in which his wishes were embodied. It was not probably till attention had been quite drawn off from the imaginary Conveyance, and concentrated on the Nuncupation as the essential part of the transaction, that Wills were allowed to become _revocable_. I have thus carried the pedigree of Wills some way down in legal history. The root of it is the old Testament "with the copper and the scales," founded on a Mancipation or Conveyance. This ancient Will has, however, manifold defects, which are remedied, though only indirectly, by the Prætorian law. Meantime the ingenuity of the Jurisconsults effects, in the Common-Law Will or Mancipatory Testament, the very improvements which the Prætor may have concurrently carried out in Equity. These last ameliorations depend, however, on mere legal dexterity, and we see accordingly that the Testamentary Law of the day of Gaius or Ulpian is only transitional. What changes next ensued we know not; but at length, just before the reconstruction of the jurisprudence by Justinian, we find the subjects of the Eastern Roman Empire employing a form of Will of which the pedigree is traceable to the Prætorian Testament on one side, and to the Testament "with the copper and the scales" on the other. Like the Testament of the Prætor, it required no Mancipation, and was invalid unless sealed by seven witnesses. Like the Mancipatory Will, it passed the Inheritance and not merely a _Bonorum Possessio_. Several, however, of its most important features were annexed by positive enactments, and it is out of regard to this threefold derivation from the Prætorian Edict, from the Civil Law, and from the Imperial Constitutions, that Justinian speaks of the Law of Wills in his own day as _Jus Tripertitum_. The new Testament thus described is the one generally known as the Roman Will. But it was the Will of the Eastern Empire only; and the researches of Savigny have shown that in Western Europe the old Mancipatory Testament, with all its apparatus of conveyance, copper, and scales, continued to be the form in use far down in the Middle Ages. CHAPTER VII ANCIENT AND MODERN IDEAS RESPECTING WILLS AND SUCCESSIONS Although there is much in the modern European Law of Wills which is intimately connected with the oldest rules of Testamentary disposition practised among men, there are nevertheless some important differences between ancient and modern ideas on the subject of Wills and Successions. Some of the points of difference I shall endeavour to illustrate in this chapter. At a period, removed several centuries from the era of the Twelve Tables, we find a variety of rules engrafted on the Roman Civil Law with the view of limiting the disinherison of children; we have the jurisdiction of the Prætor very actively exerted in the same interest; and we are also presented with a new remedy, very anomalous in character and of uncertain origin, called the Querela Inofficiosi Testamenti, "the Plaint of an Unduteous Will," directed to the reinstatement of the issue in inheritances from which they had been unjustifiably excluded by a father's Testament. Comparing this condition of the law with the text of the Twelve Tables which concedes in terms the utmost liberty of Testation, several writers have been tempted to interweave a good deal of dramatic incident into their history of the Law Testamentary. They tell us of the boundless license of disinherison in which the heads of families instantly began to indulge, of the scandal and injury to public morals which the new practices engendered, and of the applause of all good men which hailed the courage of the Prætor in arresting the progress of paternal depravity. This story, which is not without some foundation for the principal fact it relates, is often so told as to disclose very serious misconceptions of the principles of legal history. The Law of the Twelve Tables is to be explained by the character of the age in which it was enacted. It does not license a tendency which a later era thought itself bound to counteract, but it proceeds on the assumption that no such tendency exists, or, perhaps we should say, in ignorance of the possibility of its existence. There is no likelihood that Roman citizens began immediately to avail themselves freely of the power to disinherit. It is against all reason and sound appreciation of history to suppose that the yoke of family bondage, still patiently submitted to, as we know, where its pressure galled most cruelly, would be cast off in the very particular in which its incidence in our own day is not otherwise than welcome. The Law of the Twelve Tables permitted the execution of Testaments in the only case in which it was thought possible that they could be executed, viz. on failure of children and proximate kindred. It did not forbid the disinherison of direct descendants, inasmuch as it did not legislate against a contingency which no Roman lawgiver of that era could have contemplated. No doubt, as the offices of family affection progressively lost the aspect of primary personal duties, the disinherison of children was occasionally attempted. But the interference of the Prætor, so far from being called for by the universality of the abuse, was doubtless first prompted by the fact that such instances of unnatural caprice were few and exceptional, and at conflict with the current morality. The indications furnished by this part of Roman Testamentary Law are of a very different kind. It is remarkable that a Will never seems to have been regarded by the Romans as a means of _disinheriting_ a Family, or of effecting the unequal distribution of a patrimony. The rules of law preventing its being turned to such a purpose, increase in number and stringency as the jurisprudence unfolds itself; and these rules correspond doubtless with the abiding sentiment of Roman society, as distinguished from occasional variations of feeling in individuals. It would rather seem as if the Testamentary Power were chiefly valued for the assistance it gave in _making provision_ for a Family, and in dividing the inheritance more evenly and fairly than the Law of Intestate Succession would have divided it. If this be the true reading of the general sentiment on the point, it explains to some extent the singular horror of Intestacy which always characterised the Roman. No evil seems to have been considered a heavier visitation than the forfeiture of Testamentary privileges; no curse appears to have been bitterer than that which imprecated on an enemy that he might die without a Will. The feeling has no counterpart, or none that is easily recognisable, in the forms of opinion which exist at the present day. All men at all times will doubtless prefer chalking out the destination of their substance to having that office performed for them by the law; but the Roman passion for Testacy is distinguished from the mere desire to indulge caprice by its intensity; and it has of course nothing whatever in common with that pride of family, exclusively the creation of feudalism, which accumulates one description of property in the hands of a single representative. It is probable, _à priori_, that it was something in the rules of Intestate Succession which caused this vehement preference for the distribution of property under a Testament over its distribution by law. The difficulty, however, is, that on glancing at the Roman Law of Intestate Succession, in the form which it wore for many centuries before Justinian shaped it into that scheme of inheritance which has been almost universally adopted by modern lawgivers, it by no means strikes one as remarkably unreasonable or inequitable. On the contrary, the distribution it prescribes is so fair and rational, and differs so little from that with which modern society has been generally contented, that no reason suggests itself why it should have been regarded with extraordinary distaste, especially under a jurisprudence which pared down to a narrow compass the testamentary privileges of persons who had children to provide for. We should rather have expected that, as in France at this moment, the heads of families would generally save themselves the trouble of executing a Will, and allow the Law to do as it pleased with their assets. I think, however, if we look a little closely at the pre-Justinianean scale of Intestate Succession, we shall discover the key to the mystery. The texture of the law consists of two distinct parts. One department of rules comes from the Jus Civile, the Common-Law of Rome; the other from the Edict of the Prætor. The Civil Law, as I have already stated for another purpose, calls to the inheritance only three orders of successors in their turn; the Unemancipated children, the nearest class of Agnatic kindred, and the Gentiles. Between these three orders, the Prætor interpolates various classes of relatives, of whom the Civil Law took no notice whatever. Ultimately, the combination of the Edict and of the Civil Law forms a table of succession not materially different from that which has descended to the generality of modern codes. The point for recollection is that there must anciently have been a time at which the rules of the Civil Law determined the scheme of Intestate Succession exclusively, and at which the arrangements of the Edict were non-existent, or not consistently carried out. We cannot doubt that, in its infancy, the Prætorian jurisprudence had to contend with formidable obstructions, and it is more than probable that, long after popular sentiment and legal opinion had acquiesced in it, the modifications which it periodically introduced were governed by no certain principles, and fluctuated with the varying bias of successive magistrates. The rules of Intestate Succession, which the Romans must at this period have practised, account, I think--and more than account--for that vehement distaste for an Intestacy to which Roman society during so many ages remained constant. The order of succession was this: on the death of a citizen, having no will or no valid will, his Unemancipated children became his Heirs. His _emancipated_ sons had no share in the inheritance. If he left no direct descendants living at his death, the nearest grade of the Agnatic kindred succeeded, but no part of the inheritance was given to any relative united (however closely) with the dead man through female descents. All the other branches of the family were excluded, and the inheritance escheated to the _Gentiles_, or entire body of Roman citizens bearing the same name with the deceased. So that on failing to execute an operative Testament, a Roman of the era under examination left his emancipated children absolutely without provision, while, on the assumption that he died childless, there was imminent risk that his possessions would escape from the family altogether, and devolve on a number of persons with whom he was merely connected by the sacerdotal fiction that assumed all members of the same _gens_ to be descended from a common ancestor. The prospect of such an issue is in itself a nearly sufficient explanation of the popular sentiment; but, in point of fact, we shall only half understand it, if we forget that the state of things I have been describing is likely to have existed at the very moment when Roman society was in the first stage of its transition from its primitive organisation in detached families. The empire of the father had indeed received one of the earliest blows directed at it through the recognition of Emancipation as a legitimate usage, but the law, still considering the Patria Potestas to be the root of family connection, persevered in looking on the emancipated children as strangers to the rights of Kinship and aliens from the blood. We cannot, however, for a moment suppose that the limitations of the family imposed by legal pedantry had their counterpart in the natural affection of parents. Family attachments must still have retained that nearly inconceivable sanctity and intensity which belonged to them under the Patriarchal system; and, so little are they likely to have been extinguished by the act of emancipation, that the probabilities are altogether the other way. It may be unhesitatingly taken for granted that enfranchisement from the father's power was a demonstration, rather than a severance, of affection--a mark of grace and favour accorded to the best-beloved and most esteemed of the children. If sons thus honoured above the rest were absolutely deprived of their heritage by an Intestacy, the reluctance to incur it requires no farther explanation. We might have assumed _à priori_ that the passion for Testacy was generated by some moral injustice entailed by the rules of Intestate succession; and here we find them at variance with the very instinct by which early society was cemented together. It is possible to put all that has been urged in a very succinct form. Every dominant sentiment of the primitive Romans was entwined with the relations of the family. But what was the Family? The Law defined it one way--natural affection another. In the conflict between the two, the feeling we would analyse grew up, taking the form of an enthusiasm for the institution by which the dictates of affection were permitted to determine the fortunes of its objects. I regard, therefore, the Roman horror of Intestacy as a monument of a very early conflict between ancient law and slowly changing ancient sentiment on the subject of the Family. Some passages in the Roman Statute-Law, and one statute in particular which limited the capacity for inheritance possessed by women, must have contributed to keep alive the feeling; and it is the general belief that the system of creating Fidei-Commissa, or bequests in trust, was devised to evade the disabilities imposed by those statutes. But the feeling itself, in its remarkable intensity, seems to point back to some deeper antagonism between law and opinion; nor is it at all wonderful that the improvements of jurisprudence by the Prætor should not have extinguished it. Everybody conversant with the philosophy of opinion is aware that a sentiment by no means dies out, of necessity, with the passing away of the circumstances which produced it. It may long survive them; nay, it may afterwards attain to a pitch and climax of intensity which it never attained during their actual continuance. The view of a Will which regards it as conferring the power of diverting property from the Family, or of distributing it in such uneven proportions as the fancy or good sense of the Testator may dictate, is not older than that later portion of the Middle Ages in which Feudalism had completely consolidated itself. When modern jurisprudence first shows itself in the rough, Wills are rarely allowed to dispose with absolute freedom of a dead man's assets. Wherever at this period the descent of property was regulated by Will--and over the greater part of Europe moveable or personal property was the subject of Testamentary disposition--the exercise of the Testamentary power was seldom allowed to interfere with the right of the widow to a definite share, and of the children to certain fixed proportions, of the devolving inheritance. The shares of the children, as their amount shows, were determined by the authority of Roman law. The provision for the widow was attributable to the exertions of the Church, which never relaxed its solicitude for the interest of wives surviving their husbands--winning, perhaps, one of the most arduous of its triumphs when, after exacting for two or three centuries an express promise from the husband at marriage to endow his wife, it at length succeeded in engrafting the principle of Dower on the Customary Law of all Western Europe. Curiously enough, the dower of lands proved a more stable institution than the analogous and more ancient reservation of certain shares of the personal property to the widow and children. A few local customs in France maintained the right down to the Revolution, and there are traces of similar usages in England; but on the whole the doctrine prevailed that moveables might be freely disposed of by Will, and, even when the claims of the widow continued to be respected, the privileges of the children were obliterated from jurisprudence. We need not hesitate to attribute the change to the influence of Primogeniture. As the Feudal law of land practically disinherited all the children in favour of one, the equal distribution even of those sorts of property which might have been equally divided ceased to be viewed as a duty. Testaments were the principal instruments employed in producing inequality, and in this condition of things originated the shade of difference which shows itself between the ancient and the modern conception of a Will. But, though the liberty of bequest, enjoyed through Testaments, was thus an accidental fruit of Feudalism, there is no broader distinction than that which exists between a system of free Testamentary disposition and a system, like that of the Feudal land-law, under which property descends compulsorily in prescribed lines of devolution. This truth appears to have been lost sight of by the authors of the French Codes. In the social fabric which they determined to destroy, they saw Primogeniture resting chiefly on Family settlements, but they also perceived that Testaments were frequently employed to give the eldest son precisely the same preference which was reserved to him under the strictest of entails. In order, therefore, to make sure of their work, they not only rendered it impossible to prefer the eldest son to the rest in marriage-arrangements, but they almost expelled Testamentary succession from the law, lest it should be used to defeat their fundamental principle of an equal distribution of property among children at the parent's death. The result is that they have established a system of small perpetual entails, which is infinitely nearer akin to the system of feudal Europe than would be a perfect liberty of bequest. The land-law of England, "the Herculaneum of Feudalism," is certainly much more closely allied to the land-law of the Middle Ages than that of any Continental country, and Wills with us are frequently used to aid or imitate that preference of the eldest son and his line which is a nearly universal feature in marriage settlements of real property. But nevertheless feeling and opinion in this country have been profoundly affected by the practice of free Testamentary disposition; and it appears to me that the state of sentiment in a great part of French society, on the subject of the conservation of property in families, is much liker that which prevailed through Europe two or three centuries ago than are the current opinions of Englishmen. The mention of Primogeniture introduces one of the most difficult problems of historical jurisprudence. Though I have not paused to explain my expressions, it may have been noticed that I have frequently spoken of a number of "co-heirs" as placed by the Roman Law of Succession on the same footing with a single Heir. In point of fact, we know of no period of Roman jurisprudence at which the place of the Heir, or Universal Successor, might not have been taken by a group of co-heirs. This group succeeded as a single unit, and the assets were afterwards divided among them in a separate legal proceeding. When the Succession was _ab intestato_, and the group consisted of the children of the deceased, they each took an equal share of the property; nor, though males had at one time some advantages over females, is there the faintest trace of Primogeniture. The mode of distribution is the same throughout archaic jurisprudence. It certainly seems that, when civil society begins and families cease to hold together through a series of generations, the idea which spontaneously suggests itself is to divide the domain equally among the members of each successive generation, and to reserve no privilege to the eldest son or stock. Some peculiarly significant hints as to the close relation of this phenomenon to primitive thought are furnished by systems yet more archaic than the Roman. Among the Hindoos, the instant a son is born, he acquires a vested right in his father's property, which cannot be sold without recognition of his joint ownership. On the son's attaining full age, he can sometimes compel a partition of the estate even against the consent of the parent; and, should the parent acquiesce, one son can always have a partition even against the will of the others. On such partition taking place, the father has no advantage over his children, except that he has two of the shares instead of one. The ancient law of the German tribes was exceedingly similar. The _allod_ or domain of the family was the joint-property of the father and his sons. It does not, however, appear to have been habitually divided even at the death of the parent, and in the same way the possessions of a Hindoo, however divisible theoretically, are so rarely distributed in fact, that many generations constantly succeed each other without a partition taking place, and thus the Family in India has a perpetual tendency to expand into the Village Community, under conditions which I shall hereafter attempt to elucidate. All this points very clearly to the absolutely equal division of assets among the male children at death as the practice most usual with society at the period when family-dependency is in the first stages of disintegration. Here then emerges the historical difficulty of Primogeniture. The more clearly we perceive that, when the Feudal institutions were in process of formation, there was no source in the world whence they could derive their elements but the Roman law of the provincials on the one hand and the archaic customs of the barbarians on the other, the more are we perplexed at first sight by our knowledge that neither Roman nor barbarian was accustomed to give any preference to the eldest son or his line in the succession to property. Primogeniture did not belong to the Customs which the barbarians practised on their first establishment within the Roman Empire. It is known to have had its origin in the _benefices_ or beneficiary gifts of the invading chieftains. These benefices, which were occasionally conferred by the earlier immigrant kings, but were distributed on a great scale by Charlemagne, were grants of Roman provincial land to be holden by the beneficiary on condition of military service. The _allodial_ proprietors do not seem to have followed their sovereign on distant or difficult enterprises, and all the grander expeditions of the Frankish chiefs and of Charlemagne were accomplished with forces composed of soldiers either personally dependent on the royal house or compelled to serve it by the tenure of their land. The benefices, however, were not at first in any sense hereditary. They were held at the pleasure of the grantor, or at most for the life of the grantee; but still, from the very outset, no effort seems to have been spared by the beneficiaries to enlarge the tenure, and to continue their lands in their family after death. Through the feebleness of Charlemagne's successors these attempts were universally successful, and the Benefice gradually transformed itself into the hereditary Fief. But, though the fiefs were hereditary, they did not necessarily descend to the eldest son. The rules of succession which they followed were entirely determined by the terms agreed upon between the grantor and the beneficiary, or imposed by one of them on the weakness of the other. The original tenures were therefore extremely various; not indeed so capriciously various as is sometimes asserted, for all which have hitherto been described present some combination of the modes of succession familiar to Romans and to barbarians, but still exceedingly miscellaneous. In some of them, the eldest son and his stock undoubtedly succeeded to the fief before the others, but such successions, so far from being universal, do not even appear to have been general. Precisely the same phenomena recur during that more recent transmutation of European society which entirely substituted the feudal form of property for the domainial (or Roman) and the allodial (or German). The allods were wholly absorbed by the fiefs. The greater allodial proprietors transformed themselves into feudal lords by conditional alienations of portions of their land to dependants; the smaller sought an escape from the oppressions of that terrible time by surrendering their property to some powerful chieftain, and receiving it back at his hands on condition of service in his wars. Meantime, that vast mass of the population of Western Europe whose condition was servile or semi-servile--the Roman and German personal slaves, the Roman _coloni_ and the German _lidi_--were concurrently absorbed by the feudal organisation, a few of them assuming a menial relation to the lords, but the greater part receiving land on terms which in those centuries were considered degrading. The tenures created during this era of universal infeudation were as various as the conditions which the tenants made with their new chiefs or were forced to accept from them. As in the case of the benefices, the succession to some, but by no means to all, of the estates followed the rule of Primogeniture. No sooner, however, has the feudal system prevailed throughout the West, than it becomes evident that Primogeniture has some great advantage over every other mode of succession. It spread over Europe with remarkable rapidity, the principal instrument of diffusion being Family Settlements, the Pactes de Famille of France and Haus-Gesetze of Germany, which universally stipulated that lands held by knightly service should descend to the eldest son. Ultimately the law resigned itself to follow inveterate practice, and we find that in all the bodies of Customary Law, which were gradually built up, the eldest son and stock are preferred in the succession to estates of which the tenure is free and military. As to lands held by servile tenures (and originally all tenures were servile which bound the tenant to pay money or bestow manual labour), the system of succession prescribed by custom differed greatly in different countries and different provinces. The more general rule was that such lands were divided equally at death among all the children, but still in some instances the eldest son was preferred, in some the youngest. But Primogeniture usually governed the inheritance of that class of estates, in some respects the most important of all, which were held by tenures that, like the English Socage, were of later origin than the rest, and were neither altogether free nor altogether servile. The diffusion of Primogeniture is usually accounted for by assigning what are called Feudal reasons for it. It is asserted that the feudal superior had a better security for the military service he required when the fief descended to a single person, instead of being distributed among a number on the decease of the last holder. Without denying that this consideration may partially explain the favour gradually acquired by Primogeniture, I must point out that Primogeniture became a custom of Europe much more through its popularity with the tenants than through any advantage it conferred on the lords. For its origin, moreover, the reason given does not account at all. Nothing in law springs entirely from a sense of convenience. There are always certain ideas existing antecedently on which the sense of convenience works, and of which it can do no more than form some new combination; and to find these ideas in the present case is exactly the problem. A valuable hint is furnished to us from a quarter fruitful of such indications. Although in India the possessions of a parent are divisible at his death, and may be divisible during his life, among all his male children in equal shares, and though this principle of the equal distribution of _property_ extends to every part of the Hindoo institutions, yet wherever _public office_ or _political power_ devolves at the decease of the last Incumbent, the succession is nearly universally according to the rules of Primogeniture. Sovereignties descend therefore to the eldest son, and where the affairs of the Village Community, the corporate unit of Hindoo society, are confided to a single manager, it is generally the eldest son who takes up the administration at his parent's death. All offices, indeed, in India, tend to become hereditary, and, when their nature permits it, to vest in the eldest member of the oldest stock. Comparing these Indian successions with some of the ruder social organisations which have survived in Europe almost to our own day, the conclusion suggests itself that, when Patriarchal power is not only _domestic_ but _political_, it is not distributed among all the issue at the parent's death, but is the birthright of the eldest son. The chieftainship of a Highland clan, for example, followed the order of Primogeniture. There seems, in truth, to be a form of family-dependency still more archaic than any of those which we know from the primitive records of organised civil societies. The Agnatic Union of the kindred in ancient Roman law, and a multitude of similar indications, point to a period at which all the ramifying branches of the family tree held together in one organic whole; and it is no presumptuous conjecture, that, when the corporation thus formed by the kindred was in itself an independent society, it was governed by the eldest male of the oldest line. It is true that we have no actual knowledge of any such society. Even in the most elementary communities, family-organisations, as we know them, are at most _imperia in imperio_. But the position of some of them, of the Celtic clans in particular, was sufficiently near independence within historical times to force on us the conviction that they were once separate _imperia_, and that Primogeniture regulated the succession to the chieftainship. It is, however, necessary to be on our guard against modern associations with the term of law. We are speaking of a family-connection still closer and more stringent than any with which we are made acquainted by Hindoo society or ancient Roman law. If the Roman Paterfamilias was visibly steward of the family possessions, if the Hindoo father is only joint-sharer with his sons, still more emphatically must the true patriarchal chieftain be merely the administrator of a common fund. The examples of succession by Primogeniture which were found among the Benefices may, therefore, have been imitated from a system of family-government known to the invading races, though not in general use. Some ruder tribes may have still practised it, or, what is still more probable, society may have been so slightly removed from its more archaic condition that the minds of some men spontaneously recurred to it, when they were called upon to settle the rules of inheritance for a new form of property. But there is still the question, Why did Primogeniture gradually supersede every other principle of succession? The answer, I think, is, that European society decidedly retrograded during the dissolution of the Carlovingian empire. It sank a point or two back even from the miserably low degree which it had marked during the early barbarian monarchies. The great characteristic of the period was the feebleness, or rather the abeyance, of kingly and therefore of civil authority; and hence it seems as if, civil society no longer cohering, men universally flung themselves back on a social organisation older than the beginnings of civil communities. The lord with his vassals, during the ninth and tenth centuries, may be considered as a patriarchal household, recruited, not as in the primitive times by Adoption, but by Infeudation; and to such a confederacy, succession by Primogeniture was a source of strength and durability. So long as the land was kept together on which the entire organisation rested, it was powerful for defence and attack; to divide the land was to divide the little society, and voluntarily to invite aggression in an era of universal violence. We may be perfectly certain that into this preference for Primogeniture there entered no idea of disinheriting the bulk of the children in favour of one. Everybody would have suffered by the division of the fief. Everybody was a gainer by its consolidation. The Family grew stronger by the concentration of power in the same hands; nor is it likely that the lord who was invested with the inheritance had any advantage over his brethren and kinsfolk in occupations, interests, or indulgences. It would be a singular anachronism to estimate the privileges succeeded to by the heir of a fief, by the situation in which the eldest son is placed under an English strict settlement. I have said that I regard the early feudal confederacies as descended from an archaic form of the Family, and as wearing a strong resemblance to it. But then in the ancient world, and in the societies which have not passed through the crucible of feudalism, the Primogeniture which seems to have prevailed never transformed itself into the Primogeniture of the later feudal Europe. When the group of kinsmen ceased to be governed through a series of generations by a hereditary chief, the domain which had been managed for all appears to have been equally divided among all. Why did this not occur in the feudal world? If during the confusions of the first feudal period the eldest son held the land for the behoof of the whole family, why was it that when feudal Europe had consolidated itself, and regular communities were again established, the whole family did not resume that capacity for equal inheritance which had belonged to Roman and German alike? The key which unlocks this difficulty has rarely been seized by the writers who occupy themselves in tracing the genealogy of Feudalism. They perceive the materials of the feudal institutions, but they miss the cement. The ideas and social forms which contributed to the formation of the system were unquestionably barbarian and archaic, but, as soon as Courts and lawyers were called in to interpret and define it, the principles of interpretation which they applied to it were those of the latest Roman jurisprudence, and were therefore excessively refined and matured. In a patriarchally governed society, the eldest son may succeed to the government of the Agnatic group, and to the absolute disposal of its property. But he is not therefore a true proprietor. He has correlative duties not involved in the conception of proprietorship, but quite undefined and quite incapable of definition. The later Roman jurisprudence, however, like our own law, looked upon uncontrolled power over property as equivalent to ownership, and did not, and, in fact, could not, take notice of liabilities of such a kind, that the very conception of them belonged to a period anterior to regular law. The contact of the refined and the barbarous notion had inevitably for its effect the conversion of the eldest son into legal proprietor of the inheritance. The clerical and secular lawyers so defined his position from the first; but it was only by insensible degrees that the younger brother, from participating on equal terms in all the dangers and enjoyments of his kinsman, sank into the priest, the soldier of fortune, or the hanger-on of the mansion. The legal revolution was identical with that which occurred on a smaller scale, and in quite recent times, through the greater part of the Highlands of Scotland. When called in to determine the legal powers of the chieftain over the domains which gave sustenance to the clan, Scottish jurisprudence had long since passed the point at which it could take notice of the vague limitations on completeness of dominion imposed by the claims of the clansmen, and it was inevitable therefore that it should convert the patrimony of many into the estate of one. For the sake of simplicity I have called the mode of succession Primogeniture whenever a single son or descendant succeeds to the authority over a household or society. It is remarkable, however, that in the few very ancient examples which remain to us of this sort of succession, it is not always the eldest son, in the sense familiar to us, who takes up the representation. The form of Primogeniture which has spread over Western Europe has also been perpetuated among the Hindoos, and there is every reason to believe that it is the normal form. Under it, not only the eldest son, but the eldest line is always preferred. If the eldest son fails, his eldest son has precedence not only over brothers but over uncles; and, if he too fails, the same rule is followed in the next generation. But when the succession is not merely to _civil_ but to _political_ power, a difficulty may present itself which will appear of greater magnitude according as the cohesion of society is less perfect. The chieftain who last exercised authority may have outlived his eldest son, and the grandson who is primarily entitled to succeed may be too young and immature to undertake the actual guidance of the community, and the administration of its affairs. In such an event, the expedient which suggests itself to the more settled societies is to place the infant heir under guardianship till he reaches the age of fitness for government. The guardianship is generally that of the male Agnates; but it is remarkable that the contingency supposed is one of the rare cases in which ancient societies have consented to the exercise of power by women, doubtless out of respect to the overshadowing claims of the mother. In India, the widow of a Hindoo sovereign governs in the name of her infant son, and we cannot but remember that the custom regulating succession to the throne of France--which, whatever be its origin, is doubtless of the highest antiquity--preferred the queen-mother to all other claimants for the Regency, at the same time that it rigorously excluded all females from the throne. There is, however, another mode of obviating the inconvenience attending the devolution of sovereignty on an infant heir, and it is one which would doubtless occur spontaneously to rudely organised communities. This is to set aside the infant heir altogether, and confer the chieftainship on the eldest surviving male of the first generation. The Celtic clan-associations, among the many phenomena which they have preserved of an age in which civil and political society were not yet even rudimentarily separated, have brought down this rule of succession to historical times. With them, it seems to have existed in the form of a positive canon, that, failing the eldest son, his next brother succeeds in priority to all grandsons, whatever be their age at the moment when the sovereignty devolves. Some writers have explained the principle by assuming that the Celtic customs took the last chieftain as a sort of root or stock, and then gave the succession to the descendant who should be least remote from him; the uncle thus being preferred to the grandson as being nearer to the common root. No objection can be taken to this statement if it be merely intended as a description of the system of succession; but it would be a serious error to conceive the men who first adopted the rule as applying a course of reasoning which evidently dates from the time when feudal schemes of succession begun to be debated among lawyers. The true origin of the preference of the uncle to the grandson is doubtless a simple calculation on the part of rude men in a rude society that it is better to be governed by a grown chieftain than by a child, and that the younger son is more likely to have come to maturity than any of the eldest son's descendants. At the same time, we have some evidence that the form of Primogeniture with which we are best acquainted is the primary form, in the tradition that the assent of the clan was asked when an infant heir was passed over in favour of his uncle. There is a tolerably well authenticated instance of this ceremony in the annals of the Macdonalds. Under Mahometan law, which has probably preserved an ancient Arabian custom, inheritances of property are divided equally among sons, the daughters taking a half share; but if any of the children die before the division of the inheritance, leaving issue behind, these grandchildren are entirely excluded by their uncles and aunts. Consistently with this principle, the succession, when political authority devolves, is according to the form of Primogeniture which appears to have obtained among the Celtic societies. In the two great Mahometan families of the West, the rule is believed to be, that the uncle succeeds to the throne in preference to the nephew, though the latter be the son of an elder brother; but though this rule has been followed quite recently in Egypt, I am informed that there is some doubt as to its governing the devolution of the Turkish sovereignty. The policy of the Sultans has in fact hitherto prevented cases for its application from occurring, and it is possible that their wholesale massacres of their younger brothers may have been perpetuated quite as much in the interest of their children as for the sake of making away with dangerous competitors for the throne. It is evident, however, that in polygamous societies the form of Primogeniture will always tend to vary. Many considerations may constitute a claim on the succession, the rank of the mother, for example, or her degree in the affections of the father. Accordingly, some of the Indian Mahometan sovereigns, without pretending to any distinct testamentary power, claim the right of nominating the son who is to succeed. The _blessing_ mentioned in the Scriptural history of Isaac and his sons has sometimes been spoken of as a will, but it seems rather to have been a mode of naming an eldest son. CHAPTER VIII THE EARLY HISTORY OF PROPERTY The Roman Institutional Treatises, after giving their definition of the various forms and modifications of ownership, proceed to discuss the Natural Modes of Acquiring Property. Those who are unfamiliar with the history of jurisprudence are not likely to look upon these "natural modes" of acquisition as possessing, at first sight, either much speculative or much practical interest. The wild animal which is snared or killed by the hunter, the soil which is added to our field by the imperceptible deposits of a river, the tree which strikes its roots into our ground, are each said by the Roman lawyers to be acquired by us _naturally_. The older jurisconsults had doubtless observed that such acquisitions were universally sanctioned by the usages of the little societies around them, and thus the lawyers of a later age, finding them classed in the ancient Jus Gentium, and perceiving them to be of the simplest description, allotted them a place among the ordinances of Nature. The dignity with which they were invested has gone on increasing in modern times till it is quite out of proportion to their original importance. Theory has made them its favourite food, and has enabled them to exercise the most serious influence on practice. It will be necessary for us to attend to one only among these "natural modes of acquisition," Occupatio or Occupancy. Occupancy is the advisedly taking possession of that which at the moment is the property of no man, with the view (adds the technical definition) of acquiring property in it for yourself. The objects which the Roman lawyers called _res nullius_--things which have not or have never had an owner--can only be ascertained by enumerating them. Among things which _never had_ an owner are wild animals, fishes, wild fowl, jewels disinterred for the first time, and lands newly discovered or never before cultivated. Among things which _have not_ an owner are moveables which have been abandoned, lands which have been deserted, and (an anomalous but most formidable item) the property of an enemy. In all these objects the full rights of dominion were acquired by the _Occupant_ who first took possession of them with the intention of keeping them as his own--an intention which, in certain cases, had to be manifested by specific acts. It is not difficult, I think, to understand the universality which caused the practice of Occupancy to be placed by one generation of Roman lawyers in the Law common to all Nations, and the simplicity which occasioned its being attributed by another to the Law of Nature. But for its fortunes in modern legal history we are less prepared by _à priori_ considerations. The Roman principle of Occupancy, and the rules into which the jurisconsults expanded it, are the source of all modern International Law on the subject of Capture in War and of the acquisition of sovereign rights in newly discovered countries. They have also supplied a theory of the Origin of Property, which is at once the popular theory, and the theory which, in one form or another, is acquiesced in by the great majority of speculative jurists. I have said that the Roman principle of Occupancy has determined the tenor of that chapter of International Law which is concerned with Capture in War. The Law of Warlike Capture derives its rules from the assumption that communities are remitted to a state of nature by the outbreak of hostilities, and that, in the artificial natural condition thus produced, the institution of private property falls into abeyance so far as concerns the belligerents. As the later writers on the Law of Nature have always been anxious to maintain that private property was in some sense sanctioned by the system which they were expounding, the hypothesis that an enemy's property is _res nullius_ has seemed to them perverse and shocking, and they are careful to stigmatise it as a mere fiction of jurisprudence. But, as soon as the Law of Nature is traced to its source in the Jus Gentium, we see at once how the goods of an enemy came to be looked upon as nobody's property, and therefore as capable of being acquired by the first occupant. The idea would occur spontaneously to persons practising the ancient forms of Warfare, when victory dissolved the organisation of the conquering army and dismissed the soldiers to indiscriminate plunder. It is probable, however, that originally it was only moveable property which was thus permitted to be acquired by the Captor. We know on independent authority that a very different rule prevailed in ancient Italy as to the acquisition of ownership in the soil of a conquered country, and we may therefore suspect that the application of the principle of occupancy to land (always a matter of difficulty) dates from the period when the Jus Gentium was becoming the Code of Nature, and that it is the result of a generalisation effected by the jurisconsults of the golden age. Their dogmas on the point are preserved in the Pandects of Justinian, and amount to an unqualified assertion that enemy's property of every sort is _res nullius_ to the other belligerent, and that Occupancy, by which the Captor makes them his own, is an institution of Natural Law. The rules which International jurisprudence derives from these positions have sometimes been stigmatised as needlessly indulgent to the ferocity and cupidity of combatants, but the charge has been made, I think, by persons who are unacquainted with the history of wars, and who are consequently ignorant how great an exploit it is to command obedience for a rule of any kind. The Roman principle of Occupancy, when it was admitted into the modern law of Capture in War, drew with it a number of subordinate canons, limiting and giving precision to its operation, and if the contests which have been waged since the treatise of Grotius became an authority, are compared with those of an earlier date, it will be seen that, as soon as the Roman maxims were received, Warfare instantly assumed a more tolerable complexion. If the Roman law of Occupancy is to be taxed with having had pernicious influence on any part of the modern Law of Nations, there is another chapter in it which may be said, with some reason, to have been injuriously affected. In applying to the discovery of new countries the same principles which the Romans had applied to the finding of a jewel, the Publicists forced into their service a doctrine altogether unequal to the task expected from it. Elevated into extreme importance by the discoveries of the great navigators of the fifteenth and sixteenth centuries, it raised more disputes than it solved. The greatest uncertainty was very shortly found to exist on the very two points on which certainty was most required, the extent of the territory which was acquired for his sovereign by the discoverer, and the nature of the acts which were necessary to complete the _adprehensio_ or assumption of sovereign possession. Moreover, the principle itself, conferring as it did such enormous advantages as the consequence of a piece of good luck, was instinctively mutinied against by some of the most adventurous nations in Europe, the Dutch, the English, and the Portuguese. Our own countrymen, without expressly denying the rule of International Law, never did, in practice, admit the claim of the Spaniards to engross the whole of America south of the Gulf of Mexico, or that of the King of France to monopolise the valleys of the Ohio and the Mississippi. From the accession of Elizabeth to the accession of Charles the Second, it cannot be said that there was at any time thorough peace in the American waters, and the encroachments of the New England Colonists on the territory of the French King continued for almost a century longer. Bentham was so struck with the confusion attending the application of the legal principle, that he went out of his way to eulogise the famous Bull of Pope Alexander the Sixth, dividing the undiscovered countries of the world between the Spaniards and Portuguese by a line drawn one hundred leagues West of the Azores; and, grotesque as his praises may appear at first sight, it may be doubted whether the arrangement of Pope Alexander is absurder in principle than the rule of Public law, which gave half a continent to the monarch whose servants had fulfilled the conditions required by Roman jurisprudence for the acquisition of property in a valuable object which could be covered by the hand. To all who pursue the inquiries which are the subject of this volume, Occupancy is pre-eminently interesting on the score of the service it has been made to perform for speculative jurisprudence, in furnishing a supposed explanation of the origin of private property. It was once universally believed that the proceeding implied in Occupancy was identical with the process by which the earth and its fruits, which were at first in common, became the allowed property of individuals. The course of thought which led to this assumption is not difficult to understand, if we seize the shade of difference which separates the ancient from the modern conception of Natural Law. The Roman lawyers had laid down that Occupancy was one of the Natural modes of acquiring property, and they undoubtedly believed that, were mankind living under the institutions of Nature, Occupancy would be one of their practices. How far they persuaded themselves that such a condition of the race had ever existed, is a point, as I have already stated, which their language leaves in much uncertainty; but they certainly do seem to have made the conjecture, which has at all times possessed much plausibility, that the institution of property was not so old as the existence of mankind. Modern jurisprudence, accepting all their dogmas without reservation, went far beyond them in the eager curiosity with which it dwelt on the supposed state of Nature. Since then it had received the position that the earth and its fruits were once _res nullius_, and since its peculiar view of Nature led it to assume without hesitation that the human race had actually practised the Occupancy of _res nullius_ long before the organisation of civil societies, the inference immediately suggested itself that Occupancy was the process by which the "no man's goods" of the primitive world became the private property of individuals in the world of history. It would be wearisome to enumerate the jurists who have subscribed to this theory in one shape or another, and it is the less necessary to attempt it because Blackstone, who is always a faithful index of the average opinions of his day, has summed them up in his 2nd book and 1st chapter. "The earth," he writes, "and all things therein were the general property of mankind from the immediate gift of the Creator. Not that the communion of goods seems ever to have been applicable, even in the earliest ages, to aught but the substance of the thing; nor could be extended to the use of it. For, by the law of nature and reason he who first began to use it acquired therein a kind of transient property that lasted so long as he was using it, and no longer; or to speak with greater precision, the right of possession continued for the same time only that the act of possession lasted. Thus the ground was in common, and no part was the permanent property of any man in particular; yet whoever was in the occupation of any determined spot of it, for rest, for shade, or the like, acquired for the time a sort of ownership, from which it would have been unjust and contrary to the law of nature to have driven him by force, but the instant that he quitted the use of occupation of it, another might seize it without injustice." He then proceeds to argue that "when mankind increased in number, it became necessary to entertain conceptions of more permanent dominion, and to appropriate to individuals not the immediate use only, but the very substance of the thing to be used." Some ambiguities of expression in this passage lead to the suspicion that Blackstone did not quite understand the meaning of the proposition which he found in his authorities, that property in the earth's surface was first acquired, under the law of Nature, by the _occupant_; but the limitation which designedly or through misapprehension he has imposed on the theory brings it into a form which it has not infrequently assumed. Many writers more famous than Blackstone for precision of language have laid down that, in the beginning of things, Occupancy first gave a right against the world to an exclusive but temporary enjoyment, and that afterwards this right, while it remained exclusive, became perpetual. Their object in so stating their theory was to reconcile the doctrine that in the state of Nature _res nullius_ became property through Occupancy, with the inference which they drew from the Scriptural history that the Patriarchs did not at first permanently appropriate the soil which had been grazed over by their flocks and herds. The only criticism which could be directly applied to the theory of Blackstone would consist in inquiring whether the circumstances which make up his picture of a primitive society are more or less probable than other incidents which could be imagined with equal readiness. Pursuing this method of examination, we might fairly ask whether the man who had _occupied_ (Blackstone evidently uses this word with its ordinary English meaning) a particular spot of ground for rest or shade would be permitted to retain it without disturbance. The chances surely are that his right to possession would be exactly coextensive with his power to keep it, and that he would be constantly liable to disturbance by the first comer who coveted the spot and thought himself strong enough to drive away the possessor. But the truth is that all such cavil at these positions is perfectly idle from the very baselessness of the positions themselves. What mankind did in the primitive state may not be a hopeless subject of inquiry, but of their motives for doing it it is impossible to know anything. These sketches of the plight of human beings in the first ages of the world are effected by first supposing mankind to be divested of a great part of the circumstances by which they are now surrounded, and by then assuming that, in the condition thus imagined, they would preserve the same sentiments and prejudices by which they are now actuated,--although, in fact, these sentiments may have been created and engendered by those very circumstances of which, by the hypothesis, they are to be stripped. There is an aphorism of Savigny which has been sometimes thought to countenance a view of the origin of property somewhat similar to the theories epitomised by Blackstone. The great German jurist has laid down that all Property is founded on Adverse Possession ripened by Prescription. It is only with respect to Roman law that Savigny makes this statement, and before it can fully be appreciated much labour must be expended in explaining and defining the expressions employed. His meaning will, however, be indicated with sufficient accuracy if we consider him to assert that, how far soever we carry our inquiry into the ideas of property received among the Romans, however closely we approach in tracing them to the infancy of law, we can get no farther than a conception of ownership involving the three elements in the canon--Possession, Adverseness of Possession, that is a holding not permissive or subordinate, but exclusive against the world, and Prescription, or a period of time during which the Adverse Possession has uninterruptedly continued. It is exceedingly probable that this maxim might be enunciated with more generality than was allowed to it by its author, and that no sound or safe conclusion can be looked for from investigations into any system of laws which are pushed farther back than the point at which these combined ideas constitute the notion of proprietary right. Meantime, so far from bearing out the popular theory of the origin of property, Savigny's canon is particularly valuable as directing our attention to its weakest point. In the view of Blackstone and those whom he follows, it was the mode of assuming the exclusive enjoyment which mysteriously affected the minds of the fathers of our race. But the mystery does not reside here. It is not wonderful that property began in adverse possession. It is not surprising that the first proprietor should have been the strong man armed who kept his goods in peace. But why it was that lapse of time created a sentiment of respect for his possession--which is the exact source of the universal reverence of mankind for that which has for a long period _de facto_ existed--are questions really deserving the profoundest examination, but lying far beyond the boundary of our present inquiries. Before pointing out the quarter in which we may hope to glean some information, scanty and uncertain at best, concerning the early history of proprietary right, I venture to state my opinion that the popular impression in reference to the part played by Occupancy in the first stages of civilisation directly reverses the truth. Occupancy is the advised assumption of physical possession; and the notion that an act of this description confers a title to "res nullius," so far from being characteristic of very early societies, is in all probability the growth of a refined jurisprudence and of a settled condition of the laws. It is only when the rights of property have gained a sanction from long practical inviolability and when the vast majority of the objects of enjoyment have been subjected to private ownership, that mere possession is allowed to invest the first possessor with dominion over commodities in which no prior proprietorship has been asserted. The sentiment in which this doctrine originated is absolutely irreconcilable with that infrequency and uncertainty of proprietary rights which distinguish the beginnings of civilisation. Its true basis seems to be, not an instinctive bias towards the institution of Property, but a presumption arising out of the long continuance of that institution, that _everything ought to have an owner_. When possession is taken of a "res nullius," that is, of an object which _is_ not, or has _never_ been, reduced to dominion, the possessor is permitted to become proprietor from a feeling that all valuable things are naturally the subjects of an exclusive enjoyment, and that in the given case there is no one to invest with the right of property except the Occupant. The Occupant in short, becomes the owner, because all things are presumed to be somebody's property and because no one can be pointed out as having a better right than he to the proprietorship of this particular thing. Even were there no other objection to the descriptions of mankind in their natural state which we have been discussing, there is one particular in which they are fatally at variance with the authentic evidence possessed by us. It will be observed that the acts and motives which these theories suppose are the acts and motives of Individuals. It is each Individual who for himself subscribes the Social Compact. It is some shifting sandbank in which the grains are Individual men, that according to the theory of Hobbes is hardened into the social rock by the wholesome discipline of force. It is an Individual who, in the picture drawn by Blackstone, "is in the occupation of a determined spot of ground for rest, for shade, or the like." The vice is one which necessarily afflicts all the theories descended from the Natural Law of the Romans, which differed principally from their Civil Law in the account which it took of Individuals, and which has rendered precisely its greatest service to civilisation in enfranchising the individual from the authority of archaic society. But Ancient Law, it must again be repeated, knows next to nothing of Individuals. It is concerned not with Individuals, but with Families, not with single human beings, but groups. Even when the law of the State has succeeded in permeating the small circles of kindred into which it had originally no means of penetrating, the view it takes of Individuals is curiously different from that taken by jurisprudence in its maturest stage. The life of each citizen is not regarded as limited by birth and death; it is but a continuation of the existence of his forefathers, and it will be prolonged in the existence of his descendants. The Roman distinction between the Law of Persons and the Law of Things, which though extremely convenient is entirely artificial, has evidently done much to divert inquiry on the subject before us from the true direction. The lessons learned in discussing the Jus Personarum have been forgotten where the Jus Rerum is reached, and Property, Contract, and Delict, have been considered as if no hints concerning their original nature were to be gained from the facts ascertained respecting the original condition of Persons. The futility of this method would be manifest if a system of pure archaic law could be brought before us, and if the experiment could be tried of applying to it the Roman classifications. It would soon be seen that the separation of the Law of Persons from that of Things has no meaning in the infancy of law, that the rules belonging to the two departments are inextricably mingled together, and that the distinctions of the later jurists are appropriate only to the later jurisprudence. From what has been said in the earlier portions of this treatise, it will be gathered that there is a strong _à priori_ improbability of our obtaining any clue to the early history of property, if we confine our notice to the proprietary rights of individuals. It is more than likely that joint-ownership, and not separate ownership, is the really archaic institution, and that the forms of property which will afford us instruction will be those which are associated with the rights of families and of groups of kindred. The Roman jurisprudence will not here assist in enlightening us, for it is exactly the Roman jurisprudence which, transformed by the theory of Natural Law, has bequeathed to the moderns the impression that individual ownership is the normal state of proprietary right, and that ownership in common by groups of men is only the exception to a general rule. There is, however, one community which will always be carefully examined by the inquirer who is in quest of any lost institution of primeval society. How far soever any such institution may have undergone change among the branch of the Indo-European family which has been settled for ages in India, it will seldom be found to have entirely cast aside the shell in which it was originally reared. It happens that, among the Hindoos, we do find a form of ownership which ought at once to rivet our attention from its exactly fitting in with the ideas which our studies in the Law of Persons would lead us to entertain respecting the original condition of property. The Village Community of India is at once an organised patriarchal society and an assemblage of co-proprietors. The personal relations to each other of the men who compose it are indistinguishably confounded with their proprietary rights, and to the attempts of English functionaries to separate the two may be assigned some of the most formidable miscarriages of Anglo-Indian administration. The Village Community is known to be of immense antiquity. In whatever direction research has been pushed into Indian history, general or local, it has always found the Community in existence at the farthest point of its progress. A great number of intelligent and observant writers, most of whom had no theory of any sort to support concerning its nature and origin, agree in considering it the least destructible institution of a society which never willingly surrenders any one of its usages to innovation. Conquests and revolutions seem to have swept over it without disturbing or displacing it, and the most beneficent systems of government in India have always been those which have recognised it as the basis of administration. The mature Roman law, and modern jurisprudence following in its wake, look upon co-ownership as an exceptional and momentary condition of the rights of property. This view is clearly indicated in the maxim which obtains universally in Western Europe, _Nemo in communione potest invitus detineri_ ("No one can be kept in co-proprietorship against his will"). But in India this order of ideas is reversed, and it may be said that separate proprietorship is always on its way to become proprietorship in common. The process has been adverted to already. As soon as a son is born, he acquires a vested interest in his father's substance, and on attaining years of discretion he is even, in certain contingencies, permitted by the letter of the law to call for a partition of the family estate. As a fact, however, a division rarely takes place even at the death of the father, and the property constantly remains undivided for several generations, though every member of every generation has a legal right to an undivided share in it. The domain thus held in common is sometimes administered by an elected manager, but more generally, and in some provinces always, it is managed by the eldest agnate, by the eldest representative of the eldest line of the stock. Such an assemblage of joint proprietors, a body of kindred holding a domain in common, is the simplest form of an Indian Village Community, but the Community is more than a brotherhood of relatives and more than an association of partners. It is an organised society, and besides providing for the management of the common fund, it seldom fails to provide, by a complete staff of functionaries, for internal government, for police, for the administration of justice, and for the apportionment of taxes and public duties. The process which I have described as that under which a Village Community is formed, may be regarded as typical. Yet it is not to be supposed that every Village Community in India drew together in so simple a manner. Although, in the North of India, the archives, as I am informed, almost invariably show that the Community was founded by a single assemblage of blood-relations, they also supply information that men of alien extraction have always, from time to time, been engrafted on it, and a mere purchaser of a share may generally, under certain conditions, be admitted to the brotherhood. In the South of the Peninsula there are often Communities which appear to have sprung not from one but from two or more families; and there are some whose composition is known to be entirely artificial; indeed, the occasional aggregation of men of different castes in the same society is fatal to the hypothesis of a common descent. Yet in all these brotherhoods either the tradition is preserved, or the assumption made, of an original common parentage. Mountstuart Elphinstone, who writes more particularly of the Southern Village Communities, observes of them (_History of India_, i. 126): "The popular notion is that the Village landholders are all descended from one or more individuals who settled the village; and that the only exceptions are formed by persons who have derived their rights by purchase or otherwise from members of the original stock. The supposition is confirmed by the fact that, to this day, there are only single families of landholders in small villages and not many in large ones; but each has branched out into so many members that it is not uncommon for the whole agricultural labour to be done by the landholders, without the aid either of tenants or of labourers. The rights of the landholders are theirs collectively and, though they almost always have a more or less perfect partition of them, they never have an entire separation. A landholder, for instance, can sell or mortgage his rights; but he must first have the consent of the Village, and the purchaser steps exactly into his place and takes up all his obligations. If a family becomes extinct, its share returns to the common stock." Some considerations which have been offered in the fifth chapter of this volume will assist the reader, I trust, in appreciating the significance of Elphinstone's language. No institution of the primitive world is likely to have been preserved to our day, unless it has acquired an elasticity foreign to its original nature through some vivifying legal fiction. The Village Community then is not necessarily an assemblage of blood-relations, but it is _either_ such an assemblage _or_ a body of co-proprietors formed on the model of an association of kinsmen. The type with which it should be compared is evidently not the Roman Family, but the Roman Gens or House. The Gens was also a group on the model of the family; it was the family extended by a variety of fictions of which the exact nature was lost in antiquity. In historical times, its leading characteristics were the very two which Elphinstone remarks in the Village Community. There was always the assumption of a common origin, an assumption sometimes notoriously at variance with fact; and, to repeat the historian's words, "if a family became extinct, its share returned to the common stock." In old Roman law, unclaimed inheritances escheated to the Gentiles. It is further suspected by all who have examined their history that the Communities, like the Gentes, have been very generally adulterated by the admission of strangers, but the exact mode of absorption cannot now be ascertained. At present, they are recruited, as Elphinstone tells us, by the admission of purchasers, with the consent of the brotherhood. The acquisition of the adopted member is, however, of the nature of a universal succession; together with the share he has bought, he succeeds to the liabilities which the vendor had incurred towards the aggregate group. He is an Emptor Familiæ, and inherits the legal clothing of the person whose place he begins to fill. The consent of the whole brotherhood required for his admission may remind us of the consent which the Comitia Curiata, the Parliament of that larger brotherhood of self-styled kinsmen, the ancient Roman commonwealth, so strenuously insisted on as essential to the legalisation of an Adoption or the confirmation of a Will. The tokens of an extreme antiquity are discoverable in almost every single feature of the Indian Village Communities. We have so many independent reasons for suspecting that the infancy of law is distinguished by the prevalence of co-ownership by the intermixture of personal with proprietary rights, and by the confusion of public with private duties, that we should be justified in deducing many important conclusions from our observation of these proprietary brotherhoods, even if no similarly compounded societies could be detected in any other part of the world. It happens, however, that much earnest curiosity has been very recently attracted to a similar set of phenomena in those parts of Europe which have been most slightly affected by the feudal transformation of property, and which in many important particulars have as close an affinity with the Eastern as with the Western world. The researches of M. de Haxthausen, M. Tengoborski, and others, have shown us that the Russian villages are not fortuitous assemblages of men, nor are they unions founded on contract; they are naturally organised communities like those of India. It is true that these villages are always in theory the patrimony of some noble proprietor and the peasants have within historical times been converted into the predial, and to a great extent into the personal, serfs of the seignior. But the pressure of this superior ownership has never crushed the ancient organisation of the village, and it is probable that the enactment of the Czar of Russia, who is supposed to have introduced serfdom, was really intended to prevent the peasants from abandoning that co-operation without which the old social order could not long be maintained. In the assumption of an agnatic connection between the villagers, in the blending of personal rights with privileges of ownership, and in a variety of spontaneous provisions for internal administration, the Russian Village appears to be a nearly exact repetition of the Indian Community; but there is one important difference which we note with the greatest interest. The co-owners of an Indian village, though their property is blended, have their rights distinct, and this separation of rights is complete and continues indefinitely. The severance of rights is also theoretically complete in a Russian village, but there it is only temporary. After the expiration of a given, but not in all cases of the same, period separate ownerships are extinguished, the land of the village is thrown into a mass, and then it is re-distributed among the families composing the community, according to their number. This repartition having been effected, the rights of families and of individuals are again allowed to branch out into various lines, which they continue to follow till another period of division comes round. An even more curious variation from this type of ownership occurs in some of those countries which long formed a debateable land between the Turkish empire and the possessions of the House of Austria. In Servia, in Croatia, and the Austrian Sclavonia, the villages are also brotherhoods of persons who are at once co-owners and kinsmen; but there the internal arrangements of the community differ from those adverted to in the last two examples. The substance of the common property is in this case neither divided in practice nor considered in theory as divisible, but the entire land is cultivated by the combined labour of all the villagers, and the produce is annually distributed among the households, sometimes according to their supposed wants, sometimes according to rules which give to particular persons a fixed share of the usufruct. All these practices are traced by the jurists of the East of Europe to a principle which is asserted to be found in the earliest Sclavonian laws, the principle that the property of families cannot be divided for a perpetuity. The great interest of these phenomena in an inquiry like the present arises from the light they throw on the development of distinct proprietary rights _inside_ the groups by which property seems to have been originally held. We have the strongest reason for thinking that property once belonged not to individuals nor even to isolated families, but to larger societies composed on the patriarchal model; but the mode of transition from ancient to modern ownerships, obscure at best, would have been infinitely obscurer if several distinguishable forms of Village Communities had not been discovered and examined. It is worth while to attend to the varieties of internal arrangement within the patriarchal groups which are, or were till recently, observable among races of Indo-European blood. The chiefs of the ruder Highland clans used, it is said, to dole out food to the heads of the households under their jurisdiction at the very shortest intervals, and sometimes day by day. A periodical distribution is also made to the Sclavonian villagers of the Austrian and Turkish provinces by the elders of their body, but then it is a distribution once for all of the total produce of the year. In the Russian villages, however, the substance of the property ceases to be looked upon as indivisible, and separate proprietary claims are allowed freely to grow up, but then the progress of separation is peremptorily arrested after it has continued a certain time. In India, not only is there no indivisibility of the common fund, but separate proprietorship in parts of it may be indefinitely prolonged and may branch out into any number of derivative ownerships, the _de facto_ partition of the stock being, however, checked by inveterate usage, and by the rule against the admission of strangers without the consent of the brotherhood. It is not of course intended to insist that these different forms of the Village Community represent distinct stages in a process of transmutation which has been everywhere accomplished in the same manner. But, though the evidence does not warrant our going so far as this, it renders less presumptuous the conjecture that private property, in the shape in which we know it, was chiefly formed by the gradual disentanglement of the separate rights of individuals from the blended rights of a community. Our studies in the Law of Persons seemed to show us the Family expanding into the Agnatic group of kinsmen, then the Agnatic group dissolving into separate households; lastly the household supplanted by the individual; and it is now suggested that each step in the change corresponds to an analogous alteration in the nature of Ownership. If there be any truth in the suggestion, it is to be observed that it materially affects the problem which theorists on the origin of Property have generally proposed to themselves. The question--perhaps an insoluble one--which they have mostly agitated is, what were the motives which first induced men to respect each other's possessions? It may still be put, without much hope of finding an answer to it, in the form of any inquiry into the reasons which led one composite group to keep aloof from the domain of another. But, if it be true that far the most important passage in the history of Private Property is its gradual elimination from the co-ownership of kinsmen, then the great point of inquiry is identical with that which lies on the threshold of all historical law--what were the motives which originally prompted men to hold together in the family union? To such a question, Jurisprudence, unassisted by other sciences, is not competent to give a reply. The fact can only be noted. The undivided state of property in ancient societies is consistent with a peculiar sharpness of division, which shows itself as soon as any single share is completely separated from the patrimony of the group. This phenomenon springs, doubtless, from the circumstance that the property is supposed to become the domain of a new group, so that any dealing with it, in its divided state, is a transaction between two highly complex bodies. I have already compared Ancient Law to Modern International Law, in respect of the size and complexity of the corporate associations, whose rights and duties it settles. As the contracts and conveyances known to ancient law are contracts and conveyances to which not single individuals, but organised companies of men, are parties, they are in the highest degree ceremonious; they require a variety of symbolical acts and words intended to impress the business on the memory of all who take part in it; and they demand the presence of an inordinate number of witnesses. From these peculiarities, and others allied to them, springs the universally unmalleable character of the ancient forms of property. Sometimes the patrimony of the family is absolutely inalienable, as was the case with the Sclavonians, and still oftener, though alienations may not be entirely illegitimate, they are virtually impracticable, as among most of the Germanic tribes, from the necessity of having the consent of a large number of persons to the transfer. Where these impediments do not exist, or can be surmounted, the act of conveyance itself is generally burdened with a perfect load of ceremony, in which not one iota can be safely neglected. Ancient law uniformly refuses to dispense with a single gesture, however grotesque; with a single syllable, however its meaning may have been forgotten; with a single witness, however superfluous may be his testimony. The entire solemnities must be scrupulously completed by persons legally entitled to take part in them, or else the conveyance is null, and the seller is re-established in the rights of which he had vainly attempted to divest himself. These various obstacles to the free circulation of the objects of use and enjoyment, begin of course to make themselves felt as soon as society has acquired even a slight degree of activity, and the expedients by which advancing communities endeavour to overcome them form the staple of the history of Property. Of such expedients there is one which takes precedence of the rest from its antiquity and universality. The idea seems to have spontaneously suggested itself to a great number of early societies, to classify property into kinds. One kind or sort of property is placed on a lower footing of dignity than the others, but at the same time is relieved from the fetters which antiquity has imposed on them. Subsequently, the superior convenience of the rules governing the transfer and descent of the lower order of property becomes generally recognised, and by a gradual course of innovation the plasticity of the less dignified class of valuable objects is communicated to the classes which stand conventionally higher. The history of Roman Property Law is the history of the assimilation of Res Mancipi to Res Nec Mancipi. The history of Property on the European Continent is the history of the subversion of the feudalised law of land by the Romanised law of moveables; and, though the history of ownership in England is not nearly completed, it is visibly the law of personalty which threatens to absorb and annihilate the law of realty. The only _natural_ classification of the objects of enjoyment, the only classification which corresponds with an essential difference in the subject-matter, is that which divides them into Moveables and Immoveables. Familiar as is this classification to jurisprudence, it was very slowly developed by Roman law, from which we inherit it, and was only finally adopted by it in its latest stage. The classifications of Ancient Law have sometimes a superficial resemblance to this. They occasionally divide property into categories, and place immoveables in one of them; but then it is found that they either class along with immoveables a number of objects which have no sort of relation with them, or else divorce them from various rights to which they have a close affinity. Thus, the Res Mancipi of Roman Law included not only land, but slaves, horses, and oxen. Scottish law ranks with land a certain class of securities, and Hindoo law associates it with slaves. English law, on the other hand, parts leases of land for years from other interests in the soil, and joins them to personalty under the name of chattels real. Moreover, the classifications of Ancient Law are classifications implying superiority and inferiority; while the distinction between moveables and immoveables, so long at least as it was confined to Roman jurisprudence, carried with it no suggestion whatever of a difference in dignity. The Res Mancipi, however, did certainly at first enjoy a precedence over the Res Nec Mancipi, as did heritable property in Scotland and realty in England, over the personalty to which they were opposed. The lawyers of all systems have spared no pains in striving to refer these classifications to some intelligible principle; but the reasons of the severance must ever be vainly sought for in the philosophy of law: they belong not to its philosophy, but to its history. The explanation which appears to cover the greatest number of instances is, that the objects of enjoyment honoured above the rest were the forms of property known first and earliest to each particular community, and dignified therefore emphatically with the designation of _Property_. On the other hand, the articles not enumerated among the favoured objects seem to have been placed on a lower standing, because the knowledge of their value was posterior to the epoch at which the catalogue of superior property was settled. They were at first unknown, rare, limited in their uses, or else regarded as mere appendages to the privileged objects. Thus, though the Roman Res Mancipi included a number of moveable articles of great value, still the most costly jewels were never allowed to take rank as Res Mancipi, because they were unknown to the early Romans. In the same way chattels real in England are said to have been degraded to the footing of personalty, from the infrequency and valuelessness of such estates under the feudal land-law. But the grand point of interest is, the continued degradation of these commodities when their importance had increased and their number had multiplied. Why were they not successively included among the favoured objects of enjoyment? One reason is found in the stubbornness with which Ancient Law adheres to its classifications. It is a characteristic both of uneducated minds and of early societies, that they are little able to conceive a general rule apart from the particular applications of it with which they are practically familiar. They cannot dissociate a general term or maxim from the special examples which meet them in daily experience; and in this way the designation covering the best-known forms of property is denied to articles which exactly resemble them in being objects of enjoyment and subjects of right. But to these influences, which exert peculiar force in a subject-matter so stable as that of law, are afterwards added others more consistent with progress in enlightenment and in the conceptions of general expediency. Courts and lawyers become at last alive to the inconvenience of the embarrassing formalities required for the transfer, recovery, or devolution of the favoured commodities, and grow unwilling to fetter the newer descriptions of property with the technical trammels which characterised the infancy of law. Hence arises a disposition to keep these last on a lower grade in the arrangements of Jurisprudence, and to permit their transfer by simpler processes than those which, in archaic conveyances, serve as stumbling-blocks to good faith and stepping-stones to fraud. We are perhaps in some danger of underrating the inconveniences of the ancient modes of transfer. Our instruments of conveyance are written, so that their language, well pondered by the professional draftsman, is rarely defective in accuracy. But an ancient conveyance was not written, but _acted_. Gestures and words took the place of written technical phraseology, and any formula mispronounced, or symbolical act omitted, would have vitiated the proceeding as fatally as a material mistake in stating the uses or setting out the remainders would, two hundred years ago, have vitiated an English deed. Indeed, the mischiefs of the archaic ceremonial are even thus only half stated. So long as elaborate conveyances, written or acted, are required for the alienation of _land_ alone, the chances of mistake are not considerable in the transfer of a description of property which is seldom got rid of with much precipitation. But the higher class of property in the ancient world comprised not only land but several of the commonest and several of the most valuable moveables. When once the wheels of society had begun to move quickly, there must have been immense inconvenience in demanding a highly intricate form of transfer for a horse or an ox, or for the most costly chattel of the old world--the Slave. Such commodities must have been constantly and even ordinarily conveyed with incomplete forms, and held, therefore, under imperfect titles. The Res Mancipi of old Roman law were land--in historical times, land on Italian soil,--slaves and beasts of burden, such as horses and oxen. It is impossible to doubt that the objects which make up the class are the instruments of agricultural labour, the commodities of first consequence to a primitive people. Such commodities were at first, I imagine, called emphatically Things or Property, and the mode of conveyance by which they were transferred was called a Mancipium or Mancipation; but it was not probably till much later that they received the distinctive appellation of Res Mancipi, "Things which require a Mancipation." By their side there may have existed or grown up a class of objects, for which it was not worth while to insist upon the full ceremony of Mancipation. It would be enough if, in transferring these last from owner to owner, a part only of the ordinary formalities were proceeded with, namely, that actual delivery, physical transfer, or _tradition_, which is the most obvious index of a change of proprietorship. Such commodities were the Res Nec Mancipi of the ancient jurisprudence, "things which did not require a Mancipation," little prized probably at first, and not often passed from one group of proprietors to another, While, however, the list of the Res Mancipi was irrevocably closed; that of the Res Nec Mancipi admitted of indefinite expansion; and hence every fresh conquest of man over material nature added an item to the Res Nec Mancipi, or effected an improvement in those already recognised. Insensibly, therefore, they mounted to an equality with the Res Mancipi, and the impression of an intrinsic inferiority being thus dissipated, men began to observe the manifold advantages of the simple formality which accompanied their transfer over the more intricate and more venerable ceremonial. Two of the agents of legal amelioration, Fictions and Equity, were assiduously employed by the Roman lawyers to give the practical effects of a Mancipation to a Tradition: and, though Roman legislators long shrank from enacting that the right of property in a Res Mancipi should be immediately transferred by bare delivery of the article, yet even this step was at last ventured upon by Justinian, in whose jurisprudence the difference between Res Mancipi and Res Nec Mancipi disappears, and Tradition or Delivery becomes the one great conveyance known to the law. The marked preference which the Roman lawyers very early gave to Tradition caused them to assign it a place in their theory which has helped to blind their modern disciples to its true history. It was classed among the "natural" modes of acquisition, both because it was generally practised among the Italian tribes, and because it was a process which attained its object by the simplest mechanism. If the expressions of the jurisconsults be pressed, they undoubtedly imply that Tradition, which belongs to the Law Natural, is more ancient than Mancipation, which is an institution of Civil Society; and this, I need not say, is the exact reverse of the truth. The distinction between Res Mancipi and Res Nec Mancipi is the type of a class of distinctions to which civilisation is much indebted, distinctions which run through the whole mass of commodities, placing a few of them in a class by themselves, and relegating the others to a lower category. The inferior kinds of property are first, from disdain and disregard, released from the perplexed ceremonies in which primitive law delights, and thus afterwards, in another state of intellectual progress, the simple methods of transfer and recovery which have been allowed to come into use serve as a model which condemns by its convenience and simplicity the cumbrous solemnities inherited from ancient days. But, in some societies, the trammels in which Property is tied up are much too complicated and stringent to be relaxed in so easy a manner. Whenever male children have been born to a Hindoo, the law of India, as I have stated, gives them all an interest in his property, and makes their consent a necessary condition of its alienation. In the same spirit, the general usage of the old Germanic peoples--it is remarkable that the Anglo-Saxon customs seem to have been an exception--forbade alienations without the consent of the male children; and the primitive law of the Sclavonians even prohibited them altogether. It is evident that such impediments as these cannot be overcome by a distinction between kinds of property, inasmuch as the difficulty extends to commodities of all sorts; and accordingly, Ancient Law, when once launched on a course of improvement, encounters them with a distinction of another character, a distinction classifying property, not according to its nature but according to its origin. In India, where there are traces of both systems of classification, the one which we are considering is exemplified in the difference which Hindoo law establishes between Inheritances and Acquisitions. The inherited property of the father is shared by the children as soon as they are born; but according to the custom of most provinces, the acquisitions made by him during his lifetime are wholly his own, and can be transferred by him at pleasure. A similar distinction was not unknown to Roman law, in which the earliest innovation on the Parental Powers took the form of a permission given to the son to keep for himself whatever he might have acquired in military service. But the most extensive use ever made of this mode of classification appears to have been among the Germans. I have repeatedly stated that the _allod_, though not inalienable, was commonly transferable with the greatest difficulty; and moreover, it descended exclusively to the agnatic kindred. Hence an extraordinary variety of distinctions came to be recognised, all intended to diminish the inconveniences inseparable from allodial property. The _wehrgeld_, for example, or composition for the homicide of a relative, which occupies so large a space in German jurisprudence, formed no part of the family domain, and descended according to rules of succession altogether different. Similarly, the _reipus_, or fine leviable on the re-marriage of a widow, did not enter into the _allod_ of the person to whom it was paid, and followed a line of devolution in which the privileges of the agnates were neglected. The law, too, as among the Hindoos, distinguished the Acquisitions of the chief of the household from his Inherited property, and permitted him to deal with them under much more liberal conditions. Classifications of the other sort were also admitted, and the familiar distinction drawn between land and moveables; but moveable property was divided into several subordinate categories, to each of which different rules applied. This exuberance of classification, which may strike us as strange in so rude a people as the German conquerors of the Empire, is doubtless to be explained by the presence in their systems of a considerable element of Roman law, absorbed by them during their long sojourn on the confines of the Roman dominion. It is not difficult to trace a great number of the rules governing the transfer and devolution of the commodities which lay outside the _allod_, to their source in Roman jurisprudence, from which they were probably borrowed at widely distant epochs, and in fragmentary importations. How far the obstacles to the free circulation of property were surmounted by such contrivances, we have not the means even of conjecturing, for the distinctions adverted to have no modern history. As I before explained, the allodial form of property was entirely lost in the feudal, and when the consolidation of feudalism was once completed, there was practically but one distinction left standing of all those which had been known to the western world--the distinction between land and goods, immoveables and moveables. Externally this distinction was the same with that which Roman law had finally accepted, but the law of the middle ages differed from that of Rome in distinctly considering immoveable property to be more dignified than moveable. Yet this one sample is enough to show the importance of the class of expedients to which it belongs. In all the countries governed by systems based on the French codes, that is, through much the greatest part of the Continent of Europe, the law of moveables, which was always Roman law, has superseded and annulled the feudal law of land. England is the only country of importance in which this transmutation, though it has gone some way, is not nearly accomplished. Our own, too, it may be added, is the only considerable European country in which the separation of moveables from immoveables has been somewhat disturbed by the same influences which caused the ancient classifications to depart from the only one which is countenanced by nature. In the main, the English distinction has been between land and goods; but a certain class of goods have gone as heir-looms with the land, and a certain description of interests in land have from historical causes been ranked with personalty. This is not the only instance in which English jurisprudence, standing apart from the main current of legal modification, has reproduced phenomena of archaic law. I proceed to notice one or two more contrivances by which the ancient trammels of proprietary right were more or less successfully relaxed, premising that the scheme of this treatise only permits me to mention those which are of great antiquity. On one of them in particular it is necessary to dwell for a moment or two, because persons unacquainted with the early history of law will not be easily persuaded that a principle, of which modern jurisprudence has very slowly and with the greatest difficulty obtained the recognition, was really familiar to the very infancy of legal science. There is no principle in all law which the moderns, in spite of its beneficial character, have been so loath to adopt and to carry to its legitimate consequences as that which was known to the Romans as Usucapion, and which has descended to modern jurisprudence under the name of Prescription. It was a positive rule of the oldest Roman law, a rule older than the Twelve Tables, that commodities which had been uninterruptedly possessed for a certain period became the property of the possessor. The period of possession was exceedingly short--one or two years according to the nature of the commodities--and in historical times Usucapion was only allowed to operate when possession had commenced in a particular way; but I think it likely that at a less advanced epoch possession was converted into ownership under conditions even less severe than we read of in our authorities. As I have said before, I am far from asserting that the respect of men for _de facto_ possession is a phenomenon which jurisprudence can account for by itself, but it is very necessary to remark that primitive societies, in adopting the principle of Usucapion, were not beset with any of the speculative doubts and hesitations which have impeded its reception among the moderns. Prescriptions were viewed by the modern lawyers, first with repugnance, afterwards with reluctant approval. In several countries, including our own, legislation long declined to advance beyond the rude device of barring all actions based on a wrong which had been suffered earlier than a fixed point of time in the past, generally the first year of some preceding reign; nor was it till the middle ages had finally closed, and James the First had ascended the throne of England, that we obtained a true statute of limitation of a very imperfect kind. This tardiness in copying one of the most famous chapters of Roman law, which was no doubt constantly read by the majority of European lawyers, the modern world owes to the influence of the Canon Law. The ecclesiastical customs out of which the Canon Law grew, concerned as they were with sacred or quasi-sacred interests, very naturally regarded the privileges which they conferred as incapable of being lost through disuse however prolonged; and in accordance with this view, the spiritual jurisprudence, when afterwards consolidated, was distinguished by a marked leaning against Prescriptions. It was the fate of the Canon Law, when held up by the clerical lawyers as a pattern to secular legislation, to have a peculiar influence on first principles. It gave to the bodies of custom which were formed throughout Europe far fewer express rules than did the Roman law, but then it seems to have communicated a bias to professional opinion on a surprising number of fundamental points, and the tendencies thus produced progressively gained strength as each system was developed. One of the dispositions it produced was a disrelish for Prescriptions; but I do not know that this prejudice would have operated as powerfully as it has done, if it had not fallen in with the doctrine of the scholastic jurists of the realist sect, who taught that, whatever turn actual legislation might take, a _right_, how long soever neglected, was in point of fact indestructible. The remains of this state of feeling still exist. Wherever the philosophy of law is earnestly discussed, questions respecting the speculative basis of Prescription are always hotly disputed; and it is still a point of the greatest interest in France and Germany, whether a person who has been out of possession for a series of years is deprived of his ownership as a penalty for his neglect, or loses it through the summary interposition of the law in its desire to have a _finis litium_. But no such scruples troubled the mind of early Roman society. Their ancient usages directly took away the ownership of everybody who had been out of possession, under certain circumstances, during one or two years. What was the exact tenor of the rule of Usucapion in its earliest shape, it is not easy to say; but, taken with the limitations which we find attending it in the books, it was a most useful security against the mischiefs of a too cumbrous system of conveyance. In order to have the benefit of Usucapion, it was necessary that the adverse possession should have begun in good faith, that is, with belief on the part of the possessor that he was lawfully acquiring the property, and it was farther required that the commodity should have been transferred to him by some mode of alienation which, however unequal to conferring a complete title in the particular case, was at least recognised by the law. In the case therefore of a Mancipation, however slovenly the performance might have been, yet if it had been carried so far as to involve a Tradition or Delivery, the vice of the title would be cured by Usucapion in two years at most. I know nothing in the practice of the Romans which testifies so strongly to their legal genius as the use which they made of Usucapion. The difficulties which beset them were nearly the same with those which embarrassed and still embarrass the lawyers of England. Owing to the complexity of their system, which as yet they had neither the courage nor the power to reconstruct, actual right was constantly getting divorced from technical right, the equitable ownership from the legal. But Usucapion, as manipulated by the jurisconsults, supplied a self-acting machinery, by which the defects of titles to property were always in course of being cured, and by which the ownerships that were temporarily separated were again rapidly cemented together with the briefest possible delay. Usucapion did not lose its advantages till the reforms of Justinian. But as soon as law and equity had been completely fused, and when Mancipation ceased to be the Roman conveyance, there was no further necessity for the ancient contrivance, and Usucapion, with its periods of time considerably lengthened, became the Prescription which has at length been adopted by nearly all systems of modern law. I pass by with brief mention another expedient having the same object with the last, which, though it did not immediately make its appearance in English legal history, was of immemorial antiquity in Roman law; such indeed is its apparent age that some German civilians, not sufficiently aware of the light thrown on the subject by the analogies of English law, have thought it even older than the Mancipation. I speak of the Cessio in Jure, a collusive recovery, in a Court of law, of property sought to be conveyed. The plaintiff claimed the subject of this proceeding with the ordinary forms of a litigation; the defendant made default; and the commodity was of course adjudged to the plaintiff. I need scarcely remind the English lawyer that this expedient suggested itself to our forefathers, and produced those famous Fines and Recoveries which did so much to undo the harshest trammels of the feudal land-law. The Roman and English contrivances have very much in common and illustrate each other most instructively, but there is this difference between them, that the object of the English lawyers was to remove complications already introduced into the title, while the Roman jurisconsults sought to prevent them by substituting a mode of transfer necessarily unimpeachable for one which too often miscarried. The device is, in fact, one which suggests itself as soon as Courts of Law are in steady operation, but are nevertheless still under the empire of primitive notions. In an advanced state of legal opinion, tribunals regard collusive litigation as an abuse of their procedure; but there has always been a time when, if their forms were scrupulously complied with, they never dreamed of looking further. The influence of Courts of Law and of their procedure upon Property has been most extensive, but the subject is too large for the dimensions of this treatise, and would carry us further down the course of legal history than is consistent with its scheme. It is desirable, however, to mention, that to this influence we must attribute the importance of the distinction between Property and Possession--not, indeed, the distinction itself, which (in the language of an eminent English civilian) is the same thing as the distinction between the legal right to act upon a thing and the physical power to do so--but the extraordinary importance which the distinction has obtained in the philosophy of law. Few educated persons are so little versed in legal literature as not to have heard that the language of the Roman jurisconsults on the subject of Possession long occasioned the greatest possible perplexity, and that the genius of Savigny is supposed to have chiefly proved itself by the solution which he discovered for the enigma. Possession, in fact, when employed by the Roman lawyers, appears to have contracted a shade of meaning not easily accounted for. The word, as appears from its etymology, must have originally denoted physical contact or physical contact resumeable at pleasure; but, as actually used without any qualifying epithet, it signifies not simply physical detention, but physical detention coupled with the intention to hold the thing detained as one's own. Savigny, following Niebuhr, perceived that for this anomaly there could only be a historical origin. He pointed out that the Patrician burghers of Rome, who had become tenants of the greatest part of the public domain at nominal rents, were, in the view of the old Roman law, mere possessors, but then they were possessors intending to keep their land against all comers. They, in truth, put forward a claim almost identical with that which has recently been advanced in England by the lessees of Church lands. Admitting that in theory they were the tenants-at-will of the state, they contended that time and undisturbed enjoyment had ripened their holding into a species of ownership, and that it would be unjust to eject them for the purpose of redistributing the domain. The association of this claim with the Patrician tenancies, permanently influenced the sense of "possession." Meanwhile the only legal remedies of which the tenants could avail themselves, if ejected or threatened with disturbance, were the Possessory Interdicts, summary processes of Roman law which were either expressly devised by the Prætor for their protection, or else, according to another theory, had in older times been employed for the provisional maintenance of possessions pending the settlement of questions of legal right. It came, therefore, to be understood that everybody who possessed property _as his own_ had the power of demanding the Interdicts, and, by a system of highly artificial pleading, the Interdictal process was moulded into a shape fitted for the trial of conflicting claims to a disputed possession. Then commenced a movement which, as Mr. John Austin pointed out, exactly reproduced itself in English law. Proprietors, _domini_, began to prefer the simpler forms or speedier course of the Interdict to the lagging and intricate formalities of the Real Action, and for the purpose of availing themselves of the possessory remedy fell back upon the possession which was supposed to be involved in their proprietorship. The liberty conceded to persons who were not true Possessors, but Owners, to vindicate their rights by possessory remedies, though it may have been at first a boon, had ultimately the effect of seriously deteriorating both English and Roman jurisprudence. The Roman law owes to it those subtleties on the subject of Possession which have done so much to discredit it, while English law, after the actions which it appropriated to the recovery of real property had fallen into the most hopeless confusion, got rid at last of the whole tangled mass by a heroic remedy. No one can doubt that the virtual abolition of the English real actions which took place nearly thirty years since was a public benefit, but still persons sensitive to the harmonies of jurisprudence will lament that, instead of cleansing, improving, and simplifying the true proprietary actions, we sacrificed them all to the possessory action of ejectment, thus basing our whole system of land recovery upon a legal fiction. Legal tribunals have also powerfully assisted to shape and modify conceptions of proprietary right by means of the distinction between Law and Equity, which always makes its first appearance as a distinction between jurisdictions. Equitable property in England is simply property held under the jurisdiction of the Court of Chancery. At Rome, the Prætor's Edict introduced its novel principles in the guise of a promise that under certain circumstances a particular action or a particular plea would be granted; and, accordingly, the property _in bonis_, or Equitable Property, of Roman law was property exclusively protected by remedies which had their source in the Edict. The mechanism by which equitable rights were saved from being overridden by the claims of the legal owner was somewhat different in the two systems. With us their independence is secured by the Injunction of the Court of Chancery. Since however Law and Equity, while not as yet consolidated, were administered under the Roman system by the same Court, nothing like the Injunction was required, and the Magistrate took the simpler course of refusing to grant to the Civil Law Owner those actions and pleas by which alone he could obtain the property that belonged in equity to another. But the practical operation of both systems was nearly the same. Both, by means of a distinction in procedure, were able to preserve new forms of property in a sort of provisional existence, until the time should come when they were recognised by the whole law. In this way, the Roman Prætor gave an immediate right of property to the person who had acquired a Res Mancipi by mere delivery, without waiting for the ripening of Usucapion. Similarly he in time recognised an ownership in the Mortgagee who had at first been a mere "bailee" or depositary, and in the Emphyteuta, or tenant of land which was subject to a fixed perpetual rent. Following a parallel line of progress, the English Court of Chancery created a special proprietorship for the Mortgagor, for the Cestui que Trust, for the Married Woman who had the advantage of a particular kind of settlement, and for the Purchaser who had not yet acquired a complete legal ownership. All these are examples in which forms of proprietory right, distinctly new, were recognised and preserved. But indirectly Property has been affected in a thousand ways by equity both in England and at Rome. Into whatever corner of jurisprudence its authors pushed the powerful instrument in their command, they were sure to meet, and touch, and more or less materially modify the law of property. When in the preceding pages I have spoken of certain ancient legal distinctions and expedients as having powerfully affected the history of ownership, I must be understood to mean that the greatest part of their influence has arisen from the hints and suggestions of improvement infused by them into the mental atmosphere which was breathed by the fabricators of equitable systems. But to describe the influence of Equity on Ownership would be to write its history down to our own days. I have alluded to it principally because several esteemed contemporary writers have thought that in the Roman severance of Equitable from Legal property we have the clue to that difference in the conception of Ownership, which apparently distinguishes the law of the middle ages from the law of the Roman Empire. The leading characteristic of the feudal conception is its recognition of a double proprietorship, the superior ownership of the lord of the fief co-existing with the inferior property or estate of the tenant. Now, this duplication of proprietary right looks, it is urged, extremely like a generalised form of the Roman distribution of rights over property into _Quiritarian_ or legal, and (to use a word of late origin) _Bonitarian_ or equitable. Gaius himself observes upon the splitting of _dominion_ into two parts as a singularity of Roman law, and expressly contrasts it with the entire or allodial ownership to which other nations were accustomed. Justinian, it is true, re-consolidated dominion into one, but then it was the partially reformed system of the Western Empire, and not Justinian's jurisprudence, with which the barbarians were in contact during so many centuries. While they remained poised on the edge of the Empire, it may well be that they learned this distinction, which afterwards bore remarkable fruit. In favour of this theory, it must at all events be admitted that the element of Roman law in the various bodies of barbarian custom has been very imperfectly examined. The erroneous or insufficient theories which have served to explain Feudalism resemble each other in their tendency to draw off attention from this particular ingredient in its texture. The older investigators, who have been mostly followed in this country, attached an exclusive importance to the circumstances of the turbulent period during which the Feudal system grew to maturity; and in later times a new source of error has been added to those already existing, in that pride of nationality which has led German writers to exaggerate the completeness of the social fabric which their forefathers had built up before their appearance in the Roman world. One or two English inquirers who looked in the right quarter for the foundations of the feudal system, failed nevertheless to conduct their investigations to any satisfactory result, either from searching too exclusively for analogies in the compilations of Justinian, or from confining their attention to the compendia of Roman law which are found appended to some of the extant barbarian codes. But, if Roman jurisprudence had any influence on the barbarous societies, it had probably produced the greatest part of its effects before the legislation of Justinian, and before the preparation of these compendia. It was not the reformed and purified jurisprudence of Justinian, but the undigested system which prevailed in the Western Empire, and which the Eastern _Corpus Juris_ never succeeded in displacing, that I conceive to have clothed with flesh and muscle the scanty skeleton of barbarous usage. The change must be supposed to have taken place before the Germanic tribes had distinctly appropriated, as conquerors, any portion of the Roman dominions, and therefore long before Germanic monarchs had ordered breviaries of Roman law to be drawn up for the use of their Roman subjects. The necessity for some such hypothesis will be felt by everybody who can appreciate the difference between archaic and developed law. Rude as are the _Leges Barbarorum_ which remain to us, they are not rude enough to satisfy the theory of their purely barbarous origin; nor have we any reason for believing that we have received, in written records, more than a fraction of the fixed rules which were practised among themselves by the members of the conquering tribes. If we can once persuade ourselves that a considerable element of debased Roman law already existed in the barbarian systems, we shall have done something to remove a grave difficulty. The German law of the conquerors and the Roman law of their subjects would not have combined if they had not possessed more affinity for each other than refined jurisprudence has usually for the customs of savages. It is extremely likely that the codes of the barbarians, archaic as they seem, are only a compound of true primitive usage with half-understood Roman rules, and that it was the foreign ingredient which enabled them to coalesce with a Roman jurisprudence that had already receded somewhat from the comparative finish which it had acquired under the Western Emperors. But, though all this must be allowed, there are several considerations which render it unlikely that the feudal form of ownership was directly suggested by the Roman duplication of domainial rights. The distinction between legal and equitable property strikes one as a subtlety little likely to be appreciated by barbarians; and, moreover, it can scarcely be understood unless Courts of Law are contemplated in regular operation. But the strongest reason against this theory is the existence in Roman Law of a form of property--a creation of Equity, it is true--which supplies a much simpler explanation of the transition from one set of ideas to the other. This is the Emphyteusis, upon which the Fief of the middle ages has often been fathered, though without much knowledge of the exact share which it had in bringing feudal ownership into the world. The truth is that the Emphyteusis, not probably as yet known by its Greek designation, marks one stage in a current of ideas which led ultimately to feudalism. The first mention in Roman history of estates larger than could be farmed by a Paterfamilias, with his household of sons and slaves, occurs when we come to the holdings of the Roman patricians. These great proprietors appear to have had no idea of any system of farming by free tenants. Their _latifundia_ seem to have been universally cultivated by slave-gangs, under bailiffs who were themselves slaves or freedmen; and the only organisation attempted appears to have consisted in dividing the inferior slaves into small bodies, and making them the _peculium_ of the better and trustier sort, who thus acquired a kind of interest in the efficiency of their labour. This system was, however, especially disadvantageous to one class of estated proprietors, the Municipalities. Functionaries in Italy were changed with the rapidity which often surprises us in the administration of Rome herself; so that the superintendence of a large landed domain by an Italian corporation must have been excessively imperfect. Accordingly, we are told that with the municipalities began the practice of letting out _agri vectigules_, that is, of leasing land for a perpetuity to a free tenant, at a fixed rent, and under certain conditions. The plan was afterwards extensively imitated by individual proprietors, and the tenant, whose relation to the owner had originally been determined by his contract, was subsequently recognised by the Prætor as having himself a qualified proprietorship, which in time became known as an Emphyteusis. From this point the history of tenure parts into two branches. In the course of that long period during which our records of the Roman Empire are most incomplete, the slave-gangs of the great Roman families became transformed into the _coloni_, whose origin and situation constitute one of the obscurest questions in all history. We may suspect that they were formed partly by the elevation of the slaves, and partly by the degradation of the free farmers; and that they prove the richer classes of the Roman Empire to have become aware of the increased value which landed property obtains when the cultivator had an interest in the produce of the land. We know that their servitude was predial; that it wanted many of the characteristics of absolute slavery, and that they acquitted their service to the landlord in rendering to him a fixed portion of the annual crop. We know further that they survived all the mutations of society in the ancient and modern worlds. Though included in the lower courses of the feudal structure, they continued in many countries to render to the landlord precisely the same dues which they had paid to the Roman _dominus_, and from a particular class among them, the _coloni medietarii_ who reserved half the produce for the owner, are descended the _metayer_ tenantry, who still conduct the cultivation of the soil in almost all the South of Europe. On the other hand, the Emphyteusis, if we may so interpret the allusions to it in the _Corpus Juris_, became a favourite and beneficial modification of property; and it may be conjectured that wherever free farmers existed, it was this tenure which regulated their interest in the land. The Prætor, as has been said, treated the Emphyteuta as a true proprietor. When ejected, he was allowed to reinstate himself by a Real Action, the distinctive badge of proprietory right, and he was protected from disturbance by the author of his lease so long as the _canon_, or quit-rent, was punctually paid. But at the same time it must not be supposed that the ownership of the author of the lease was either extinct or dormant. It was kept alive by a power of re-entry on nonpayment of the rent, a right of pre-emption in case of sale, and a certain control over the mode of cultivation. We have, therefore, in the Emphyteusis a striking example of the double ownership which characterised feudal property, and one, moreover, which is much simpler and much more easily imitated than the juxtaposition of legal and equitable rights. The history of the Roman tenure does not end, however, at this point. We have clear evidence that between the great fortresses which, disposed along the line of the Rhine and Danube, long secured the frontier of the Empire against its barbarian neighbours, there extended a succession of strips of land, the _agri limitrophi_, which were occupied by veteran soldiers of the Roman army on the terms of an Emphyteusis. There was a double ownership. The Roman State was landlord of the soil, but the soldiers cultivated it without disturbance so long as they held themselves ready to be called out for military service whenever the state of the border should require it. In fact, a sort of garrison-duty, under a system closely resembling that of the military colonies on the Austro-Turkish border, had taken the place of the quit-rent which was the service of the ordinary Emphyteuta. It seems impossible to doubt that this was the precedent copied by the barbarian monarchs who founded feudalism. It had been within their view for some hundred years, and many of the veterans who guarded the border were, it is to be remembered, themselves of barbarian extraction, who probably spoke the Germanic tongues. Not only does the proximity of so easily followed a model explain whence the Frankish and Lombard Sovereigns got the idea of securing the military service of their followers by granting away portions of their public domain; but it perhaps explains the tendency which immediately showed itself in the Benefices to become hereditary, for an Emphyteusis, though capable of being moulded to the terms of the original contract, nevertheless descended as a general rule to the heirs of the grantee. It is true that the holder of a benefice, and more recently the lord of one of those fiefs into which the benefices were transformed, appears to have owed certain services which were not likely to have been rendered by the military colonist, and were certainly not rendered by the Emphyteuta. The duty of respect and gratitude to the feudal superior, the obligation to assist in endowing his daughter and equipping his son, the liability to his guardianship in minority, and many other similar incidents of tenure, must have been literally borrowed from the relations of Patron and Freedman under Roman law, that is, of quondam-master and quondam-slave. But then it is known that the earliest beneficiaries were the personal companions of the sovereign, and it is indisputable that this position, brilliant as it seems, was at first attended by some shade of servile debasement. The person who ministered to the Sovereign in his Court had given up something of that absolute personal freedom which was the proudest privilege of the allodial proprietor. CHAPTER IX THE EARLY HISTORY OF CONTRACT There are few general propositions concerning the age to which we belong which seem at first sight likely to be received with readier concurrence than the assertion that the society of our day is mainly distinguished from that of preceding generations by the largeness of the sphere which is occupied in it by Contract. Some of the phenomena on which this proposition rests are among those most frequently singled out for notice, for comment, and for eulogy. Not many of us are so unobservant as not to perceive that in innumerable cases where old law fixed a man's social position irreversibly at his birth, modern law allows him to create it for himself by convention; and indeed several of the few exceptions which remain to this rule are constantly denounced with passionate indignation. The point, for instance, which is really debated in the vigorous controversy still carried on upon the subject of negro servitude, is whether the status of the slave does not belong to bygone institutions, and whether the only relation between employer and labourer which commends itself to modern morality be not a relation determined exclusively by contract. The recognition of this difference between past ages and the present enters into the very essence of the most famous contemporary speculations. It is certain that the science of Political Economy, the only department of moral inquiry which has made any considerable progress in our day, would fail to correspond with the facts of life if it were not true that Imperative Law had abandoned the largest part of the field which it once occupied, and had left men to settle rules of conduct for themselves with a liberty never allowed to them till recently. The bias indeed of most persons trained in political economy is to consider the general truth on which their science reposes as entitled to become universal, and, when they apply it as an art, their efforts are ordinarily directed to enlarging the province of Contract and to curtailing that of Imperative Law, except so far as law is necessary to enforce the performance of Contracts. The impulse given by thinkers who are under the influence of these ideas is beginning to be very strongly felt in the Western world. Legislation has nearly confessed its inability to keep pace with the activity of man in discovery, in invention, and in the manipulation of accumulated wealth; and the law even of the least advanced communities tends more and more to become a mere surface-stratum having under it an ever-changing assemblage of contractual rules with which it rarely interferes except to compel compliance with a few fundamental principles or unless it be called in to punish the violation of good faith. Social inquiries, so far as they depend on the consideration of legal phenomena, are in so backward a condition that we need not be surprised at not finding these truths recognised in the commonplaces which pass current concerning the progress of society. These commonplaces answer much more to our prejudices than to our convictions. The strong disinclination of most men to regard morality as advancing seems to be especially powerful when the virtues on which Contract depends are in question, and many of us have almost instinctive reluctance to admitting that good faith and trust in our fellows are more widely diffused than of old, or that there is anything in contemporary manners which parallels the loyalty of the antique world. From time to time, these prepossessions are greatly strengthened by the spectacle of frauds, unheard of before the period at which they were observed, and astonishing from their complication as well as shocking from criminality. But the very character of these frauds shows clearly that, before they became possible, the moral obligations of which they are the breach must have been more than proportionately developed. It is the confidence reposed and deserved by the many which affords facilities for the bad faith of the few, so that, if colossal examples of dishonesty occur, there is no surer conclusion than that scrupulous honesty is displayed in the average of the transactions which, in the particular case, have supplied the delinquent with his opportunity. If we insist on reading the history of morality as reflected in jurisprudence, by turning our eyes not on the law of Contract but on the law of Crime, we must be careful that we read it aright. The only form of dishonesty treated of in the most ancient Roman law is Theft. At the moment at which I write, the newest chapter in the English criminal law is one which attempts to prescribe punishment for the frauds of Trustees. The proper inference from this contrast is not that the primitive Romans practised a higher morality than ourselves. We should rather say that, in the interval between their days and ours, morality has advanced from a very rude to a highly refined conception--from viewing the rights of property as exclusively sacred, to looking upon the rights growing out of the mere unilateral reposal of confidence as entitled to the protection of the penal law. The definite theories of jurists are scarcely nearer the truth in this point than the opinions of the multitude. To begin with the views of the Roman lawyers, we find them inconsistent with the true history of moral and legal progress. One class of contracts, in which the plighted faith of the contracting parties was the only material ingredient, they specifically denominated Contracts _juris gentium_, and though these contracts were undoubtedly the latest born into the Roman system, the expression employed implies, if a definite meaning be extracted from it, that they were more ancient than certain other forms of engagement treated of in Roman law, in which the neglect of a mere technical formality was as fatal to the obligation as misunderstanding or deceit. But then the antiquity to which they were referred was vague, shadowy, and only capable of being understood through the Present; nor was it until the language of the Roman lawyers became the language of an age which had lost the key to their mode of thought that a "Contract of the Law of Nations" came to be distinctly looked upon as a Contract known to man in a State of Nature. Rousseau adopted both the juridical and the popular error. In the Dissertation on the effects of Art and Science upon Morals, the first of his works which attracted attention and the one in which he states most unreservedly the opinions which made him the founder of a sect, the veracity and good faith attributed to the ancient Persians are repeatedly pointed out as traits of primitive innocence which have been gradually obliterated by civilisation; and at a later period he found a basis for all his speculations in the doctrine of an original Social Contract. The Social Contract or Compact is the most systematic form which has ever been assumed by the error we are discussing. It is a theory which, though nursed into importance by political passions, derived all its sap from the speculations of lawyers. True it certainly is that the famous Englishmen, for whom it had first had attraction, valued it chiefly for its political serviceableness, but, as I shall presently attempt to explain, they would never have arrived at it, if politicians had not long conducted their controversies in legal phraseology. Nor were the English authors of the theory blind to that speculative amplitude which recommended it so strongly to the Frenchmen who inherited it from them. Their writings show they perceived that it could be made to account for all social, quite as well as for all political phenomena. They had observed the fact, already striking in their day, that of the positive rules obeyed by men, the greater part were created by Contract, the lesser by Imperative Law. But they were ignorant or careless of the historical relation of these two constituents of jurisprudence. It was for the purpose, therefore, of gratifying their speculative tastes by attributing all jurisprudence to a uniform source, as much as with the view of eluding the doctrines which claimed a divine parentage for Imperative Law, that they devised the theory that all Law had its origin in Contract. In another stage of thought, they would have been satisfied to leave their theory in the condition of an ingenious hypothesis or a convenient verbal formula. But that age was under the dominion of legal superstitions. The State of Nature had been talked about till it had ceased to be regarded as paradoxical, and hence it seemed easy to give a fallacious reality and definiteness to the contractual origin of Law by insisting on the Social Compact as a historical fact. Our own generation has got rid of these erroneous juridical theories, partly by outgrowing the intellectual state to which they belong, and partly by almost ceasing to theorise on such subjects altogether. The favourite occupation of active minds at the present moment, and the one which answers to the speculations of our forefathers on the origin of the social state, is the analysis of society as it exists and moves before our eyes; but, through omitting to call in the assistance of history, this analysis too often degenerates into an idle exercise of curiosity, and is especially apt to incapacitate the inquirer for comprehending states of society which differ considerably from that to which he is accustomed. The mistake of judging the men of other periods by the morality of our own day has its parallel in the mistake of supposing that every wheel and bolt in the modern social machine had its counterpart in more rudimentary societies. Such impressions ramify very widely, and masque themselves very subtly, in historical works written in the modern fashion; but I find the trace of their presence in the domain of jurisprudence in the praise which is frequently bestowed on the little apologue of Montesquieu concerning the Troglodytes, inserted in the _Lettres Persanes_. The Troglodytes were a people who systematically violated their Contracts, and so perished utterly. If the story bears the moral which its author intended, and is employed to expose an anti-social heresy by which this century and the last have been threatened, it is most unexceptionable; but if the inference be obtained from it that society could not possibly hold together without attaching a sacredness to promises and agreements which should be on something like a par with the respect that is paid to them by a mature civilisation, it involves an error so grave as to be fatal to all sound understanding of legal history. The fact is that the Troglodytes have flourished and founded powerful states with very small attention to the obligations of Contract. The point which before all others has to be apprehended in the constitution of primitive societies is that the individual creates for himself few or no rights, and few or no duties. The rules which he obeys are derived first from the station into which he is born, and next from the imperative commands addressed to him by the chief of the household of which he forms part. Such a system leaves the very smallest room for Contract. The members of the same family (for so we may interpret the evidence) are wholly incapable of contracting with each other, and the family is entitled to disregard the engagements by which any one of its subordinate members has attempted to bind it. Family, it is true, may contract with family, chieftain with chieftain, but the transaction is one of the same nature, and encumbered by as many formalities, as the alienation of property, and the disregard of one iota of the performance is fatal to the obligation. The positive duty resulting from one man's reliance on the word of another is among the slowest conquests of advancing civilisation. Neither Ancient Law nor any other source of evidence discloses to us society entirely destitute of the conception of Contract. But the conception, when it first shows itself, is obviously rudimentary. No trustworthy primitive record can be read without perceiving that the habit of mind which induces us to make good a promise is as yet imperfectly developed, and that acts of flagrant perfidy are often mentioned without blame and sometimes described with approbation. In the Homeric literature, for instance, the deceitful cunning of Ulysses appears as a virtue of the same rank with the prudence of Nestor, the constancy of Hector, and the gallantry of Achilles. Ancient law is still more suggestive of the distance which separates the crude form of Contract from its maturity. At first, nothing is seen like the interposition of law to compel the performance of a promise. That which the law arms with its sanctions is not a promise, but a promise accompanied with a solemn ceremonial. Not only are formalities of equal importance with the promise itself, but they are, if anything, of greater importance; for that delicate analysis which mature jurisprudence applies to the conditions of mind under which a particular verbal assent is given appears, in ancient law, to be transferred to the words and gestures of the accompanying performance. No pledge is enforced if a single form be omitted or misplaced, but, on the other hand, if the forms can be shown to have been accurately proceeded with, it is of no avail to plead that the promise was made under duress or deception. The transmutation of this ancient view into the familiar notion of a Contract is plainly seen in the history of jurisprudence. First one or two steps in the ceremonial are dispensed with; then the others are simplified or permitted to be neglected on certain conditions; lastly, a few specific contracts are separated from the rest and allowed to be entered into without form, the selected contracts being those on which the activity and energy of social intercourse depends. Slowly, but most distinctly, the mental engagement isolates itself amid the technicalities, and gradually becomes the sole ingredient on which the interest of the jurisconsult is concentrated. Such a mental engagement, signified through external acts, the Romans called a Pact or Convention; and when the Convention has once been conceived as the nucleus of a Contract, it soon becomes the tendency of advancing jurisprudence to break away the external shell of form and ceremony. Forms are thenceforward only retained so far as they are guarantees of authenticity, and securities for caution and deliberation. The idea of a Contract is fully developed, or, to employ the Roman phrase, Contracts are absorbed in Pacts. The history of this course of change in Roman law is exceedingly instructive. At the earliest dawn of the jurisprudence, the term in use for a Contract was one which is very familiar to the students of historical Latinity. It was _nexum_, and the parties to the contract were said to be _nexi_, expressions which must be carefully attended to on account of the singular durableness of the metaphor on which they are founded. The notion that persons under a contractual engagement are connected together by a strong _bond_ or _chain_, continued till the last to influence the Roman jurisprudence of Contract; and flowing thence it has mixed itself with modern ideas. What then was involved in this nexum or bond? A definition which has descended to us from one of the Latin antiquarians describes _nexum_ as _omne quod geritur per æs et libram_, "every transaction with the copper and the balance," and these words have occasioned a good deal of perplexity. The copper and the balance are the well-known accompaniments of the Mancipation, the ancient solemnity described in a former chapter, by which the right of ownership in the highest form of Roman Property was transferred from one person to another. Mancipation was a _conveyance_, and hence has arisen the difficulty, for the definition thus cited appears to confound Contracts and Conveyances, which in the philosophy of jurisprudence are not simply kept apart, but are actually opposed to each other. The _jus in re_, right _in rem_, right "availing against all the world," or Proprietary Right, is sharply distinguished by the analyst of mature jurisprudence from the _jus ad rem_, right _in personam_, right "availing a single individual or group," or obligation. Now Conveyances transfer Proprietary Rights, Contracts create Obligations--how then can the two be included under the same name or same general conception? This, like many similar embarrassments, has been occasioned by the error of ascribing to the mental condition of an unformed society a faculty which pre-eminently belongs to an advanced stage of intellectual development, the faculty of distinguishing in speculation ideas which are blended in practice. We have indications not to be mistaken of a state of social affairs in which Conveyances and Contracts were practically confounded; nor did the discrepance of the conceptions become perceptible till men had begun to adopt a distinct practice in contracting and conveying. It may here be observed that we know enough of ancient Roman law to give some idea of the mode of transformation followed by legal conceptions and by legal phraseology in the infancy of Jurisprudence. The change which they undergo appears to be a change from general to special; or, as we might otherwise express it, the ancient conceptions and the ancient terms are subjected to a process of gradual specialisation. An ancient legal conception corresponds not to one but to several modern conceptions. An ancient technical expression serves to indicate a variety of things which in modern law have separate names allotted to them. If however we take up the history of Jurisprudence at the next stage, we find that the subordinate conceptions have gradually disengaged themselves and that the old general names are giving way to special appellations. The old general conception is not obliterated, but it has ceased to cover more than one or a few of the notions which it first included. So too the old technical name remains, but it discharges only one of the functions which it once performed. We may exemplify this phenomenon in various ways. Patriarchal Power of all sorts appears, for instance, to have been once conceived as identical in character, and it was doubtless distinguished by one name. The Power exercised by the ancestor was the same whether it was exercised over the family or the material property--over flocks, herds, slaves, children, or wife. We cannot be absolutely certain of its old Roman name, but there is very strong reason for believing, from the number of expressions indicating shades of the notion of _power_ into which the word _manus_ enters, that the ancient general term was _manus_. But, when Roman law has advanced a little, both the name and the idea have become specialised. Power is discriminated, both in word and in conception, according to the object over which it is exerted. Exercised over material commodities or slaves, it has become _dominium_--over children, it is _Potestas_--over free persons whose services have been made away to another by their own ancestor, it is _mancipium_--over a wife, it is still _manus_. The old word, it will be perceived, has not altogether fallen into desuetude, but is confined to one very special exercise of the authority it had formerly denoted. This example will enable us to comprehend the nature of the historical alliance between Contracts and Conveyances. There seems to have been one solemn ceremonial at first for all solemn transactions, and its name at Rome appears to have been _nexum_. Precisely the same forms which were in use when a conveyance of property was effected seem to have been employed in the making of a contract. But we have not very far to move onwards before we come to a period at which the notion of a Contract has disengaged itself from the notion of a Conveyance. A double change has thus taken place. The transaction "with the copper and the balance," when intended to have for its office the transfer of property, is known by the new and special name of Mancipation. The ancient Nexum still designates the same ceremony, but only when it is employed for the special purpose of solemnising a contract. When two or three legal conceptions are spoken of as anciently blended in one, it is not intended to imply that some one of the included notions may not be older than the others, or, when those others have been formed, may not greatly predominate over and take precedence over them. The reason why one legal conception continues so long to cover several conceptions, and one technical phrase to do instead of several, is doubtless that practical changes are accomplished in the law of primitive societies long before men see occasion to notice or name them. Though I have said that Patriarchal Power was not at first distinguished according to the objects over which it was exercised, I feel sure that Power over Children was the root of the old conception of Power; and I cannot doubt that the earliest use of the Nexum, and the one primarily regarded by those who resorted to it, was to give proper solemnity to the alienation of property. It is likely that a very slight perversion of the Nexum from its original functions first gave rise to its employment in Contracts, and that the very slightness of the change long prevented its being appreciated or noticed. The old name remained because men had not become conscious that they wanted a new one; the old notion clung to the mind because nobody had seen reason to be at the pains of examining it. We have had the process clearly exemplified in the history of Testaments. A Will was at first a simple conveyance of property. It was only the enormous practical difference that gradually showed itself between this particular conveyance and all others which caused it to be regarded separately, and even as it was, centuries elapsed before the ameliorators of law cleared away the useless encumbrance of the nominal mancipation, and consented to care for nothing in the Will but the expressed intentions of the Testator. It is unfortunate that we cannot track the early history of Contracts with the same absolute confidence as the early history of Wills, but we are not quite without hints that contracts first showed themselves through the _nexum_ being put to a new use and afterwards obtained recognition as distinct transactions through the important practical consequences of the experiment. There is some, but not very violent, conjecture in the following delineation of the process. Let us conceive a sale for ready money as the normal type of the Nexum. The seller brought the property of which he intended to dispose--a slave, for example--the purchaser attended with the rough ingots of copper which served for money--and an indispensable assistant, the _libripens_, presented himself with a pair of scales. The slave with certain fixed formalities was handed over to the vendee--the copper was weighed by the _libripens_ and passed to the vendor. So long as the business lasted it was a _nexum_, and the parties were _nexi_; but the moment it was completed, the _nexum_ ended, and the vendor and purchaser ceased to bear the name derived from their momentary relation. But now, let us move a step onward in commercial history. Suppose the slave transferred, but the money not paid. In _that_ case, the _nexum_ is finished, so far as the seller is concerned, and when he has once handed over his property, he is no longer _nexus_; but, in regard to the purchaser, the _nexum_ continues. The transaction, as to his part of it, is incomplete, and he is still considered to be _nexus_. It follows, therefore, that the same term described the Conveyance by which the right of property was transmitted, and the personal obligation of the debtor for the unpaid purchase-money. We may still go forward, and picture to ourselves a proceeding wholly formal, in which _nothing_ is handed over and _nothing_ paid; we are brought at once to a transaction indicative of much higher commercial activity, an _executory Contract of Sale_. If it be true that, both in the popular and in the professional view, a _Contract_ was long regarded as an _incomplete Conveyance_, the truth has importance for many reasons. The speculations of the last century concerning mankind in a state of nature, are not unfairly summed up in the doctrine that "in the primitive society property was nothing, and obligation everything;" and it will now be seen that, if the proposition were reversed, it would be nearer the reality. On the other hand, considered historically, the primitive association of Conveyances and Contracts explains something which often strikes the scholar and jurist as singularly enigmatical, I mean the extraordinary and uniform severity of very ancient systems of law to _debtors_, and the extravagant powers which they lodge with _creditors_. When once we understand that the _nexum_ was artificially prolonged to give time to the debtor, we can better comprehend his position in the eye of the public and of the law. His indebtedness was doubtless regarded as an anomaly, and suspense of payment in general as an artifice and a distortion of strict rule. The person who had duly consummated his part in the transaction must, on the contrary, have stood in peculiar favour; and nothing would seem more natural than to arm him with stringent facilities for enforcing the completion of a proceeding which, of strict right, ought never to have been extended or deferred. Nexum, therefore, which originally signified a Conveyance of property, came insensibly to denote a Contract also, and ultimately so constant became the association between this word and the notion of a Contract, that a special term, Mancipium or Mancipatio, had to be used for the purpose of designating the true nexum or transaction in which the property was really transferred. Contracts are therefore now severed from Conveyances, and the first stage in their history is accomplished, but still they are far enough from that epoch of their development when the promise of the contractor has a higher sacredness than the formalities with which it is coupled. In attempting to indicate the character of the changes passed through in this interval, it is necessary to trespass a little on a subject which lies properly beyond the range of these pages, the analysis of Agreement effected by the Roman jurisconsults. Of this analysis, the most beautiful monument of their sagacity, I need not say more than that it is based on the theoretical separation of the Obligation from the Convention or Pact. Bentham and Mr. Austin have laid down that the "two main essentials of a contract are these: first, a signification by the promising party of his _intention_ to do the acts or to observe the forbearances which he promises to do or to observe. Secondly, a signification by the promisee that he _expects_ the promising party will fulfil the proffered promise." This is virtually identical with the doctrine of the Roman lawyers, but then, in their view, the result of these "significations" was not a Contract, but a Convention or Pact. A Pact was the utmost product of the engagements of individuals agreeing among themselves, and it distinctly fell short of a Contract. Whether it ultimately became a Contract depended on the question whether the law annexed an Obligation to it. A Contract was a Pact (or Convention) _plus_ an Obligation. So long as the Pact remained unclothed with the Obligation, it was called _nude_ or _naked_. What was an Obligation? It is defined by the Roman lawyers as "Juris vinculum, quo necessitate adstringimur alicujus solvendæ rei." This definition connects the Obligation with the Nexum through the common metaphor on which they are founded, and shows us with much clearness the pedigree of a peculiar conception. The Obligation is the "bond" or "chain" with which the law joins together persons or groups of persons, in consequence of certain voluntary acts. The acts which have the effect of attracting an Obligation are chiefly those classed under the heads of Contract and Delict, of Agreement and Wrong; but a variety of other acts have a similar consequence which are not capable of being comprised in an exact classification. It is to be remarked, however, that the act does not draw to itself the Obligation in consequence of any moral necessity; it is the law which annexes it in the plenitude of its power, a point the more necessary to be noted, because a different doctrine has sometimes been propounded by modern interpreters of the Civil Law who had moral or metaphysical theories of their own to support. The image of a _vinculum juris_ colours and pervades every part of the Roman law of Contract and Delict. The law bound the parties together, and the _chain_ could only be undone by the process called _solutio_, an expression still figurative, to which our word "payment" is only occasionally and incidentally equivalent. The consistency with which the figurative image was allowed to present itself, explains an otherwise puzzling peculiarity of Roman legal phraseology, the fact that "Obligation" signified rights as well as duties, the right, for example, to have a debt paid as well as the duty of paying it. The Romans kept in fact the entire picture of the "legal chain" before their eyes, and regarded one end of it no more and no less than the other. In the developed Roman law, the Convention, as soon as it was completed, was, in almost all cases, at once crowned with the Obligation, and so became a Contract; and this was the result to which contract-law was surely tending. But for the purpose of this inquiry, we must attend particularly to the intermediate stage--that in which something more than a perfect agreement was required to attract the Obligation. This epoch is synchronous with the period at which the famous Roman classification of Contracts into four sorts--the Verbal, the Literal, the Real, and the Consensual--had come into use, and during which these four orders of Contracts constituted the only descriptions of engagement which the law would enforce. The meaning of the fourfold distribution is readily understood as soon as we apprehend the theory which severed the Obligation from the Convention. Each class of contracts was in fact named from certain formalities which were required over and above the mere agreement of the contracting parties. In the Verbal Contract, as soon as the Convention was effected, a form of words had to be gone through before the vinculum juris was attached to it. In the Literal Contract, an entry in a ledger or table-book had the effect of clothing the Convention with the Obligation, and the same result followed, in the case of the Real Contract, from the delivery of the Res or Thing which was the subject of the preliminary engagement. The contracting parties came, in short, to an understanding in each case; but, if they went no further, they were not _obliged_ to one another, and could not compel performance or ask redress for a breach of faith. But let them comply with certain prescribed formalities, and the Contract was immediately complete, taking its name from the particular form which it had suited them to adopt. The exceptions to this practice will be noticed presently. I have enumerated the four Contracts in their historical order, which order, however, the Roman Institutional writers did not invariably follow. There can be no doubt that the Verbal Contract was the most ancient of the four, and that it is the eldest known descendant of the primitive Nexum. Several species of Verbal Contract were anciently in use, but the most important of all, and the only one treated of by our authorities, was effected by means of a _stipulation_, that is, a Question and Answer; a question addressed by the person who exacted the promise, and an answer given by the person who made it. This question and answer constituted the additional ingredient which, as I have just explained, was demanded by the primitive notion over and above the mere agreement of the persons interested. They formed the agency by which the Obligation was annexed. The old Nexum has now bequeathed to maturer jurisprudence first of all the conception of a chain uniting the contracting parties, and this has become the Obligation. It has further transmitted the notion of a ceremonial accompanying and consecrating the engagement, and this ceremonial has been transmuted into the Stipulation. The conversion of the solemn conveyance, which was the prominent feature of the original Nexum, into a mere question and answer, would be more of a mystery than it is if we had not the analogous history of Roman Testaments to enlighten us. Looking to that history, we can understand how the formal Conveyance was first separated from the part of the proceeding which had immediate reference to the business in hand, and how afterwards it was omitted altogether. As then the question and answer of the Stipulation were unquestionably the Nexum in a simplified shape, we are prepared to find that they long partook of the nature of a technical form. It would be a mistake to consider them as exclusively recommending themselves to the older Roman lawyers through their usefulness in furnishing persons meditating an agreement with an opportunity for consideration and reflection. It is not to be disputed that they had a value of this kind, which was gradually recognised; but there is proof that their function in respect to Contracts was at first formal and ceremonial in the statement of our authorities, that not every question and answer was of old sufficient to constitute a Stipulation, but only a question and answer couched in technical phraseology specially appropriated to the particular occasion. But although it is essential for the proper appreciation of the history of contract-law that the Stipulation should be understood to have been looked upon as a solemn form before it was recognised as a useful security, it would be wrong on the other hand to shut our eyes to its real usefulness. The Verbal Contract, though it had lost much of its ancient importance, survived to the latest period of Roman jurisprudence; and we may take it for granted that no institution of Roman law had so extended a longevity unless it served some practical advantage. I observe in an English writer some expressions of surprise that the Romans even of the earliest times were content with so meagre a protection against haste and irreflection. But on examining the Stipulation closely, and remembering that we have to do with a state of society in which written evidence was not easily procurable, I think we must admit that this Question and Answer, had it been expressly devised to answer the purpose which it served, would have been justly designated a highly ingenious expedient. It was the _promisee_ who, in the character of stipulator, put all the terms of the contract into the form of a question, and the answer was given by the _promisor_. "Do you promise that you will deliver me such and such a slave, at such and such a place, on such and such a day?" "I do promise." Now, if we reflect for a moment, we shall see that this obligation to put the promise interrogatively inverts the natural position of the parties, and, by effectually breaking the tenor of the conversation, prevents the attention from gliding over a dangerous pledge. With us, a verbal promise is, generally speaking, to be gathered exclusively from the words of the promisor. In old Roman law, another step was absolutely required; it was necessary for the promisee, after the agreement had been made, to sum up all its terms in a solemn interrogation; and it was of this interrogation, of course, and of the assent to it, that proof had to be given at the trial--_not_ of the promise, which was not in itself binding. How great a difference this seemingly insignificant peculiarity may make in the phraseology of contract-law is speedily realised by the beginner in Roman jurisprudence, one of whose first stumbling-blocks is almost universally created by it. When we in English have occasion, in mentioning a contract, to connect it for convenience' sake with one of the parties--for example, if we wished to speak generally of a contractor--it is always the _promisor_ at whom our words are pointing. But the general language of Roman law takes a different turn; it always regards the contract, if we may so speak, from the point of view of the _promisee_; in speaking of a party to a contract, it is always the Stipulator, the person who asks the question, who is primarily alluded to. But the serviceableness of the stipulation is most vividly illustrated by referring to the actual examples in the pages of the Latin comic dramatists. If the entire scenes are read down in which these passages occur (ex. gra. Plautus, _Pseudolus_, Act I. sc. i; Act IV. sc. 6; _Trinummus_, Act V. sc. 2), it will be perceived how effectually the attention of the person meditating the promise must have been arrested by the question, and how ample was the opportunity for withdrawal from an improvident undertaking. In the Literal or Written Contract, the formal act, by which an Obligation was superinduced on the Convention, was an entry of the sum due, where it could be specifically ascertained, on the debit side of a ledger. The explanation of this Contract turns on a point of Roman domestic manners, the systematic character and exceeding regularity of bookkeeping in ancient times. There are several minor difficulties of old Roman law, as, for example, the nature of the Slave's Peculium, which are only cleared up when we recollect that a Roman household consisted of a number of persons strictly accountable to its head, and that every single item of domestic receipt and expenditure, after being entered in waste books, was transferred at stated periods to a general household ledger. There are some obscurities, however, in the descriptions we have received of the Literal Contract, the fact being that the habit of keeping books ceased to be universal in later times, and the expression "Literal Contract" came to signify a form of engagement entirely different from that originally understood. We are not, therefore, in a position to say, with respect to the primitive Literal Contract, whether the obligation was created by a simple entry on the part of the creditor, or whether the consent of the debtor or a corresponding entry in his own books was necessary to give it legal effect. The essential point is however established that, in the case of this Contract, all formalities were dispensed with on a condition being complied with. This is another step downwards in the history of contract-law. The Contract which stands next in historical succession, the Real Contract, shows a great advance in ethical conceptions. Whenever any agreement had for its object the delivery of a specific thing--and this is the case with the large majority of simple engagements--the Obligation was drawn down as soon as the delivery had actually taken place. Such a result must have involved a serious innovation on the oldest ideas of Contract; for doubtless, in the primitive times, when a contracting party had neglected to clothe his agreement in a stipulation, nothing done in pursuance of the agreement would be recognised by the law. A person who had paid over money on loan would be unable to sue for its repayment unless he had formally _stipulated_ for it. But, in the Real Contract, performance on one side is allowed to impose a legal duty on the other--evidently on ethical grounds. For the first time then moral considerations appear as an ingredient in Contract-law, and the Real Contract differs from its two predecessors in being founded on these, rather than on respect for technical forms or on deference to Roman domestic habits. We now reach the fourth class, or Consensual Contracts, the most interesting and important of all. Four specified Contracts were distinguished by this name: Mandatum, _i.e._ Commission or Agency; Societas or Partnership; Emtio Venditio or Sale; and Locatio Conductio or Letting and Hiring. A few pages ago, after stating that a Contract consisted of a Pact or Convention to which an Obligation had been superadded, I spoke of certain acts or formalities by which the law permitted the Obligation to be attracted to the Pact. I used this language on account of the advantage of a general expression, but it is not strictly correct unless it be understood to include the negative as well as the positive. For, in truth, the peculiarity of these Consensual Contracts is that _no_ formalities, are required to create them out of the Pact. Much that is indefensible, and much more that is obscure, has been written about the Consensual Contracts, and it has even been asserted that in them the _consent_ of the Parties is more emphatically given than in any other species of agreement. But the term Consensual merely indicates that the Obligation is here annexed at once to the _Consensus_. The Consensus, or mutual assent of the parties, is the final and crowning ingredient in the Convention, and it is the special characteristic of agreements falling under one of the four heads of Sale, Partnership, Agency, and Hiring, that, as soon as the assent of the parties has supplied this ingredient, there is _at once_ a Contract. The Consensus draws with it the Obligation, performing, in transactions of the sort specified, the exact functions which are discharged, in the other contracts, by the _Res_ or Thing, by the _Verba_ stipulationis, and by the _Literæ_ or written entry in a ledger. Consensual is therefore a term which does not involve the slightest anomaly, but is exactly analogous to Real, Verbal, and Literal. In the intercourse of life the commonest and most important of all the contracts are unquestionably the four styled Consensual. The larger part of the collective existence of every community is consumed in transactions of buying and selling, of letting and hiring, of alliances between men for purposes of business, of delegation of business from one man to another; and this is no doubt the consideration which led the Romans, as it has led most societies, to relieve these transactions from technical incumbrance, to abstain as much as possible from clogging the most efficient springs of social movement. Such motives were not of course confined to Rome, and the commerce of the Romans with their neighbours must have given them abundant opportunities for observing that the contracts before us tended everywhere to become _Consensual_, obligatory on the mere signification of mutual assent. Hence, following their usual practice, they distinguished these contracts as contracts _Juris Gentium_. Yet I do not think that they were so named at a very early period. The first notions of a Jus Gentium may have been deposited in the minds of the Roman lawyers long before the appointment of a Prætor Peregrinus, but it would only be through extensive and regular trade that they would be familiarised with the contractual system of other Italian communities, and such a trade would scarcely attain considerable proportions before Italy had been thoroughly pacified, and the supremacy of Rome conclusively assured. Although, however, there is strong probability that the Consensual Contracts were the latest-born into the Roman system, and though it is likely that the qualification, _Juris Gentium_, stamps the recency of their origin, yet this very expression, which attributes them to the "Law of Nations," has in modern times produced the notion of their extreme antiquity. For, when the "Law of Nations" had been converted into the "Law of Nature," it seemed to be implied that the Consensual Contracts were the type of the agreements most congenial to the natural state; and hence arose the singular belief that the younger the civilisation, the simpler must be its forms of contract. The Consensual Contracts, it will be observed, were extremely limited in number. But it cannot be doubted that they constituted the stage in the history of Contract-law from which all modern conceptions of contract took their start. The motion of the will which constitutes agreement was now completely insulated, and became the subject of separate contemplation; forms were entirely eliminated from the notion of contract, and external acts were only regarded as symbols of the internal act of volition. The Consensual Contracts had, moreover, been classed in the Jus Gentium, and it was not long before this classification drew with it the inference that they were the species of agreement which represented the engagements approved of by Nature and included in her code. This point once reached, we are prepared for several celebrated doctrines and distinctions of the Roman lawyers. One of them is the distinction between Natural and Civil Obligations. When a person of full intellectual maturity had deliberately bound himself by an engagement, he was said to be under a _natural obligation_, even though he had omitted some necessary formality, and even though through some technical impediment he was devoid of the formal capacity for making a valid contract. The law (and this is what the distinction implies) would not enforce the obligation, but it did not absolutely refuse to recognise it; and _natural obligations_ differed in many respects from obligations which were merely null and void, more particularly in the circumstance that they could be civilly confirmed, if the capacity for contract were subsequently acquired. Another very peculiar doctrine of the jurisconsults could not have had its origin earlier than the period at which the Convention was severed from the technical ingredients of Contract. They taught that though nothing but a Contract could be the foundation of an _action_, a mere Pact or Convention could be the basis of a _plea_. It followed from this, that though nobody could sue upon an agreement which he had not taken the precaution to mature into a Contract by complying with the proper forms, nevertheless a claim arising out of a valid contract could be rebutted by proving a counter-agreement which had never got beyond the state of a simple convention. An action for the recovery of a debt could be met by showing a mere informal agreement to waive or postpone the payment. The doctrine just stated indicates the hesitation of the Prætors in making their advances towards the greatest of their innovations. Their theory of Natural law must have led them to look with especial favour on the Consensual Contracts and on those Pacts or Conventions of which the Consensual Contracts were only particular instances; but they did not at once venture on extending to all Conventions the liberty of the Consensual Contracts. They took advantage of that special superintendence over procedure which had been confided to them since the first beginnings of Roman law, and, while they still declined to permit a suit to be launched which was not based on a formal contract, they gave full play to their new theory of agreement in directing the ulterior stages of the proceeding. But, when they had proceeded thus far, it was inevitable that they should proceed farther. The revolution of the ancient law of Contract was consummated when the Prætor of some one year announced in his Edict that he would grant equitable actions upon Pacts which had never been matured at all into Contracts, provided only that the Pacts in question had been founded on a consideration (_causa_). Pacts of this sort are always enforced under the advanced Roman jurisprudence. The principle is merely the principle of the Consensual Contract carried to its proper consequence; and, in fact, if the technical language of the Romans had been as plastic as their legal theories, these Pacts enforced by the Prætor would have been styled new Contracts, new Consensual Contracts. Legal phraseology is, however, the part of the law which is the last to alter, and the Pacts equitably enforced continued to be designated simply Prætorian Pacts. It will be remarked that unless there were consideration for the Pact, it would continue _nude_ so far as the new jurisprudence was concerned; in order to give it effect, it would be necessary to convert it by a stipulation into a Verbal Contract. The extreme importance of this history of Contract, as a safeguard against almost innumerable delusions, must be my justification for discussing it at so considerable a length. It gives a complete account of the march of ideas from one great landmark of jurisprudence to another. We begin with Nexum, in which a Contract and a Conveyance are blended, and in which the formalities which accompany the agreement are even more important than the agreement itself. From the Nexum we pass to the Stipulation, which is a simplified form of the older ceremonial. The Literal Contract comes next, and here all formalities are waived, if proof of the agreement can be supplied from the rigid observances of a Roman household. In the Real Contract a moral duty is for the first time recognised, and persons who have joined or acquiesced in the partial performance of an engagement are forbidden to repudiate it on account of defects in form. Lastly, the Consensual Contracts emerge, in which the mental attitude of the contractors is solely regarded, and external circumstances have no title to notice except as evidence of the inward undertaking. It is of course uncertain how far this progress of Roman ideas from a gross to a refined conception exemplifies the necessary progress of human thought on the subject of Contract. The Contract-law of all other ancient societies but the Roman is either too scanty to furnish information, or else is entirely lost; and modern jurisprudence is so thoroughly leavened with the Roman notions that it furnishes us with no contrasts or parallels from which instruction can be gleaned. From the absence, however, of everything violent, marvellous, or unintelligible in the changes I have described, it may be reasonably believed that the history of ancient Roman Contracts is, up to a certain point, typical of the history of this class of legal conceptions in other ancient societies. But it is only up to a certain point that the progress of Roman law can be taken to represent the progress of other systems of jurisprudence. The theory of Natural law is exclusively Roman. The notion of the _vinculum juris_, so far as my knowledge extends, is exclusively Roman. The many peculiarities of the mature Roman law of Contract and Delict which are traceable to these two ideas, whether singly or in combination, are therefore among the exclusive products of one particular society. These later legal conceptions are important, not because they typify the necessary results of advancing thought under all conditions, but because they have exercised perfectly enormous influence on the intellectual diathesis of the modern world. I know nothing more wonderful than the variety of sciences to which Roman law, Roman Contract-law more particularly, has contributed modes of thought, courses of reasoning, and a technical language. Of the subjects which have whetted the intellectual appetite of the moderns, there is scarcely one, except Physics, which has not been filtered through Roman jurisprudence. The science of pure Metaphysics had, indeed, rather a Greek than a Roman parentage, but Politics, Moral Philosophy, and even Theology, found in Roman law not only a vehicle of expression, but a nidus in which some of their profoundest inquiries were nourished into maturity. For the purpose of accounting for this phenomenon, it is not absolutely necessary to discuss the mysterious relation between words and ideas, or to explain how it is that the human mind has never grappled with any subject of thought, unless it has been provided beforehand with a proper store of language and with an apparatus of appropriate logical methods. It is enough to remark, that, when the philosophical interests of the Eastern and Western worlds were separated, the founders of Western thought belonged to a society which spoke Latin and reflected in Latin. But in the Western provinces the only language which retained sufficient precision for philosophical purposes was the language of Roman law, which by a singular fortune had preserved nearly all the purity of the Augustan age, while vernacular Latin was degenerating into a dialect of portentous barbarism. And if Roman jurisprudence supplied the only means of exactness in speech, still more emphatically did it furnish the only means of exactness, subtlety, or depth in thought. For at least three centuries, philosophy and science were without a home in the West; and though metaphysics and metaphysical theology were engrossing the mental energies of multitudes of Roman subjects, the phraseology employed in these ardent inquiries was exclusively Greek, and their theatre was the Eastern half of the Empire. Sometimes, indeed, the conclusions of the Eastern disputants became so important that every man's assent to them, or dissent from them, had to be recorded, and then the West was introduced to the results of Eastern controversy, which it generally acquiesced in without interest and without resistance. Meanwhile, one department of inquiry, difficult enough for the most laborious, deep enough for the most subtle, delicate enough for the most refined, had never lost its attractions for the educated classes of the Western provinces. To the cultivated citizen of Africa, of Spain, of Gaul and of Northern Italy, it was jurisprudence, and jurisprudence only, which stood in the place of poetry and history, of philosophy and science. So far then from there being anything mysterious in the palpably legal complexion of the earliest efforts of Western thought it would rather be astonishing if it had assumed any other hue. I can only express my surprise at the scantiness of the attention which has been given to the difference between Western ideas and Eastern, between Western theology and Eastern, caused by the presence of a new ingredient. It is precisely because the influence of jurisprudence begins to be powerful that the foundation of Constantinople and the subsequent separation of the Western Empire from the Eastern, are epochs in philosophical history. But continental thinkers are doubtless less capable of appreciating the importance of this crisis by the very intimacy with which notions derived from Roman Law are mingled up with every-day ideas. Englishmen, on the other hand, are blind to it through the monstrous ignorance to which they condemn themselves of the most plentiful source of the stream of modern knowledge, of the one intellectual result of the Roman civilisation. At the same time, an Englishman, who will be at the pains to familiarise himself with the classical Roman law, is perhaps, from the very slightness of the interest which his countrymen have hitherto taken in the subject, a better judge than a Frenchman or a German of the value of the assertions I have ventured to make. Anybody who knows what Roman jurisprudence is, as actually practised by the Romans, and who will observe in what characteristics the earliest Western theology and philosophy differ from the phases of thought which preceded them, may be safely left to pronounce what was the new element which had begun to pervade and govern speculation. The part of Roman law which has had most extensive influence on foreign subjects of inquiry has been the law of Obligation, or what comes nearly to the same thing, of Contract and Delict. The Romans themselves were not unaware of the offices which the copious and malleable terminology belonging to this part of their system might be made to discharge, and this is proved by their employment of the peculiar adjunct _quasi_ in such expressions as Quasi-Contract and Quasi-Delict. "Quasi," so used, is exclusively a term of classification. It has been usual with English critics to identify the Quasi-contracts with _implied_ contracts, but this is an error, for implied contracts are true contracts, which quasi-contracts are not. In implied contracts, acts and circumstances are the symbols of the same ingredients which are symbolised, in express contracts, by words; and whether a man employs one set of symbols or the other must be a matter of indifference so far as concerns the theory of agreement. But a Quasi-Contract is not a contract at all. The commonest sample of the class is the relation subsisting between two persons one of whom has paid money to the other through mistake. The law, consulting the interests of morality, imposes an obligation on the receiver to refund, but the very nature of the transaction indicates that it is not a contract, inasmuch as the Convention, the most essential ingredient of Contract, is wanting. This word "quasi," prefixed to a term of Roman law, implies that the conception to which it serves as an index is connected with the conception with which the comparison is instituted by a strong superficial analogy or resemblance. It does not denote that the two conceptions are the same or that they belong to the same genus. On the contrary, it negatives the notion of an identity between them; but it points out that they are sufficiently similar for one to be classed as the sequel to the other, and that the phraseology taken from one department of law may be transferred to the other and employed without violent straining in the statement of rules which would otherwise be imperfectly expressed. It has been shrewdly remarked, that the confusion between Implied Contracts, which are true contracts, and Quasi Contracts, which are not contracts at all, has much in common with the famous error which attributed political rights and duties to an Original Compact between the governed and the governor. Long before this theory had clothed itself in definite shape, the phraseology of Roman contract-law had been largely drawn upon to describe that reciprocity of rights and duties which men had always conceived as existing between sovereigns and subjects. While the world was full of maxims setting forth with the utmost positiveness the claims of kings to implicit obedience--maxims which pretended to have had their origin in the New Testament, but which were really derived from indelible recollections of the Cæsarian despotism--the consciousness of correlative rights possessed by the governed would have been entirely without the means of expression if the Roman law of Obligation had not supplied a language capable of shadowing forth an idea which was as yet imperfectly developed. The antagonism between the privileges of kings and their duties to their subjects was never, I believe, lost sight of since Western history began, but it had interest for few except speculative writers so long as feudalism continued in vigour, for feudalism effectually controlled by express customs the exorbitant theoretical pretensions of most European sovereigns. It is notorious, however, that as soon as the decay of the Feudal System had thrown the mediæval constitutions out of working order, and when the Reformation had discredited the authority of the Pope, the doctrine of the divine right of Kings rose immediately into an importance which had never before attended it. The vogue which it obtained entailed still more constant resort to the phraseology of Roman law, and a controversy which had originally worn a theological aspect assumed more and more the air of a legal disputation. A phenomenon then appeared which has repeatedly shown itself in the history of opinion. Just when the argument for monarchical authority rounded itself into the definite doctrine of Filmer, the phraseology, borrowed from the Law of Contract, which had been used in defence of the rights of subjects, crystallised into the theory of an actual original compact between king and people, a theory which, first in English and afterwards, and more particularly, in French hands, expanded into a comprehensive explanation of all the phenomena of society and law. But the only real connection between political and legal science had consisted in the last giving to the first the benefit of its peculiarly plastic terminology. The Roman jurisprudence of Contract had performed for the relation of sovereign and subject precisely the same service which, in a humbler sphere, it rendered to the relation of persons bound together by an obligation of "quasi-contract." It had furnished a body of words and phrases which approximated with sufficient accuracy to the ideas which then were from time to time forming on the subject of political obligation. The doctrine of an Original Compact can never be put higher than it is placed by Dr. Whewell, when he suggests that, though unsound, "it may be a _convenient_ form for the expression of moral truths." The extensive employment of legal language on political subjects previously to the invention of the Original Compact, and the powerful influence which that assumption has exercised subsequently, amply account for the plentifulness in political science of words and conceptions, which were the exclusive creation of Roman jurisprudence. Of their plentifulness in Moral Philosophy a rather different explanation must be given, inasmuch as ethical writings have laid Roman law under contribution much more directly than political speculations, and their authors have been much more conscious of the extent of their obligation. In speaking of moral philosophy as extraordinarily indebted to Roman jurisprudence, I must be understood to intend moral philosophy as understood previously to the break in its history effected by Kant, that is, as the science of the rules governing human conduct, of their proper interpretation and of the limitations to which they are subject. Since the rise of the Critical Philosophy, moral science has almost wholly lost its older meaning, and, except where it is preserved under a debased form in the casuistry still cultivated by Roman Catholic theologians, it seems to be regarded nearly universally as a branch of ontological inquiry. I do not know that there is a single contemporary English writer, with the exception of Dr. Whewell, who understands moral philosophy as it was understood before it was absorbed by metaphysics and before the groundwork of its rules came to be a more important consideration than the rules themselves. So long, however, as ethical science had to do with the practical regimen of conduct, it was more or less saturated with Roman law. Like all the great subjects of modern thought, it was originally incorporated with theology. The science of Moral Theology, as it was at first called, and as it is still designated by the Roman Catholic divines, was undoubtedly constructed, to the full knowledge of its authors, by taking principles of conduct from the system of the Church, and by using the language and methods of jurisprudence for their expression and expansion. While this process went on, it was inevitable that jurisprudence, though merely intended to be the vehicle of thought, should communicate its colour to the thought itself. The tinge received through contact with legal conceptions is perfectly perceptible in the earliest ethical literature of the modern world, and it is evident, I think, that the Law of Contract, based as it is on the complete reciprocity and indissoluble connection of rights and duties, has acted as a wholesome corrective to the predispositions of writers who, if left to themselves, might have exclusively viewed a moral obligation as the public duty of a citizen in the Civitas Dei. But the amount of Roman Law in moral theology becomes sensibly smaller at the time of its cultivation by the great Spanish moralists. Moral theology, developed by the juridical method of doctor commenting on doctor, provided itself with a phraseology of its own, and Aristotelian peculiarities of reasoning and expression, imbibed doubtless in great part from the Disputations on Morals in the academical schools, take the place of that special turn of thought and speech which can never be mistaken by any person conversant with the Roman law. If the credit of the Spanish school of moral theologians had continued, the juridical ingredient in ethical science would have been insignificant, but the use made of their conclusions by the next generation of Roman Catholic writers on these subjects almost entirely destroyed their influence. Moral Theology, degraded into Casuistry, lost all interest for the leaders of European speculation; and the new science of Moral Philosophy, which was entirely in the hands of the Protestants, swerved greatly aside from the path which the moral theologians had followed. The effect was vastly to increase the influence of Roman law on ethical inquiry. Shortly[5] after the Reformation, we find two great schools of thought dividing this class of subjects between them. The most influential of the two was at first the sect of school known to us as the Casuists, all of them in spiritual communion with the Roman Catholic Church, and nearly all of them affiliated to one or other of her religious orders. On the other side were a body of writers connected with each other by a common intellectual descent from the great author of the treatise _De Jure Belli et Pacis_, Hugo Grotius. Almost all of the latter were adherents of the Reformation, and though it cannot be said that they were formally and avowedly at conflict with the Casuists, the origin and object of their system were nevertheless essentially different from those of Casuistry. It is necessary to call attention to this difference, because it involves the question of the influence of Roman law on that department of thought with which both systems are concerned. The book of Grotius, though it touches questions of pure Ethics in every page, and though it is the parent immediate or remote of innumerable volumes of formal morality, is not, as is well known, a professed treatise on Moral Philosophy; it is an attempt to determine the Law of Nature, or Natural Law. Now, without entering upon the question, whether the conception of a Law Natural be not exclusively a creation of the Roman jurisconsults, we may lay down that, even on the admission of Grotius himself, the dicta of the Roman jurisprudence as to what parts of known positive law must be taken to be parts of the Law of Nature, are, if not infallible, to be received at all events with the profoundest respect. Hence the system of Grotius is implicated with Roman law at its very foundation, and this connection rendered inevitable--what the legal training of the writer would perhaps have entailed without it--the free employment in every paragraph of technical phraseology, and of modes of reasoning, defining, and illustrating, which must sometimes conceal the sense, and almost always the force and cogency, of the argument from the reader who is unfamiliar with the sources whence they have been derived. On the other hand, Casuistry borrows little from Roman law, and the views of morality contended for have nothing whatever in common with the undertaking of Grotius. All that philosophy of right and wrong which has become famous, or infamous, under the name of Casuistry, had its origin in the distinction between Mortal and Venial Sin. A natural anxiety to escape the awful consequences of determining a particular act to be mortally sinful, and a desire, equally intelligible, to assist the Roman Catholic Church in its conflict with Protestantism by disburthening it of an inconvenient theory, were the motives which impelled the authors of the Casuistical philosophy to the invention of an elaborate system of criteria, intended to remove immoral actions, in as many cases as possible, out of the category of mortal offences, and to stamp them as venial sins. The fate of this experiment is matter of ordinary history. We know that the distinctions of Casuistry, by enabling the priesthood to adjust spiritual control to all the varieties of human character, did really confer on it an influence with princes, statesmen, and generals, unheard of in the ages before the Reformation, and did really contribute largely to that great reaction which checked and narrowed the first successes of Protestantism. But beginning in the attempt, not to establish, but to evade--not to discover a principle, but to escape a postulate--not to settle the nature of right and wrong, but to determine what was not wrong of a particular nature,--Casuistry went on with its dexterous refinements till it ended in so attenuating the moral features of actions, and so belying the moral instincts of our being, that at length the conscience of mankind rose suddenly in revolt against it, and consigned to one common ruin the system and its doctors. The blow, long pending, was finally struck in the _Provincial Letters_ of Pascal, and since the appearance of those memorable Papers, no moralist of the smallest influence or credit has ever avowedly conducted his speculations in the footsteps of the Casuists. The whole field of ethical science was thus left at the exclusive command of the writers who followed Grotius; and it still exhibits in an extraordinary degree the traces of that entanglement with Roman law which is sometimes imputed as a fault, and sometimes the highest of its recommendations, to the Grotian theory. Many inquirers since Grotius's day have modified his principles, and many, of course, since the rise of the Critical Philosophy, have quite deserted them; but even those who have departed most widely from his fundamental assumptions have inherited much of his method of statement, of his train of thought, and of his mode of illustration; and these have little meaning and no point to the person ignorant of Roman jurisprudence. I have already said that, with the exception of the physical sciences, there is no walk of knowledge which has been so slightly affected by Roman law as Metaphysics. The reason is that discussion on metaphysical subjects has always been conducted in Greek, first in pure Greek, and afterwards in a dialect of Latin expressly constructed to give expression to Greek conceptions. The modern languages have only been fitted to metaphysical inquiries by adopting this Latin dialect, or by imitating the process which was originally followed in its formation. The source of the phraseology which has been always employed for metaphysical discussion in modern times was the Latin translations of Aristotle, in which, whether derived or not from Arabic versions, the plan of the translator was not to seek for analogous expressions in any part of Latin literature, but to construct anew from Latin roots a set of phrases equal to the expression of Greek philosophical ideas. Over such a process the terminology of Roman law can have exercised little influence; at most, a few Latin law terms in a transmuted shape have made their way into metaphysical language. At the same time it is worthy of remark that whenever the problems of metaphysics are those which have been most strongly agitated in Western Europe, the thought, if not the language, betrays a legal parentage. Few things in the history of speculation are more impressive than the fact that no Greek-speaking people has ever felt itself seriously perplexed by the great question of Free-will and Necessity. I do not pretend to offer any summary explanation of this, but it does not seem an irrelevant suggestion that neither the Greeks, nor any society speaking and thinking in their language, ever showed the smallest capacity for producing a philosophy of law. Legal science is a Roman creation, and the problem of Free-will arises when we contemplate a metaphysical conception under a legal aspect. How came it to be a question whether invariable sequence was identical with necessary connection? I can only say that the tendency of Roman law, which became stronger as it advanced, was to look upon legal consequences as united to legal causes by an inexorable necessity, a tendency most markedly exemplified in the definition of Obligation which I have repeatedly cited, "Juris vinculum quo necessitate adstringimur alicujus solvendæ rei." But the problem of Free-will was theological before it became philosophical, and, if its terms have been affected by jurisprudence, it will be because Jurisprudence had made itself felt in Theology. The great point of inquiry which is here suggested has never been satisfactorily elucidated. What has to be determined, is whether jurisprudence has ever served as the medium through which theological principles have been viewed; whether, by supplying a peculiar language, a peculiar mode of reasoning, and a peculiar solution of many of the problems of life, it has ever opened new channels in which theological speculation could flow out and expand itself. For the purpose of giving an answer it is necessary to recollect what is already agreed upon by the best writers as to the intellectual food which theology first assimilated. It is conceded on all sides that the earliest language of the Christian Church was Greek, and that the problems to which it first addressed itself were those for which Greek philosophy in its later forms had prepared the way. Greek metaphysical literature contained the sole stock of words and ideas out of which the human mind could provide itself with the means of engaging in the profound controversies as to the Divine Persons, the Divine Substance, and the Divine Natures. The Latin language and the meagre Latin philosophy were quite unequal to the undertaking, and accordingly the Western or Latin-speaking provinces of the Empire adopted the conclusions of the East without disputing or reviewing them. "Latin Christianity," says Dean Milman, "accepted the creed which its narrow and barren vocabulary could hardly express in adequate terms. Yet, throughout, the adhesion of Rome and the West was a passive acquiescence in the dogmatic system which had been wrought out by the profounder theology of the Eastern divines, rather than a vigorous and original examination on her part of those mysteries. The Latin Church was the scholar as well as the loyal partizan of Athanasius." But when the separation of East and West became wider, and the Latin-speaking Western Empire began to live with an intellectual life of its own, its deference to the East was all at once exchanged for the agitation of a number of questions entirely foreign to Eastern speculation. "While Greek theology (Milman, _Latin Christianity_, Preface, 5) went on defining with still more exquisite subtlety the Godhead and the nature of Christ"--"while the interminable controversy still lengthened out and cast forth sect after sect from the enfeebled community"--the Western Church threw itself with passionate ardour into a new order of disputes, the same which from those days to this have never lost their interest for any family of mankind at any time included in the Latin communion. The nature of Sin and its transmission by inheritance--the debt owed by man and its vicarious satisfaction--the necessity and sufficiency of the Atonement--above all the apparent antagonism between Free-will and the Divine Providence--these were the points which the West began to debate as ardently as ever the East had discussed the articles of its more special creed. Why is it then that on the two sides of the line which divides the Greek-speaking from the Latin-speaking provinces there lie two classes of theological problems so strikingly different from one another? The historians of the Church have come close upon the solution when they remark that the new problems were more "practical," less absolutely speculative, than those which had torn Eastern Christianity asunder, but none of them, so far as I am aware, has quite reached it. I affirm without hesitation that the difference between the two theological systems is accounted for by the fact that, in passing from the East to the West, theological speculation had passed from a climate of Greek metaphysics to a climate of Roman law. For some centuries before these controversies rose into overwhelming importance, all the intellectual activity of the Western Romans had been expended on jurisprudence exclusively. They had been occupied in applying a peculiar set of principles to all the combinations in which the circumstances of life are capable of being arranged. No foreign pursuit or taste called off their attention from this engrossing occupation, and for carrying it on they possessed a vocabulary as accurate as it was copious, a strict method of reasoning, a stock of general propositions on conduct more or less verified by experience, and a rigid moral philosophy. It was impossible that they should not select from the questions indicated by the Christian records those which had some affinity with the order of speculations to which they were accustomed, and that their manner of dealing with them should borrow something from their forensic habits. Almost everybody who has knowledge enough of Roman law to appreciate the Roman penal system, the Roman theory of the obligations established by Contract or Delict, the Roman view of Debts and of the modes of incurring, extinguishing, and transmitting them, the Roman notion of the continuance of individual existence by Universal Succession, may be trusted to say whence arose the frame of mind to which the problems of Western theology proved so congenial, whence came the phraseology in which these problems were stated, and whence the description of reasoning employed in their solution. It must only be recollected that Roman law which had worked itself into Western thought was neither the archaic system of the ancient city, nor the pruned and curtailed jurisprudence of the Byzantine Emperors; still less, of course, was it the mass of rules, nearly buried in a parasitical overgrowth of modern speculative doctrine, which passes by the name of Modern Civil Law. I speak only of that philosophy of jurisprudence, wrought out by the great juridical thinkers of the Antonine age, which may still be partially reproduced from the Pandects of Justinian, a system to which few faults can be attributed except it perhaps aimed at a higher degree of elegance, certainty, and precision, than human affairs will permit to the limits within which human laws seek to confine them. It is a singular result of that ignorance of Roman law which Englishmen readily confess, and of which they are sometimes not ashamed to boast, that many English writers of note and credit have been led by it to put forward the most untenable of paradoxes concerning the condition of human intellect during the Roman Empire. It has been constantly asserted, as unhesitatingly as if there were no temerity in advancing the proposition, that from the close of the Augustan era to the general awakening of interest on the points of the Christian faith, the mental energies of the civilised world were smitten with a paralysis. Now there are two subjects of thought--the only two perhaps with the exception of physical science--which are able to give employment to all the powers and capacities which the mind possesses. One of them is Metaphysical inquiry, which knows no limits so long as the mind is satisfied to work on itself; the other is Law, which is as extensive as the concerns of mankind. It happens that, during the very period indicated, the Greek-speaking provinces were devoted to one, the Latin-speaking provinces to the other, of these studies. I say nothing of the fruits of speculation in Alexandria and the East, but I confidently affirm that Rome and the West had an occupation in hand fully capable of compensating them for the absence of every other mental exercise, and I add that the results achieved, so far as we know them, were not unworthy of the continuous and exclusive labour bestowed on producing them. Nobody except a professional lawyer is perhaps in a position completely to understand how much of the intellectual strength of individuals Law is capable of absorbing, but a layman has no difficulty in comprehending why it was that an unusual share of the collective intellect of Rome was engrossed by jurisprudence. "The proficiency[6] of a given community in jurisprudence depends in the long run on the same conditions as its progress in any other line of inquiry; and the chief of these are the proportion of the national intellect devoted to it, and the length of time during which it is so devoted. Now, a combination of all the causes, direct and indirect, which contribute to the advancing and perfecting of a science continued to operate on the jurisprudence of Rome through the entire space between the Twelve Tables and the severance of the two Empires,--and that not irregularly or at intervals, but in steadily increasing force and constantly augmenting number. We should reflect that the earliest intellectual exercise to which a young nation devotes itself is the study of its laws. As soon as the mind makes its first conscious efforts towards generalisation, the concerns of every-day life are the first to press for inclusion within general rules and comprehensive formulas. The popularity of the pursuit on which all the energies of the young commonwealth are bent is at the outset unbounded; but it ceases in time. The monopoly of mind by law is broken down. The crowd at the morning audience of the great Roman jurisconsult lessens. The students are counted by hundreds instead of thousands in the English Inns of Court. Art, Literature, Science, and Politics, claim their share of the national intellect; and the practice of jurisprudence is confined within the circle of a profession, never indeed limited or insignificant, but attracted as much by the rewards as by the intrinsic recommendations of their science. This succession of changes exhibited itself even more strikingly at Rome than in England. To the close of the Republic the law was the sole field for all ability except the special talent of a capacity for generalship. But a new stage of intellectual progress began with the Augustan age, as it did with our own Elizabethan era. We all know what were its achievements in poetry and prose; but there are some indications, it should be remarked, that, besides its efflorescence in ornamental literature, it was on the eve of throwing out new aptitudes for conquest in physical science. Here, however, is the point at which the history of mind in the Roman State ceases to be parallel to the routes which mental progress had since then pursued. The brief span of Roman literature, strictly so called, was suddenly closed under a variety of influences, which though they may partially be traced it would be improper in this place to analyse. Ancient intellect was forcibly thrust back into its old courses, and law again became no less exclusively the proper sphere for talent than it had been in the days when the Romans despised philosophy and poetry as the toys of a childish race. Of what nature were the external inducements which, during the Imperial period, tended to draw a man of inherent capacity to the pursuits of the jurisconsult may best be understood by considering the option which was practically before him in his choice of a profession. He might become a teacher of rhetoric, a commander of frontier-posts, or a professional writer of panegyrics. The only other walk of active life which was open to him was the practice of the law. Through _that_ lay the approach to wealth, to fame, to office, to the council-chamber of the monarch--it may be to the very throne itself." The premium on the study of jurisprudence was so enormous that there were schools of law in every part of the Empire, even in the very domain of Metaphysics. But, though the transfer of the seat of empire to Byzantium gave a perceptible impetus to its cultivation in the East, jurisprudence never dethroned the pursuits which there competed with it. Its language was Latin, an exotic dialect in the Eastern half of the Empire. It is only of the West that we can lay down that law was not only the mental food of the ambitious and aspiring, but the sole aliment of all intellectual activity. Greek philosophy had never been more than a transient fashionable taste with the educated class of Rome itself, and when the new Eastern capital had been created, and the Empire subsequently divided into two, the divorce of the Western provinces from Greek speculation, and their exclusive devotion to jurisprudence, became more decided than ever. As soon then as they ceased to sit at the feet of the Greeks and began to ponder out a theology of their own, the theology proved to be permeated with forensic ideas and couched in a forensic phraseology. It is certain that this substratum of law in Western theology lies exceedingly deep. A new set of Greek theories, the Aristotelian philosophy, made their way afterwards into the West and almost entirely buried its indigenous doctrines. But when at the Reformation it partially shook itself free from their influence, it instantly supplied their place with Law. It is difficult to say whether the religious system of Calvin or the religious system of the Arminians has the more markedly legal character. The vast influence of the specific jurisprudence of Contract produced by the Romans upon the corresponding department of modern Law belongs rather to the history of mature jurisprudence than to a treatise like the present. It did not make itself felt till the school of Bologna founded the legal science of modern Europe. But the fact that the Romans, before their Empire fell, had so fully developed the conception of Contract becomes of importance at a much earlier period than this. Feudalism, I have repeatedly asserted, was a compound of archaic barbarian usage with Roman law; no other explanation of it is tenable, or even intelligible. The earliest social forms of the feudal period differ in little from the ordinary associations in which the men of primitive civilisations are everywhere seen united. A Fief was an organically complete brotherhood of associates whose proprietary and personal rights were inextricably blended together. It had much in common with an Indian Village Community and much in common with a Highland clan. But still it presents some phenomena which we never find in the associations which are spontaneously formed by beginners in civilisation. True archaic communities are held together not by express rules, but by sentiment, or, we should perhaps say, by instinct; and new comers into the brotherhood are brought within the range of this instinct by falsely pretending to share in the blood-relationship from which it naturally springs. But the earliest feudal communities were neither bound together by mere sentiment nor recruited by a fiction. The tie which united them was Contract, and they obtained new associates by contracting with them. The relation of the lord to the vassals had originally been settled by express engagement, and a person wishing to engraft himself on the brotherhood by _commendation_ or _infeudation_ came to a distinct understanding as to the conditions on which he was to be admitted. It is therefore the sphere occupied in them by Contract which principally distinguishes the feudal institutions from the unadulterated usages of primitive races. The lord had many of the characteristics of a patriarchal chieftain, but his prerogative was limited by a variety of settled customs traceable to the express conditions which had been agreed upon when the infeudation took place. Hence flow the chief differences which forbid us to class the feudal societies with true archaic communities. They were much more durable and much more various; more durable, because express rules are less destructible than instinctive habits, and more various, because the contracts on which they were founded were adjusted to the minutest circumstances and wishes of the persons who surrendered or granted away their lands. This last consideration may serve to indicate how greatly the vulgar opinions current among us as to the origin of modern society stand in need of revision. It is often said that the irregular and various contour of modern civilisation is due to the exuberant and erratic genius of the Germanic races, and it is often contrasted with the dull routine of the Roman Empire. The truth is that the Empire bequeathed to modern society the legal conception to which all this irregularity is attributable; if the customs and institutions of barbarians have one characteristic more striking than another, it is their extreme uniformity. [5] The passage quoted is transcribed with slight alterations from a paper contributed by the author to the _Cambridge Essays_ for 1856. [6] _Cambridge Essays_, 1856. CHAPTER X THE EARLY HISTORY OF DELICT AND CRIME The Teutonic Codes, including those of our Anglo-Saxon ancestors, are the only bodies of archaic secular law which have come down to us in such a state that we can form an exact notion of their original dimensions. Although the extant fragments of Roman and Hellenic codes suffice to prove to us their general character, there does not remain enough of them for us to be quite sure of their precise magnitude or of the proportion of their parts to each other. But still on the whole all the known collections of ancient law are characterised by a feature which broadly distinguishes them from systems of mature jurisprudence. The proportion of criminal to civil law is exceedingly different. In the German codes, the civil part of the law has trifling dimensions as compared with the criminal. The traditions which speak of the sanguinary penalties inflicted by the code of Draco seem to indicate that it had the same characteristic. In the Twelve Tables alone, produced by a society of greater legal genius and at first of gentler manners, the civil law has something like its modern precedence; but the relative amount of space given to the modes of redressing wrong, though not enormous, appears to have been large. It may be laid down, I think, that the more archaic the code, the fuller and the minuter is its penal legislation. The phenomenon has often been observed, and has been explained, no doubt to a great extent correctly, by the violence habitual to the communities which for the first time reduced their laws to writing. The legislator, it is said, proportioned the divisions of his work to the frequency of a certain class of incidents in barbarian life. I imagine, however, that this account is not quite complete. It should be recollected that the comparative barrenness of civil law in archaic collections is consistent with those other characteristics of ancient jurisprudence which have been discussed in this treatise. Nine-tenths of the civil part of the law practised by civilised societies are made up of the Law of Persons, of the Law of Property and of Inheritance, and of the Law of Contract. But it is plain that all these provinces of jurisprudence must shrink within narrower boundaries, the nearer we make our approaches to the infancy of social brotherhood. The Law of Persons, which is nothing else than the Law of Status, will be restricted to the scantiest limits as long as all forms of status are merged in common subjection to Paternal Power, as long as the Wife has no rights against her Husband, the Son none against his Father, and the infant Ward none against the Agnates who are his Guardians. Similarly, the rules relating to Property and Succession can never be plentiful, so long as land and goods devolve within the family, and, if distributed at all, are distributed inside its circle. But the greatest gap in ancient civil law will always be caused by the absence of Contract, which some archaic codes do not mention at all, while others significantly attest the immaturity of the moral notions on which Contract depends by supplying its place with an elaborate jurisprudence of Oaths. There are no corresponding reasons for the poverty of penal law, and accordingly, even if it be hazardous to pronounce that the childhood of nations is always a period of ungoverned violence, we shall still be able to understand why the modern relation of criminal law to civil should be inverted in ancient codes. I have spoken of primitive jurisprudence as giving to _criminal_ law a priority unknown in a later age. The expression has been used for convenience' sake, but in fact the inspection of ancient codes shows that the law which they exhibit in unusual quantities is not true criminal law. All civilised systems agree in drawing a distinction between offences against the State or Community and offences against the Individual, and the two classes of injuries, thus kept apart, I may here, without pretending that the terms have always been employed consistently in jurisprudence, call Crimes and Wrongs, _crimina_ and _delicta_. Now the penal law of ancient communities is not the law of Crimes; it is the law of Wrongs, or, to use the English technical word, of Torts. The person injured proceeds against the wrong-doer by an ordinary civil action, and recovers compensation in the shape of money-damages if he succeeds. If the Commentaries of Gaius be opened at the place where the writer treats of the penal jurisprudence founded on the Twelve Tables, it will be seen that at the head of the civil wrongs recognised by the Roman law stood _Furtum_ or _Theft_. Offences which we are accustomed to regard exclusively as _crimes_ are exclusively treated as _torts_, and not theft only, but assault and violent robbery, are associated by the jurisconsult with trespass, libel and slander. All alike gave rise to an Obligation or _vinculum juris_, and were all requited by a payment of money. This peculiarity, however, is most strongly brought out in the consolidated Laws of the Germanic tribes. Without an exception, they describe an immense system of money compensations for homicide, and with few exceptions, as large a scheme of compensations for minor injuries. "Under Anglo-Saxon law," writes Mr. Kemble (_Anglo-Saxons_, i. 177), "a sum was placed on the life of every free man, according to his rank, and a corresponding sum on every wound that could be inflicted on his person, for nearly every injury that could be done to his civil rights, honour or peace; the sum being aggravated according to adventitious circumstances." These compositions are evidently regarded as a valuable source of income; highly complex rules regulate the title to them and the responsibility for them; and, as I have already had occasion to state, they often follow a very peculiar line of devolution, if they have not been acquitted at the decease of the person to whom they belong. If therefore the criterion of a _delict_, _wrong_, or _tort_ be that the person who suffers it, and not the State, is conceived to be wronged, it may be asserted that in the infancy of jurisprudence the citizen depends for protection against violence or fraud not on the Law of Crime but on the Law of Tort. Torts then are copiously enlarged upon in primitive jurisprudence. It must be added that Sins are known to it also. Of the Teutonic codes it is almost unnecessary to make this assertion, because those codes, in the form in which we have received them, were compiled or recast by Christian legislators. But it is also true that non-Christian bodies of archaic law entail penal consequences on certain classes of acts and on certain classes of omissions, as being violations of divine prescriptions and commands. The law administered at Athens by the Senate of Areopagus was probably a special religious code, and at Rome, apparently from a very early period, the Pontifical jurisprudence punished adultery, sacrilege and perhaps murder. There were therefore in the Athenian and in the Roman States laws punishing _sins_. There were also laws punishing _torts_. The conception of offence against God produced the first class of ordinances; the conception of offence against one's neighbour produced the second; but the idea of offence against the State or aggregate community did not at first produce a true criminal jurisprudence. Yet it is not to be supposed that a conception so simple and elementary as that of wrong done to the State was wanting in any primitive society. It seems rather that the very distinctness with which this conception is realised is the true cause which at first prevents the growth of a criminal law. At all events, when the Roman community conceived itself to be injured, the analogy of a personal wrong received was carried out to its consequences with absolute literalness, and the State avenged itself by a single act on the individual wrong-doer. The result was that, in the infancy of the commonwealth, every offence vitally touching its security or its interests was punished by a separate enactment of the legislature. And this is the earliest conception of a _crimen_ or Crime--an act involving such high issues that the State, instead of leaving its cognisance to the civil tribunal or the religious court, directed a special law or _privilegium_ against the perpetrator. Every indictment therefore took the form of a bill of pains and penalties, and the trial of a _criminal_ was a proceeding wholly extraordinary, wholly irregular, wholly independent of settled rules and fixed conditions. Consequently, both for the reason that the tribunal dispensing justice was the sovereign state itself and also for the reason that no classification of the acts prescribed or forbidden was possible, there was not at this epoch any _Law_ of crimes, any criminal jurisprudence. The procedure was identical with the forms of passing an ordinary statute; it was set in motion by the same persons and conducted with precisely the same solemnities. And it is to be observed that, when a regular criminal law with an apparatus of Courts and officers for its administration had afterwards come into being, the old procedure, as might be supposed from its conformity with theory, still in strictness remained practicable; and, much as resort to such an expedient was discredited, the people of Rome always retained the power of punishing by a special law offences against its majesty. The classical scholar does not require to be reminded that in exactly the same manner the Athenian Bill of Pains and Penalties, or [Greek: eisangelia], survived the establishment of regular tribunals. It is known too that when the freemen of the Teutonic races assembled for legislation, they also claimed authority to punish offences of peculiar blackness or perpetrated by criminals of exalted station. Of this nature was the criminal jurisdiction of the Anglo-Saxon Witenagemot. It may be thought that the difference which I have asserted to exist between the ancient and modern view of penal law has only a verbal existence. The community, it may be said, besides interposing to punish crimes legislatively, has from the earliest times interfered by its tribunals to compel the wrong-doer to compound for his wrong, and, if it does this, it must always have supposed that in some way it was injured through his offence. But, however rigorous this inference may seem to us now-a-days, it is very doubtful whether it was actually drawn by the men of primitive antiquity. How little the notion of injury to the community had to do with the earliest interferences of the State _through its tribunals_, is shown by the curious circumstances that in the original administration of justice, the proceedings were a close imitation of the series of acts which were likely to be gone through in private life by persons who were disputing, but who afterwards suffered their quarrel to be appeased. The magistrate carefully simulated the demeanour of a private arbitrator casually called in. In order to show that this statement is not a mere fanciful conceit, I will produce the evidence on which it rests. Very far the most ancient judicial proceeding known to us is the Legis Actio Sacramenti of the Romans, out of which all the later Roman Law of Actions may be proved to have grown. Gaius carefully describes its ceremonial. Unmeaning and grotesque as it appears at first sight, a little attention enables us to decipher and interpret it. The subject of litigation is supposed to be in Court. If it is moveable, it is actually there. If it be immoveable, a fragment or sample of it is brought in its place; land, for instance, is represented by a clod, a house by a single brick. In the example selected by Gaius, the suit is for a slave. The proceeding begins by the plaintiff's advancing with a rod, which, as Gaius expressly tells, symbolised a spear. He lays hold of the slave and asserts a right to him with the words, "_Hunc ego hominem ex Jure Quiritium meum esse dico secundum suam causam sicut dixi_;" and then saying, "_Ecce tibi Vindictam imposui_," he touches him with the spear. The defendant goes through the same series of acts and gestures. On this the Prætor intervenes, and bids the litigants relax their hold, "_Mittite ambo hominem_." They obey, and the plaintiff demands from the defendant the reason of his interference, "_Postulo anne dicas quâ ex causâ vindicaveris_," a question which is replied to by a fresh assertion of right, "_Jus peregi sicut vindictam imposui_." On this, the first claimant offers to stake a sum of money, called a Sacramentum, on the justice of his own case, "_Quando tu injuriâ provocasti, D æris Sacramento te provoco_," and the defendant, in the phrase "_Similiter ego te_," accepts the wager. The subsequent proceedings were no longer of a formal kind, but it is to be observed that the Prætor took security for the Sacramentum, which always went into the coffers of the State. Such was the necessary preface of every ancient Roman suit. It is impossible, I think, to refuse assent to the suggestion of those who see in it a dramatisation of the Origin of Justice. Two armed men are wrangling about some disputed property. The Prætor, _vir pietate gravis_, happens to be going by, and interposes to stop the contest. The disputants state their case to him, and agree that he shall arbitrate between them, it being arranged that the loser, besides resigning the subject of the quarrel, shall pay a sum of money to the umpire as remuneration for his trouble and loss of time. This interpretation would be less plausible than it is, were it not that, by a surprising coincidence, the ceremony described by Gaius as the imperative course of proceeding in a Legis Actio is substantially the same with one of the two subjects which the God Hephæstus is described by Homer as moulding into the First Compartment of the Shield of Achilles. In the Homeric trial-scene, the dispute, as if expressly intended to bring out the characteristics of primitive society, is not about property but about the composition for a homicide. One person asserts that he has paid it, the other that he has never received it. The point of detail, however, which stamps the picture as the counterpart of the archaic Roman practice is the reward designed for the judges. Two talents of gold lie in the middle, to be given to him who shall explain the grounds of the decision most to the satisfaction of the audience. The magnitude of this sum as compared with the trifling amount of the Sacramentum seems to me indicative of the indifference between fluctuating usage and usage consolidated into law. The scene introduced by the poet as a striking and characteristic, but still only occasional, feature of city-life in the heroic age has stiffened, at the opening of the history of civil process, into the regular, ordinary formalities of a lawsuit. It is natural therefore that in the Legis Actio the remuneration of the Judge should be reduced to a reasonable sum, and that, instead of being adjudged to one of a number of arbitrators by popular acclamation, it should be paid as a matter of course to the State which the Prætor represents. But that the incidents described so vividly by Homer, and by Gaius with even more than the usual crudity of technical language, have substantially the same meaning, I cannot doubt; and, in confirmation of this view, it may be added that many observers of the earliest judicial usages of modern Europe have remarked that the fines inflicted by Courts on offenders were originally _sacramenta_. The State did not take from the defendant a composition for any wrong supposed to be done to itself, but claimed a share in the compensation awarded to the plaintiff simply as the fair price of its time and trouble. Mr. Kemble expressly assigns this character to the Anglo-Saxon _bannum_ or _fredum_. Ancient law furnishes other proofs that the earliest administrators of justice simulated the probable acts of persons engaged in a private quarrel. In settling the damages to be awarded, they took as their guide the measure of vengeance likely to be exacted by an aggrieved person under the circumstances of the case. This is the true explanation of the very different penalties imposed by ancient law on offenders caught in the act or soon after it and on offenders detected after considerable delay. Some strange exemplifications of this peculiarity are supplied by the old Roman law of Theft. The Laws of the Twelve Tables seem to have divided Thefts into Manifest and Non-Manifest, and to have allotted extraordinarily different penalties to the offence according as it fell under one head or the other. The Manifest Thief was he who was caught within the house in which he had been pilfering, or who was taken while making off to a place of safety with the stolen goods; the Twelve Tables condemned him to be put to death if he were already a slave, and, if he was a freeman, they made him the bondsman of the owner of the property. The Non-Manifest Thief was he who was detected under any other circumstances than those described; and the old code simply directed that an offender of this sort should refund double the value of what he had stolen. In Gaius's day the excessive severity of the Twelve Tables to the Manifest Thief had naturally been much mitigated, but the law still maintained the old principle by mulcting him in fourfold the value of the stolen goods, while the Non-Manifest Thief still continued to pay merely the double. The ancient lawgiver doubtless considered that the injured proprietor, if left to himself, would inflict a very different punishment when his blood was hot from that with which he would be satisfied when the Thief was detected after a considerable interval; and to this calculation the legal scale of penalties was adjusted. The principle is precisely the same as that followed in the Anglo-Saxon and other Germanic codes, when they suffer a thief chased down and caught with the booty to be hanged or decapitated on the spot, while they exact the full penalties of homicide from anybody who kills him after the pursuit has been intermitted. These archaic distinctions bring home to us very forcibly the distance of a refined from a rude jurisprudence. The modern administrator of justice has confessedly one of the hardest tasks before him when he undertakes to discriminate between the degrees of criminality which belong to offences falling within the same technical description. It is always easy to say that a man is guilty of manslaughter, larceny, or bigamy, but it is often most difficult to pronounce what extent of moral guilt he has incurred, and consequently what measure of punishment he has deserved. There is hardly any perplexity in casuistry, or in the analysis of motive, which we may not be called upon to confront, if we attempt to settle such a point with precision; and accordingly the law of our day shows an increasing tendency to abstain as much as possible from laying down positive rules on the subject. In France, the jury is left to decide whether the offence which it finds committed has been attended by extenuating circumstances; in England, a nearly unbounded latitude in the selection of punishments is now allowed to the judge; while all States have in reserve an ultimate remedy for the miscarriages of law in the Prerogative of Pardon, universally lodged with the Chief Magistrate. It is curious to observe how little the men of primitive times were troubled with these scruples, how completely they were persuaded that the impulses of the injured person were the proper measure of the vengeance he was entitled to exact, and how literally they imitated the probable rise and fall of his passions in fixing their scale of punishment. I wish it could be said that their method of legislation is quite extinct. There are, however, several modern systems of law which, in cases of graver wrong, admit the fact of the wrong-doer having been taken in the act to be pleaded in justification of inordinate punishment inflicted on him by the sufferer--an indulgence which, though superficially regarded it may seem intelligible, is based, as it seems to me, on a very low morality. Nothing, I have said, can be simpler than the considerations which ultimately led ancient societies to the formation of a true criminal jurisprudence. The State conceived itself to be wronged, and the Popular Assembly struck straight at the offender with the same movement which accompanied its legislative action. It is further true of the ancient world--though not precisely of the modern, as I shall have occasion to point out--that the earliest criminal tribunals were merely subdivisions, or committees, of the legislature. This, at all events, is the conclusion pointed at by the legal history of the two great states of antiquity, with tolerable clearness in one case, and with absolute distinctness in the other. The primitive penal law of Athens entrusted the castigation of offences partly to the Archons, who seem to have punished them as _torts_, and partly to the Senate of Areopagus, which punished them as _sins_. Both jurisdictions were substantially transferred in the end to the Heliæa, the High Court of Popular Justice, and the functions of the Archons and of the Areopagus became either merely ministerial or quite insignificant. But "Heliæa" is only an old word for Assembly; the Heliæa of classical times was simply the Popular Assembly convened for judicial purposes, and the famous Dikasteries of Athens were only its subdivisions or panels. The corresponding changes which occurred at Rome are still more easily interpreted, because the Romans confined their experiments to the penal law, and did not, like the Athenians, construct popular courts with a civil as well as a criminal jurisdiction. The history of Roman criminal jurisprudence begins with the old Judicia Populi, at which the Kings are said to have presided. These were simply solemn trials of great offenders under legislative forms. It seems, however, that from an early period the Comitia had occasionally delegated its criminal jurisdiction to a Quæstio or Commission, which bore much the same relation to the Assembly as a Committee of the House of Commons bears to the House itself, except that the Roman Commissioners or Quæstores did not merely _report_ to the Comitia, but exercised all powers which that body was itself in the habit of exercising, even to the passing sentence on the Accused. A Quæstio of this sort was only appointed to try a particular offender, but there was nothing to prevent two or three Quæstiones sitting at the same time; and it is probable that several of them were appointed simultaneously, when several grave cases of wrong to the community had occurred together. There are also indications that now and then these Quæstiones approached the character of our _Standing_ Committees, in that they were appointed periodically, and without waiting for occasion to arise in the commission of some serious crime. The old Quæstores Parricidii, who are mentioned in connection with transactions of very ancient date, as being deputed to try (or, as some take it, to search out and try) all cases of parricide and murder, seem to have been appointed regularly every year; and the Duumviri Perduellionis, or Commission of Two for trial of violent injury to the Commonwealth, are also believed by most writers to have been named periodically. The delegations of power to these latter functionaries bring us some way forwards. Instead of being appointed _when and as_ state-offences were committed, they had a general, though a temporary jurisdiction over such as _might_ be perpetrated. Our proximity to a regular criminal jurisprudence is also indicated by the general terms "Parricidium" and "Perduellio" which mark the approach to something like a classification of crimes. The true criminal law did not however come into existence till the year B.C. 149, when L. Calpurnius Piso carried the statute known as the Lex Calpurnia de Repetundis. The law applied to cases Repetundarum Pecuniarum, that is, claims by Provincials to recover monies improperly received by a Governor-General, but the great and permanent importance of this statute arose from its establishing the first Quæstio Perpetua. A Quæstio Perpetua was a _Permanent_ Commission as opposed to those which were occasional and to those which were temporary. It was a regular criminal tribunal whose existence dated from the passing of the statute creating it and continued till another statute should pass abolishing it. Its members were not specially nominated, as were the members of the older Quæstiones, but provision was made in the law constituting it for selecting from particular classes the judges who were to officiate, and for renewing them in conformity with definite rules. The offences of which it took cognisance were also expressly named and defined in this statute, and the new Quæstio had authority to try and sentence all persons in future whose acts should fall under the definitions of crime supplied by the law. It was therefore a regular criminal judicature, administering a true criminal jurisprudence. The primitive history of criminal law divides itself therefore into four stages. Understanding that the conception of _Crime_, as distinguished from that of _Wrong_ or _Tort_ and from that of _Sin_, involves the idea of injury to the State or collective community, we first find that the commonwealth, in literal conformity with the conception, itself interposed directly, and by isolated acts, to avenge itself on the author of the evil which it had suffered. This is the point from which we start; each indictment is now a bill of pains and penalties, a special law naming the criminal and prescribing his punishment. A _second_ step is accomplished, when the multiplicity of crimes compels the legislature to delegate its powers to particular Quæstiones or Commissions, each of which is deputed to investigate a particular accusation, and if it be proved, to punish the particular offender. Yet _another_ movement is made when the legislature, instead of waiting for the alleged commission of a crime as the occasion of appointing a Quæstio, periodically nominates Commissioners like the Quæstores Parricidii and the Duumviri Perduellionis, on the chance of certain classes of crimes being committed, and in the expectation that they _will_ be perpetrated. The _last_ stage is reached when the Quæstiones from being periodical or occasional become permanent Benches or Chambers--when the judges, instead of being named in the particular law nominating the Commission, are directed to be chosen through all future time in a particular way and from a particular class--and when certain acts are described in general language and declared to be crimes, to be visited, in the event of their perpetration, with specified penalties appropriated to each description. If the Quæstiones Perpetuæ had had a longer history, they would doubtless have come to be regarded as a distinct institution, and their relation to the Comitia would have seemed no closer than the connection of our own Courts of Law with the Sovereign, who is theoretically the fountain of justice. But the Imperial despotism destroyed them before their origin had been completely forgotten, and, so long as they lasted, these Permanent Commissions were looked upon by the Romans as the mere depositaries of a delegated power. The cognisance of crimes was considered a natural attribute of the legislature, and the mind of the citizen never ceased to be carried back from the Quæstiones, to the Comitia which had deputed them to put into exercise some of its own inalienable functions. The view which regarded the Quæstiones, even when they became permanent, as mere Committees of the Popular Assembly--as bodies which only ministered to a higher authority--had some important legal consequences which left their mark on the criminal law to the very latest period. One immediate result was that the Comitia continued to exercise criminal jurisdiction by way of bill of pains and penalties, long after the Quæstiones had been established. Though the legislature had consented to delegate its powers for the sake of convenience to bodies external to itself, it did not follow that it surrendered them. The Comitia and the Quæstiones went on trying and punishing offenders side by side; and any unusual outburst of popular indignation was sure, until the extinction of the Republic, to call down upon its object an indictment before the Assembly of the Tribes. One of the most remarkable peculiarities of the institutions of the Republic is also traceable to this dependance of the Quæstiones on the Comitia. The disappearance of the punishment of Death from the penal system of Republican Rome used to be a very favourite topic with the writers of the last century, who were perpetually using it to point some theory of the Roman character or of modern social economy. The reason which can be confidently assigned for it stamps it as purely fortuitous. Of the three forms which the Roman legislature successively assumed, one, it is well known--the Comitia Centuriata--was exclusively taken to represent the State as embodied for military operations. The Assembly of the Centuries, therefore, had all powers which may be supposed to be properly lodged with a General commanding an army, and, among them, it had authority to subject all offenders to the same correction to which a soldier rendered himself liable by breaches of discipline. The Comitia Centuriata could therefore inflict capital punishment. Not so, however, the Comitia Curiata or Comitia Tributa. They were fettered on this point by the sacredness with which the person of a Roman citizen, inside the walls of the city, was invested by religion and law; and, with respect to the last of them, the Comitia Tributa, we know for certain that it became a fixed principle that the Assembly of the Tribes could at most impose a fine. So long as criminal jurisdiction was confined to the legislature, and so long as the assemblies of the centuries and of the Tribes continued to exercise co-ordinate powers, it was easy to prefer indictments for graver crimes before the legislative body which dispensed the heavier penalties; but then it happened that the more democratic assembly, that of the Tribes, almost entirely superseded the others, and became the ordinary legislature of the later Republic. Now the decline of the Republic was exactly the period during which the Quæstiones Perpetuæ were established, so that the statutes creating them were all passed by a legislative assembly which itself could not, at its ordinary sittings, punish a criminal with death. It followed that the Permanent Judicial Commissions, holding a delegated authority, were circumscribed in their attributes and capacities by the limits of the powers residing with the body which deputed them. They could do nothing which the Assembly of the Tribes could not have done; and, as the Assembly could not sentence to death, the Quæstiones were equally incompetent to award capital punishment. The anomaly thus resulting was not viewed in ancient times with anything like the favour which it has attracted among the moderns, and indeed, while it is questionable whether the Roman character was at all the better for it, it is certain that the Roman Constitution was a great deal the worse. Like every other institution which has accompanied the human race down the current of its history, the punishment of death is a necessity of society in certain stages of the civilising process. There is a time when the attempt to dispense with it baulks both of the two great instincts which lie at the root of all penal law. Without it, the community neither feels that it is sufficiently revenged on the criminal, nor thinks that the example of his punishment is adequate to deter others from imitating him. The incompetence of the Roman Tribunals to pass sentence of death led distinctly and directly to those frightful Revolutionary intervals, known as the Proscriptions, during which all law was formally suspended simply because party violence could find no other avenue to the vengeance for which it was thirsting. No cause contributed so powerfully to the decay of political capacity in the Roman people as this periodical abeyance of the laws; and, when it had once been resorted to, we need not hesitate to assert that the ruin of Roman liberty became merely a question of time. If the practice of the Tribunals had afforded an adequate vent for popular passion, the forms of judicial procedure would no doubt have been as flagrantly perverted as with us in the reigns of the later Stuarts, but national character would not have suffered as deeply as it did, nor would the stability of Roman institutions have been as seriously enfeebled. I will mention two more singularities of the Roman Criminal System which were produced by the same theory of judicial authority. They are, the extreme multiplicity of the Roman criminal tribunals, and the capricious and anomalous classification of crimes which characterised Roman penal jurisprudence throughout its entire history. Every _Quæstio_, it has been said, whether Perpetual or otherwise, had its origin in a distinct statute. From the law which created it, it derived its authority; it rigorously observed the limits which its charter prescribed to it, and touched no form of criminality which that charter did not expressly define. As then the statutes which constituted the various Quæstiones were all called forth by particular emergencies, each of them being in fact passed to punish a class of acts which the circumstances of the time rendered particularly odious or particularly dangerous, these enactments made not the slightest reference to each other, and were connected by no common principle. Twenty or thirty different criminal laws were in existence together, with exactly the same number of Quæstiones to administer them; nor was any attempt made during the Republic to fuse these distinct judicial bodies into one, or to give symmetry to the provisions of the statutes which appointed them and defined their duties. The state of the Roman criminal jurisdiction at this period, exhibited some resemblances to the administration of civil remedies in England at the time when the English Courts of Common Law had not as yet introduced those fictitious averments into their writs which enabled them to trespass on each other's peculiar province. Like the Quæstiones, the Courts of Queen's Bench, Common Pleas, and Exchequer were all theoretical emanations from a higher authority, and each entertained a special class of cases supposed to be committed to it by the fountain of its jurisdiction; but then the Roman Quæstiones were many more than three in number, and it was infinitely less easy to discriminate the acts which fell under the cognisance of each Quæstio, than to distinguish between the provinces of the three Courts in Westminster Hall. The difficulty of drawing exact lines between the spheres of the different Quæstiones made the multiplicity of Roman tribunals something more than a mere inconvenience; for we read with astonishment that when it was not immediately clear under what general description a man's alleged offences ranged themselves, he might be indicted at once or successively before several different Commissions, on the chance of some one of them declaring itself competent to convict him; and, although conviction by one Quæstio ousted the jurisdiction of the rest, acquittal by one of them could not be pleaded to an accusation before another. This was directly contrary to the rule of the Roman civil law; and we may be sure that a people so sensitive as the Romans to anomalies (or, as their significant phrase was, to _inelegancies_) in jurisprudence, would not long have tolerated it, had not the melancholy history of the Quæstiones caused them to be regarded much more as temporary weapons in the hands of factions than as permanent institutions for the correction of crime. The Emperors soon abolished this multiplicity and conflict of jurisdiction; but it is remarkable that they did not remove another singularity of the criminal law which stands in close connection with the number of the Courts. The classifications of crimes which are contained even in the Corpus Juris of Justinian are remarkably capricious. Each Quæstio had, in fact, confined itself to the crimes committed to its cognisance by its charter. These crimes, however, were only classed together in the original statute because they happened to call simultaneously for castigation at the moment of passing it. They had not therefore anything necessarily in common; but the fact of their constituting the particular subject-matter of trials before a particular Quæstio impressed itself naturally on the public attention, and so inveterate did the association become between the offences mentioned in the same statute that, even when formal attempts were made by Sylla and by the Emperor Augustus to consolidate the Roman criminal law, the legislator preserved the old grouping. The Statutes of Sylla and Augustus were the foundation of the penal jurisprudence of the Empire, and nothing can be more extraordinary than some of the classifications which they bequeathed to it. I need only give a single example in the fact that _perjury_ was always classed with _cutting and wounding_ and with _poisoning_, no doubt because a law of Sylla, the Lex Cornelia de Sicariis et Veneficis, had given jurisdiction over all these three forms of crime to the same Permanent Commission. It seems too that this capricious grouping of crimes affected the vernacular speech of the Romans. People naturally fell into the habit of designating all the offences enumerated in one law by the first name on the list, which doubtless gave its style to the Law Court deputed to try them all. All the offences tried by the Quæstio De Adulteriis would thus be called Adultery. I have dwelt on the history and characteristics of the Roman Quæstiones because the formation of a criminal jurisprudence is nowhere else so instructively exemplified. The last Quæstiones were added by the Emperor Augustus, and from that time the Romans may be said to have had a tolerably complete criminal law. Concurrently with its growth, the analogous process had gone on, which I have called the conversion of Wrongs into Crimes, for, though the Roman legislature did not extinguish the civil remedy for the more heinous offences, it offered the sufferer a redress which he was sure to prefer. Still, even after Augustus had completed his legislation, several offences continued to be regarded as Wrongs, which modern societies look upon exclusively as Crimes; nor did they become criminally punishable till some late but uncertain date, at which the law began to take notice of a new description of offences called in the Digest _crimina extraordinaria_. These were doubtless a class of acts which the theory of Roman jurisprudence treated merely as wrongs; but the growing sense of the majesty of society revolted from their entailing nothing worse on their perpetrator than the payment of money damages, and accordingly the injured person seems to have been permitted, if he pleased, to pursue them as crimes _extra ordinem_, that is by a mode of redress departing in some respect or other from the ordinary procedure. From the period at which these _crimina extraordinaria_ were first recognised, the list of crimes in the Roman State must have been as long as in any community of the modern world. It is unnecessary to describe with any minuteness the mode of administering criminal justice under the Roman Empire, but it is to be noted that both its theory and practice have had powerful effect on modern society. The Emperors did not immediately abolish the Quæstiones, and at first they committed an extensive criminal jurisdiction to the Senate, in which, however servile it might show itself in fact, the Emperor was no more nominally than a Senator like the rest. But some sort of collateral criminal jurisdiction had been claimed by the Prince from the first; and this, as recollections of the free commonwealth decayed, tended steadily to gain at the expense of the old tribunals. Gradually the punishment of crimes was transferred to magistrates directly nominated by the Emperor and the privileges of the Senate passed to the Imperial Privy Council, which also became a Court of ultimate criminal appeal. Under these influences the doctrine, familiar to the moderns, insensibly shaped itself that the Sovereign is the fountain of all Justice and the depositary of all Grace. It was not so much the fruit of increasing adulation and servility as of the centralisation of the Empire which had by this time perfected itself. The theory of criminal justice had, in fact, worked round almost to the point from which it started. It had begun in the belief that it was the business of the collective community to avenge its own wrongs by its own hand; and it ended in the doctrine that the chastisement of crimes belonged in an especial manner to the Sovereign as representative and mandatary of his people. The new view differed from the old one chiefly in the air of awfulness and majesty which the guardianship of justice appeared to throw around the person of the Sovereign. This later Roman view of the Sovereign's relation to justice certainly assisted in saving modern societies from the necessity of travelling through the series of changes which I have illustrated by the history of the Quæstiones. In the primitive law of almost all the races which have peopled Western Europe there are vestiges of the archaic notion that the punishment of crimes belongs to the general assembly of freemen; and there are some States--Scotland is said to be one of them--in which the parentage of the existing judicature can be traced up to a Committee of the legislative body. But the development of the criminal law was universally hastened by two causes, the memory of the Roman Empire and the influence of the Church. On the one hand traditions of the majesty of the Cæsars, perpetuated by the temporary ascendency of the House of Charlemagne, were surrounding Sovereigns with a prestige which a mere barbarous chieftain could never otherwise have acquired and were communicating to the pettiest feudal potentate the character of guardian of society and representative of the State. On the other hand, the Church, in its anxiety to put a curb on sanguinary ferocity, sought about for authority to punish the graver misdeeds, and found it in those passages of Scripture which speak with approval of the powers of punishment committed to the civil magistrate. The New Testament was appealed to as proving that secular rulers exist for the terror of evildoers; the Old Testament, as laying down that "Whoso sheddeth man's blood, by man shall his blood be shed." There can be no doubt, I imagine, that modern ideas on the subject of crime are based upon two assumptions contended for by the Church in the Dark Ages--first, that each feudal ruler, in his degree, might be assimilated to the Roman Magistrates spoken of by Saint Paul; and next, that the offences which he was to chastise were those selected for prohibition in the Mosaic Commandments, or rather such of them as the Church did not reserve to her own cognisance. Heresy (supposed to be included in the First and Second Commandments), Adultery, and Perjury were ecclesiastical offences, and the Church only admitted the co-operation of the secular arm for the purpose of inflicting severer punishment in cases of extraordinary aggravation. At the same time, she taught that murder and robbery with their various modifications were under the jurisdiction of civil rulers, not as an accident of their position but by the express ordinance of God. There is a passage in the writings of King Alfred (Kemble, ii. 209) which brings out into remarkable clearness the struggle of the various ideas that prevailed in his day as to the origin of criminal jurisdiction. It will be seen that Alfred attributes it partly to the authority of the Church and partly to that of the Witan, while he expressly claims for treason against the lord the same immunity from ordinary rules which the Roman Law of Majestas had assigned to treason against the Cæsar. "After this it happened," he writes, "that many nations received the faith of Christ, and there were many synods assembled throughout the earth, and among the English race also after they had received the faith of Christ, both of holy bishops and of their exalted Witan. They then ordained that, out of that mercy which Christ had taught, secular lords, with their leave, might without sin take for every misdeed the _bot_ in money which they ordained; except in cases of treason against a lord, to which they dared not assign any mercy because Almighty God adjudged none to them that despised Him, nor did Christ adjudge any to them which sold Him to death; and He commanded that a lord should be loved like Himself." INDEX Austin, 69, 171; _Province of Jurisprudence Determined_, 4 Ayala, 64 Bentham, 18, 46, 54, 70, 147; _Fragment on Government_, 4 Blackstone, 67, 89, 150, 152 _Cambridge Essays_, 1856, Maine, 205, 212 Capture in war, 145, 146 Casuistry, 205, 206, 207 Charlemagne, 62, 233 Codes, Attic of Solon, 9; era of, 8; first introduced into the West, 10; Hindoo Law of Menu, 10-12; Justinian, 25, 27; Napoléon, 104; Roman, superiority over Hindoo, 10-12; Twelve Tables of Rome, 1, 8, 9, 12, 20 Contract, Austin on, 190; Bentham on, 190; Imperative Law, 182; judicial and popular error, 181; Law of Nations, 181, 196, 197; literal or written, 194; origin lies in the family, 99; pact or convention, 184, 185; real, 195; Roman, classification, 191, 192; consensual, 195-198; Domestic System, 194; Nexum, definition of, 185-189; Rousseau, 181; sale, 188 Conveyances and contracts, confusion between, 185-187; and mancipation, 185 _Corpus juris civilis_, 26 Creditors, powers of, in ancient system, 189 Crimes and wrongs, confusion between, 231, 232; distinction between primitive and modern, 217, 218; Kemble in _Anglo-Saxons_, 218 Criminal Law, Athens, 224; degree of guilt, 223; four stages of primitive history, 226; influence of Church, 233; primitive religious code, 218, 219; Roman, crime against State, 219; B.C. 149, 225; origin of, 225; sentence of death, 227-229; theft, 222, 223; tribunals, 228-230; under emperors, 230-232 Customary Law, epoch of, 7, 8; Hindoo, 4 Dangers of Law, rigidity, too rapid development, 44, 45 Debtors, severity of ancient system, 189 Equity, 172; early history of, 15; Lord Eldon on, 40; English, 40, 41; meaning of, 17; origin, 34, 35; Roman compared with English, 40-42 Feudalism, explanation of, 214 Gaius, 90, 174, 220-223 Grote, decline of kingly rule, 6; _History of Greece_, 3, 5; law administered by aristocracies, 7 Grotius, Hugo, 56, 58, 59, 64; _De Jure Belli et Pacis_, 205 Homer, earliest notions of law derived from, 2, 3; Themis, Themistes, 2-5 Indian (Hindoo) Law, _see_ separate headings Codes, Customary, Primogeniture, Property, Testamentary Law, Village communities Institutional Treatise (Justinian), 27 International Law, 64; and occupancy, 145 Law of Nations (Jus Gentium), incorporation with Roman Law, 36, 37; origin of, 27-31 Legal fictions, benefit of, 77; examples in English Law, 18; in Roman Law, 15, 16; meaning, useful purpose of, 15, 16 Legis Actio Sacramenti, Gaius on, 220, 221 Legislation, the agent of legal improvement, 17; differing from equity, legal fictions, 17, 18 _Lettres Persanes_, 183 Maine, _Cambridge Essays_, 1856, 205, 212 Mancipation, 120, 121, 163-169, 185 Menu, Laws of, 10-12 Montesquieu, 49, 51, 183 Natural Law (Law of Nature), American Law and, 56; antagonistic to historical method, 53; confusing past with present, 43; equality of man, 54-56; equality of sex, 90; feudalism, 62, 65; French history, 47, 48, 50, 53; French Law, 56; Greek interpretation of, 44; Grotian system, 56, 58, 59, 64-66; incorporated with Roman Law, 36, 37; influence of Stoics, 32, 33; Modern International Law, 56-60; most critical period, 50; modern society, 54; occupancy, 145-147, 153; origin of, 31, 32; private property, 164; Rousseau on, 51; slavery, 95; territorial sovereignty, 60-63; Testamentary Law, 103, 104 Occupancy, 144, 145; in Roman Law, 145 Pascal, _Provincial Letters_, 207 Prescriptions, 167, 168; and Canon Law, 168 Primogeniture, Celtic customs, 141, 142; feudal system, 135-137; Hindoo Law, 134, 137, 141; Mahometan Law, 142; Roman Law, 133, 134 Property, natural modes of acquiring, 144 Property Law, ancient Germanic, 165, ancient Sclavonic, 165; descent in Middle Ages, 132; Indian Law, 165; origin of, 145; possession, 170, 172; private, ancient forms of transfer, 160, 162-164; Roman, 60, 66, 166; Cessio in Jure, 170; Edictum Perpetuum, 37; Emphyteusis, 175-178; Gaius on, 174; Justinian, 174; law of persons and things, 152; mancipation, 163, 169; possessory interdicts, 171; Praetor's interdict, 172; Res Mancipi, 160-164, 173; Res Nec Mancipi, 164; system of farming, 176; usucapion, 167, 169, 173 Roman Law, _see_ separate headings Contracts, Criminal, Property, Occupancy, Testamentary; Decemviral Law, 20; definition of inheritance, 107; end of period of jurists, 40; influence of Praetor, 38; intestacy, 127-130; law of inheritance, 111; Leges Corneliae, 24, 25; Leges Juliae, 25; marriage, 91; obligation in, 190, 191, 195, 197; Pandects of Justinian, 39; powers of Praetor, 37, 39; Praetorian edict, 24, 25; Responsa Prudentum, 20, 21, 24; reverence of Romans for, 22; Statute Law, 25; Twelve Tables, 1, 8, 9, 12, 20 Rousseau, on Social Contract, 181 Savigny, 171; on occupancy, 150 Slavery, American opinions of, 96; influence of Law of Nature upon, 97; Roman system, 95-97 Status, definition of, 100 Testamentary Law, adoption and testation, 114, 115; Church's influence upon, 102; corporation, aggregate and sole, 110; Hindoo Law, 113, 114; Hindoo compared with Roman, 113; Law of Nature, 103, 104; Roman Law, 111, 112, 117-123; mancipation, 120, 123; Praetorian testament, 123-125; Twelve Tables, 112, 119, 122; Roman family, agnatic and cognatic relationship, 86-89; duties and rights of father, 85; effects of Christianity, 92; family, the basis of State, 75, 76; kinship, 86, 88; modification of parental privileges, 84; origin of contract in, 99; origin of law of persons, 89; parental powers, 80-82, 88 Theology, and Jurisprudence, 208-210; moral, 204, 205 Theories, based on Roman doctrine, Bentham, 69; Blackstone, 67; differing from Roman Glossators, annotations of, 67; Grotius, 67; Jurisprudence, dissatisfaction with, 70; Locke, 67; Montesquieu, 68; patriarchal, 72-75 Universal succession, 106; in Roman Law, 106, 107 "Universatis Juris," 105 Village communities, Indian, 153, 154, 156, 158; Indian, compared with Roman gens, 155; Indian, Elphinstone, _History of India_, 155, 156; Russian 157 Women, ancient rules defeated by Natural Law, 90; Canon Law, 93; English Common Law, 93, 94; Roman family, 90, 91; gradual independence under Roman Law, 91, 92; Roman, perpetual tutelage of, 90; under Roman Law, 89, 90; subordination to husband in Middle Ages, 92; subordination of Roman to relations, 90 MADE AT THE TEMPLE PRESS LETCHWORTH IN GREAT BRITAIN 
27526	----	Text harvesting and reformatting by Michael S. Hart and Gregory B. Newby. Copyright (C) 2008 by James Boyle. The Public Domain Enclosing the Commons of the Mind by James Boyle In this enlightening book James Boyle describes what he calls the range wars of the information age--today's heated battles over intellectual property. Boyle argues that just as every informed citizen needs to know at least something about the environment or civil rights, every citizen should also understand intellectual property law. Why? Because intellectual property rights mark out the ground rules of the information society, and today's policies are unbalanced, unsupported by evidence, and often detrimental to cultural access, free speech, digital creativity, and scientific innovation. Boyle identifies as a major problem the widespread failure to understand the importance of the public domain--the realm of material that everyone is free to use and share without permission or fee. The public domain is as vital to innovation and culture as the realm of material protected by intellectual property rights, he asserts, and he calls for a movement akin to the environmental movement to preserve it. With a clear analysis of issues ranging from Jefferson's philosophy of innovation to musical sampling, synthetic biology and Internet file sharing, this timely book brings a positive new perspective to important cultural and legal debates. If we continue to enclose the "commons of the mind," Boyle argues, we will all be the poorer. Professor James Boyle's website: www.thepublicdomain.org James Boyle is William Neal Reynolds Professor of Law and co- founder of the Center for the Study of the Public Domain Duke Law School. He joined the faculty in July 2000. He has also taught at American University, Yale, Harvard, and the University of Pennsylvania Law School. He is the author of Shamans, Software and Spleens: Law and Construction of the Information Society and The Shakespeare Chronicles, a novel about the search for the true author of Shakespeare's works. He co-authored Bound By Law, (CSPD 2006) an educational comic book on fair use in documentary film, and is the editor of Critical Legal Studies (Dartmouth/NYU Press 1994), and Collected Papers on the Public Domain (Duke: L&CP 2003). In 2003 he won the World Technology Award for Law for his work on the "intellectual ecology" of the public domain, and on the new "enclosure movement" that threatens it; (a disappointing amount of which was foretold in his 1996 New York Times article on the subject.) Professor Boyle has written on legal and social theory, on issues ranging from political correctness to constitutional interpretation and from the social contract to the authorship debate in law and literature. For the last ten years, his work has focused on intellectual property. His essays include The Second Enclosure Movement, a study of the economic rhetoric of price discrimination in digital commerce, and a Manifesto on WIPO. His shorter pieces include Missing the Point on Microsoft, a speech to the Federalist Society called Conservatives and Intellectual Property, and numerous newspaper articles on law, technology and culture. His book reviews on social theory and the environment, the naturalistic fallacy in environmentalism, and on competing approaches to copyright have appeared in the Times Literary Supplement. He currently writes as an online columnist for the Financial Times' New Economy Policy Forum. Professor Boyle teaches Intellectual Property, the Constitution in Cyberspace, Law and Literature, Jurisprudence and Torts. He is a Board Member of Creative Commons which is working to facilitate the free availability of art, scholarship, and cultural materials by developing innovative, machine-readable licenses that individuals and institutions can attach to their work, and of Science Commons, which aims to expand the Creative Commons mission into the realm of scientific and technical data. He also leads the steering committee which is setting up the Learning Commons, a division of Creative Commons aimed at facilitating access to open education resources. He is a member of the academic advisory boards of the Electronic Privacy and Information Center, the Connexions open-source courseware project, and of Public Knowledge. In 2006 he received the Duke Bar Association Distinguished Teaching Award. Yale University Press Creative Commons License This work is licensed under a Creative Commons Attribution- Noncommercial-Share Alike 3.0 Unported License. This site uses CommentPress (version 1.4.1), a project of the Institute for the Future of the Book The Public Domain Enclosing the Commons of the Mind by James Boyle Preface: Comprised of at Least Jelly? 1 Each person has a different breaking point. For one of my students it was United States Patent number 6,004,596 for a "Sealed Crustless Sandwich." In the curiously mangled form of English that patent law produces, it was described this way: 2 A sealed crustless sandwich for providing a convenient sandwich without an outer crust which can be stored for long periods of time without a central filling from leaking outwardly. The sandwich includes a lower bread portion, an upper bread portion, an upper filling and a lower filling between the lower and upper bread portions, a center filling sealed between the upper and lower fillings, and a crimped edge along an outer perimeter of the bread portions for sealing the fillings there between. The upper and lower fillings are preferably comprised of peanut butter and the center filling is comprised of at least jelly. The center filling is prevented from radiating outwardly into and through the bread portions from the surrounding peanut butter.1 3 "But why does this upset you?" I asked; "you've seen much worse than this." And he had. There are patents on human genes, on auctions, on algorithms.2 The U.S. Olympic Committee has an expansive right akin to a trademark over the word "Olympic" and will not permit gay activists to hold a "Gay Olympic Games." The Supreme Court sees no First Amendment problem with this.3 Margaret Mitchell's estate famously tried to use copyright to prevent Gone With the Wind from being told from a slave's point of view.4 The copyright over the words you are now reading will not expire until seventy years after my death; the men die young in my family, but still you will allow me to hope that this might put it close to the year 2100. Congress periodically considers legislative proposals that would allow the ownership of facts.5 The Digital Millennium Copyright Act gives content providers a whole array of legally protected digital fences to enclose their work.6 In some cases it effectively removes the privilege of fair use. Each day brings some new Internet horror story about the excesses of intellectual property. Some of them are even true. The list goes on and on. (By the end of this book, I hope to have convinced you that this matters.) With all of this going on, this enclosure movement of the mind, this locking up of symbols and themes and facts and genes and ideas (and eventually people), why get excited about the patenting of a peanut butter and jelly sandwich? "I just thought that there were limits," he said; "some things should be sacred." 4 This book is an attempt to tell the story of the battles over intellectual property, the range wars of the information age. I want to convince you that intellectual property is important, that it is something that any informed citizen needs to know a little about, in the same way that any informed citizen needs to know at least something about the environment, or civil rights, or the way the economy works. I will try my best to be fair, to explain the issues and give both sides of the argument. Still, you should know that this is more than mere description. In the pages that follow, I try to show that current intellectual property policy is overwhelmingly and tragically bad in ways that everyone, and not just lawyers or economists, should care about. We are making bad decisions that will have a negative effect on our culture, our kids' schools, and our communications networks; on free speech, medicine, and scientific research. We are wasting some of the promise of the Internet, running the risk of ruining an amazing system of scientific innovation, carving out an intellectual property exemption to the First Amendment. I do not write this as an enemy of intellectual property, a dot-communist ready to end all property rights; in fact, I am a fan. It is precisely because I am a fan that I am so alarmed about the direction we are taking. 5 Still, the message of this book is neither doom nor gloom. None of these decisions is irrevocable. The worst ones can still be avoided altogether, and there are powerful counterweights in both law and culture to the negative trends I describe here. There are lots of reasons for optimism. I will get to most of these later, but one bears mentioning now. Contrary to what everyone has told you, the subject of intellectual property is both accessible and interesting; what people can understand, they can change--or pressure their legislators to change. 6 I stress this point because I want to challenge a kind of willed ignorance. Every news story refers to intellectual property as "arcane," "technical," or "abstruse" in the same way as they referred to former attorney general Alberto Gonzales as "controversial." It is a verbal tic and it serves to reinforce the idea that this is something about which popular debate is impossible. But it is also wrong. The central issues of intellectual property are not technical, abstruse, or arcane. To be sure, the rules of intellectual property law can be as complex as a tax code (though they should not be). But at the heart of intellectual property law are a set of ideas that a ten-year-old can understand perfectly well. (While writing this book, I checked this on a ten-year-old I then happened to have around the house.) You do not need to be a scientist or an economist or a lawyer to understand it. The stuff is also a lot of fun to think about. I live in constant wonder that they pay me to do so. 7 Should you be able to tell the story of Gone With the Wind from a slave's point of view even if the author does not want you to? Should the Dallas Cowboys be able to stop the release of Debbie Does Dallas, a cheesy porno flick, in which the title character brings great dishonor to a uniform similar to that worn by the Dallas Cowboys Cheerleaders? (After all, the audience might end up associating the Dallas Cowboys Cheerleaders with . . . well, commodified sexuality.) 7 8 Should the U.S. Commerce Department be able to patent the genes of a Guyami Indian woman who shows an unusual resistance to leukemia?8 What would it mean to patent someone's genes, anyway? Forbidding scientific research on the gene without the patent holder's consent? Forbidding human reproduction? Can religions secure copyrights over their scriptures? Even the ones they claim to have been dictated by gods or aliens? Even if American copyright law requires "an author," presumably a human one?9 Can they use those copyrights to discipline heretics or critics who insist on quoting the scripture in full? 9 Should anyone own the protocols--the agreed-upon common technical standards--that make the Internet possible? Does reading a Web page count as "copying" it?10 Should that question depend on technical "facts" (for example, how long the page stays in your browser's cache) or should it depend on some choice that we want to make about the extent of the copyright holder's rights? 10 These questions may be hard, because the underlying moral and political and economic issues need to be thought through. They may be weird; alien scriptural dictation might qualify there. They surely aren't uninteresting, although I admit to a certain prejudice on that point. And some of them, like the design of our telecommunications networks, or the patenting of human genes, or the relationship between copyright and free speech, are not merely interesting, they are important. It seems like a bad idea to leave them to a few lawyers and lobbyists simply because you are told they are "technical." 11 So the first goal of the book is to introduce you to intellectual property, to explain why it matters, why it is the legal form of the information age. The second goal is to persuade you that our intellectual property policy is going the wrong way; two roads are diverging and we are on the one that doesn't lead to Rome. 12 The third goal is harder to explain. We have a simple word for, and an intuitive understanding of, the complex reality of "property." Admittedly, lawyers think about property differently from the way lay-people do; this is only one of the strange mental changes that law school brings. But everyone in our society has a richly textured understanding of "mine" and "thine," of rights of exclusion, of division of rights over the same property (for example, between tenant and landlord), of transfer of rights in part or in whole (for example, rental or sale). But what about the opposite of property--property's antonym, property's outside? What is it? Is it just stuff that is not worth owning--abandoned junk? Stuff that is not yet owned--such as a seashell on a public beach, about to be taken home? Or stuff that cannot be owned--a human being, for example? Or stuff that is collectively owned--would that be the radio spectrum or a public park? Or stuff that is owned by no one, such as the deep seabed or the moon? Property's outside, whether it is "the public domain" or "the commons," turns out to be harder to grasp than its inside. To the extent that we think about property's outside, it tends to have a negative connotation; we want to get stuff out of the lost-and-found office and back into circulation as property. We talk of "the tragedy of the commons,"11 meaning that unowned or collectively owned resources will be managed poorly; the common pasture will be overgrazed by the villagers' sheep because no one has an incentive to hold back. 13 When the subject is intellectual property, this gap in our knowledge turns out to be important because our intellectual property system depends on a balance between what is property and what is not. For a set of reasons that I will explain later, "the opposite of property" is a concept that is much more important when we come to the world of ideas, information, expression, and invention. We want a lot of material to be in the public domain, material that can be spread without property rights. "The general rule of law is, that the noblest of human productions--knowledge, truths ascertained, conceptions, and ideas--become, after voluntary communication to others, free as the air to common use."12 Our art, our culture, our science depend on this public domain every bit as much as they depend on intellectual property. The third goal of this book is to explore property's outside, property's various antonyms, and to show how we are undervaluing the public domain and the information commons at the very moment in history when we need them most. Academic articles and clever legal briefs cannot solve this problem alone. 14 Instead, I argue that precisely because we are in the information age, we need a movement--akin to the environmental movement--to preserve the public domain. The explosion of industrial technologies that threatened the environment also taught us to recognize its value. The explosion of information technologies has precipitated an intellectual land grab; it must also teach us about both the existence and the value of the public domain. This enlightenment does not happen by itself. The environmentalists helped us to see the world differently, to see that there was such a thing as "the environment" rather than just my pond, your forest, his canal. We need to do the same thing in the information environment. 15 We have to "invent" the public domain before we can save it. 16 A word about style. I am trying to write about complicated issues, some of which have been neglected by academic scholarship, while others have been catalogued in detail. I want to advance the field, to piece together the story of the second enclosure movement, to tell you something new about the balance between property and its opposite. But I want to do so in a way that is readable. For those in my profession, being readable is a dangerous goal. You have never heard true condescension until you have heard academics pronounce the word "popularizer." They say it as Isadora Duncan might have said "dowdy." To be honest, I share their concern. All too often, clarity is achieved by leaving out the key qualification necessary to the argument, the subtlety of meaning, the inconvenient empirical evidence. 17 My solution is not a terribly satisfactory one. A lot of material has been exiled to endnotes. The endnotes for each chapter also include a short guide to further reading. I have used citations sparingly, but more widely than an author of a popular book normally does, so that the scholarly audience can trace out my reasoning. But the core of the argument is in the text. 18 The second balance I have struggled to hit is that between breadth and depth. The central thesis of the book is that the line between intellectual property and the public domain is important in every area of culture, science, and technology. As a result, it ranges widely in subject matter. Yet readers come with different backgrounds, interests, and bodies of knowledge. As a result, the structure of the book is designed to facilitate self-selection based on interest. The first three chapters and the conclusion provide the theoretical basis. Each chapter builds on those themes, but is also designed to be largely freestanding. The readers who thrill to the idea that there might be constitutional challenges to the regulation of digital speech by copyright law may wallow in those arguments to their hearts' content. Others may quickly grasp the gist and head on for the story of how Ray Charles's voice ended up in a mashup attacking President Bush, or the discussion of genetically engineered bacteria that take photographs and are themselves the subject of intellectual property rights. To those readers who nevertheless conclude that I have failed to balance correctly between precision and clarity, or breadth and depth, I offer my apologies. I fear you may be right. It was not for want of trying. Chapter 1: Why Intellectual Property 1 Imagine yourself starting a society from scratch. Perhaps you fought a revolution, or perhaps you led a party of adventurers into some empty land, conveniently free of indigenous peoples. Now your task is to make the society work. You have a preference for democracy and liberty and you want a vibrant culture: a culture with a little chunk of everything, one that offers hundreds of ways to live and thousands of ideals of beauty. You don't want everything to be high culture; you want beer and skittles and trashy delights as well as brilliant news reporting, avant-garde theater, and shocking sculpture. You can see a role for highbrow, state-supported media or publicly financed artworks, but your initial working assumption is that the final arbiter of culture should be the people who watch, read, and listen to it, and who remake it every day. And even if you are dubious about the way popular choice gets formed, you prefer it to some government funding body or coterie of art mavens. 2 At the same time as you are developing your culture, you want a flourishing economy--and not just in literature or film. You want innovation and invention. You want drugs that cure terrible diseases, and designs for more fuel-efficient stoves, and useful little doodads, like mousetraps, or Post-it notes, or solar- powered backscratchers. To be exact, you want lots of innovation but you do not know exactly what innovation or even what types of innovation you want. 3 Given scarce time and resources, should we try to improve typewriters or render them obsolete with word processors, or develop functional voice recognition software, or just concentrate on making solar-powered backscratchers? Who knew that they needed Post-it notes or surgical stents or specialized rice planters until those things were actually developed? How do you make priorities when the priorities include things you cannot rationally value because you do not have them yet? How do you decide what to fund and when to fund it, what desires to trade off against each other? 4 The society you have founded normally relies on market signals to allocate resources. If a lot of people want petunias for their gardens, and are willing to pay handsomely for them, then some farmer who was formerly growing soybeans or gourds will devote a field to petunias instead. He will compete with the other petunia sellers to sell them to you. Voila! We do not need a state planner to consult the vegetable five-year plan and decree "Petunias for the People!" Instead, the decision about how to deploy society's productive resources is being made "automatically," cybernetically even, by rational individuals responding to price signals. And in a competitive market, you will get your petunias at very close to the cost of growing them and bringing them to market. Consumer desires are satisfied and productive resources are allocated efficiently. It's a tour de force. 5 Of course, there are problems. The market measures the value of a good by whether people have the ability and willingness to pay for it, so the whims of the rich may be more "valuable" than the needs of the destitute. We may spend more on pet psychiatry for the traumatized poodles on East 71st Street than on developing a cure for sleeping sickness, because the emotional wellbeing of the pets of the wealthy is "worth more" than the lives of the tropical world's poor. But for a lot of products, in a lot of areas, the market works--and that is a fact not to be taken for granted. 6 Why not use this mechanism to meet your cultural and innovation needs? If people need Madame Bovary or The New York Times or a new kind of antibiotic, surely the market will provide it? Apparently not. You have brought economists with you into your brave new world--perhaps out of nostalgia, or because a lot of packing got done at the last minute. The economists shake their heads.1 The petunia farmer is selling something that is "a rivalrous good." If I have the petunia, you can't have it. What's more, petunias are "excludable." The farmer only gives you petunias when you pay for them. It is these factors that make the petunia market work. What about Madame Bovary, or the antibiotic, or The New York Times? Well, it depends. If books have to be copied out by hand, then Madame Bovary is just like the petunia. But if thousands of copies of Madame Bovary can be printed on a printing press, or photocopied, or downloaded from www.flaubertsparrot.com, then the book becomes something that is nonrival; once Madame Bovary is written, it can satisfy many readers with little additional effort or cost. Indeed, depending on the technologies of reproduction, it may be very hard to exclude people from Madame Bovary. 7 Imagine a Napster for French literature; everyone could have Madame Bovary and only the first purchaser would have to pay for it. Because of these "nonrival" and "nonexcludable" characteristics, Flaubert's publisher would have a more difficult time coming up with a business plan than the petunia farmer. The same is true for the drug company that invests millions in screening and testing various drug candidates and ends up with a new antibiotic that is both safe and effective, but which can be copied for pennies. Who will invest the money, knowing that any product can be undercut by copies that don't have to pay the research costs? How are authors and publishers and drug manufacturers to make money? And if they can't make money, how are we to induce people to be authors or to be the investors who put money into the publishing or pharmaceutical business? 8 It is important to pause at this point and inquire how closely reality hews to the economic story of "nonexcludable" and "nonrival" public goods. It turns out that the reality is much more complex. First, there may be motivations for creation that do not depend on the market mechanism. People sometimes create because they seek fame, or out of altruism, or because an inherent creative force will not let them do otherwise. Where those motivations operate, we may not need a financial incentive to create. Thus the "problem" of cheap copying in fact becomes a virtue. Second, the same technologies that make copying cheaper may also lower the costs of advertising and distribution, cutting down on the need to finance expensive distribution chains. Third, even in situations that do require incentives for creativity and for distribution, it may be that being "first to market" with an innovation provides the innovator with enough of a head start on the competition to support the innovation.2 Fourth, while some aspects of the innovation may truly be nonrival, other aspects may not. Software is nonrival and hard to exclude people from, but it is easy to exclude your customers from the help line or technical support. The CD may be copied cheaply; the concert is easy to police. The innovator may even be advantaged by being able to trade on the likely effects of her innovation. If I know I have developed the digital camera, I may sell the conventional film company's shares short. Guarantees of authenticity, quality, and ease of use may attract purchasers even if unauthorized copying is theoretically cheaper. 9 In other words, the economic model of pure public goods will track our reality well in some areas and poorly in others--and the argument for state intervention to fix the problems of public goods will therefore wax and wane correspondingly. In the case of drug patents, for example, it is very strong. For lots of low-level business innovation, however, we believe that adequate incentives are provided by being first to market, and so we see no need to give monopoly power to the first business to come up with a new business plan--at least we did not until some disastrous patent law decisions discussed later in this book. Nor does a lowering of copying costs hurt every industry equally. Digital copies of music were a threat to the traditional music business, but digital copies of books? I am skeptical. This book will be freely and legally available online to all who wish to copy it. Both the publisher and I believe that this will increase rather than decrease sales. 10 Ignore these inconvenient complicating factors for a moment. Assume that wherever things are cheap to copy and hard to exclude others from, we have a potential collapse of the market. That book, that drug, that film will simply not be produced in the first place--unless the state steps in somehow to change the equation. This is the standard argument for intellectual property rights. And a very good argument it is. In order to solve the potentially "marketbreaking" problem of goods that are expensive to make and cheap to copy, we will use what my colleague Jerry Reichman calls the "market-making" device of intellectual property. The state will create a right to exclude others from the invention or the expression and confer it on the inventor or the author. The most familiar rights of this kind are copyrights and patents. (Trademarks present some special issues, which I will address a little later.) Having been given the ability to forbid people to copy your invention or your novel, you can make them pay for the privilege of getting access. You have been put back in the position of the petunia farmer. 11 Pause for a moment and think of what a brilliant social innovation this is--at least potentially. Focus not on the incentives alone, but on the decentralization of information processing and decision making that a market offers. Instead of having ministries of art that define the appropriate culture to be produced this year, or turning the entire path of national innovation policy over to the government, intellectual property decentralizes the choices about what creative and innovative paths to pursue while retaining the possibility that people will actually get paid for their innovation and creative expression. 1 12 The promise of copyright is this: if you are a radical environmentalist who wants to alert the world to the danger posed by climate change, or a passionate advocate of homeschooling, or a cartoonist with a uniquely twisted view of life, or a musician who can make a slack key guitar do very strange things, or a person who likes to take amazingly saccharine pictures of puppies and put them on greeting cards--maybe you can quit your day job and actually make a living from your expressive powers. If the market works, if the middlemen and distributors are smart enough, competitive enough, and willing to take a chance on expression that competes with their in-house talent, if you can make it somehow into the public consciousness, then you can be paid for allowing the world to copy, distribute, and perform your stuff. You risk your time and your effort and your passion and, if the market likes it, you will be rewarded. (At the very least, the giant producers of culture will be able to assemble vast teams of animators and musicians and software gurus and meld their labors into a videotape that will successfully anesthetize your children for two hours; no small accomplishment, let me tell you, and one for which people will certainly pay.) 13 More importantly, if the system works, the choices about the content of our culture--the mix of earnest essays and saccharine greeting cards and scantily clad singers and poetic renditions of Norse myths--will be decentralized to the people who actually read, or listen to, or watch the stuff. This is our cultural policy and it is driven, in part, by copyright. 14 The promise of patent is this: we have a multitude of human needs and a multitude of individuals and firms who might be able to satisfy those needs through innovation. Patent law offers us a decentralized system that, in principle, will allow individuals and firms to pick the problem that they wish to solve. Inventors and entrepreneurs can risk their time and their capital and, if they produce a solution that finds favor in the marketplace, will be able to reap the return provided by the legal right to exclude--by the legal monopoly over the resulting invention. The market hints at some unmet need--for drugs that might reduce obesity or cure multiple sclerosis, or for Post-it notes or windshield wipers that come on intermittently in light rain--and the innovator and her investors make a bet that they can meet that need. (Not all of these technologies will be patentable--only those that are novel and "nonobvious," something that goes beyond what any skilled person in the relevant field would have done.) 15 In return for the legal monopoly, patent holders must describe the technology well enough to allow anyone to replicate it once the patent term ends. Thus patent law allows us to avert two dangers: the danger that the innovation will languish because the inventor has no way to recover her investment of time and capital, and the danger that the inventor will turn to secrecy instead, hiding the details of her innovation behind black box technologies and restrictive contracts, so that society never gets the knowledge embedded in it. (This is a real danger. The medieval guilds often relied on secrecy to maintain the commercial advantage conveyed by their special skills, thus slowing progress down and sometimes simply stopping it. We still don't know how they made Stradivarius violins sound so good. Patents, by contrast, keep the knowledge public, at least in theory;3 you must describe it to own it.) And again, decisions about the direction of innovation have been largely, though not entirely, decentralized to the people who actually might use the products and services that result. This is our innovation policy and it is increasingly driven by patent. 16 What about the legal protection of trademarks, the little words or symbols or product shapes that identify products for us? Why do we have trademark law, this "homestead law for the English language"?4 Why not simply allow anyone to use any name or attractive symbol that they want on their products, even if someone else used it first? A trademark gives me a limited right to exclude other people from using my mark, or brand name, or product shape, just as copyright and patent law give me a limited right to exclude other people from my original expression or my novel invention. Why create such a right and back it with the force of law? 17 According to the economists, the answer is that trademark law does two things. It saves consumers time. We have good reason to believe that a soap that says "Ivory" or a tub of ice cream that says "Häagen-Dazs" will be made by the same manufacturer that made the last batch of Ivory soap or Häagen-Dazs ice cream. If we liked the good before and we see the symbol again, we know what we are getting. I can work out what kind of soap, ice cream, or car I like, and then just look for the appropriate sign rather than investigating the product all over again each time I buy. That would be wasteful and economists hate waste. At the same time, trademarks fulfill a second function: they are supposed to give manufacturers an incentive to make good products--or at least to make products of consistent quality or price--to build up a good brand name and invest in consistency of its key features, knowing that no other firm can take their name or symbol. (Why produce a high-quality product, or a reliable cheap product, and build a big market share if a free rider could wait until people liked the product and then just produce an imitation with the same name but of lower quality?) The promise of trademark is that quality and commercial information flow regulate themselves, with rational consumers judging among goods of consistent quality produced by manufacturers with an interest in building up long-term reputation. 18 So there we have the idealized vision of intellectual property. It is not merely supposed to produce incentives for innovation by rewarding creators, though that is vital. Intellectual property is also supposed to create a feedback mechanism that dictates the contours of information and innovation production. It is not an overstatement to say that intellectual property rights are designed to shape our information marketplace. Copyright law is supposed to give us a self-regulating cultural policy in which the right to exclude others from one's original expression fuels a vibrant public sphere indirectly driven by popular demand. At its best, it is supposed to allow a decentralized and iconoclastic cultural ferment in which independent artists, musicians, and writers can take their unique visions, histories, poems, or songs to the world--and make a living doing so if their work finds favor. Patent law is supposed to give us a self-regulating innovation policy in which the right to exclude others from novel and useful inventions creates a cybernetic and responsive innovation marketplace. The allocation of social resources to particular types of innovation is driven by guesses about what the market wants. Trademark law is supposed to give us a self-regulating commercial information policy in which the right to exclude others from one's trade name, symbol, or slogan produces a market for consumer information in which firms have incentives to establish quality brand names and consumers can rely on the meaning and the stability of the logos that surround them. Ivory soap will always mean Ivory soap and Coke will mean Coke, at least until the owners of those marks decide to change the nature of their products. 19 Some readers will find my use of the term "intellectual property" mistaken and offensive. They will argue, and I agree, that the use of the term "property" can cause people mistakenly to conflate these rights with those to physical property. (I outline that process and its negative consequences in the next chapter.) They will argue, and again I agree, that there are big differences between the three fields I have described. Should we not just list the specific rights about which we are speaking--copyright, patent, or trademark? Both of these concerns are real and well-founded, but I respectfully disagree with the conclusion that we should give up the term "intellectual property." 20 First, as I have tried to show above, while there are considerable differences between the three fields I discussed, there is also a core similarity--the attempt to use a legally created privilege to solve a potential "public goods problem." That similarity can enlighten as well as confuse. Yes, copyright looks very different from patent, just as a whale looks very different from a mouse. But we do not condemn the scientist who notes that they are both "mammals"--a socially constructed category--so long as he has a reason for focusing on that commonality. Second, the language of intellectual property exists. It has political reality in the world. Sometimes the language confuses and misleads. There are two possible reactions to such a reality. One can reject it and insist on a different and "purified" nomenclature, or one can attempt to point out the misperceptions and confusions using the very language in which they are embedded. I do not reject the first tactic. It can be useful. Here, though, I have embraced the second. 21 I have provided the idealized story of intellectual property. But is it true? Did the law really develop that way? Does it work that way now? Does this story still apply in the world of the Internet and the Human Genome Project? If you believed the idealized story, would you know what kind of intellectual property laws to write? The answer to all of these questions is "not exactly." 22 Like most social institutions, intellectual property has an altogether messier and more interesting history than this sanitized version of its functioning would suggest. The precursors of copyright law served to force the identification of the author, so that he could be punished if he proved to be a heretic or a revolutionary. The Statute of Anne--the first true copyright statute--was produced partly because of publishers' fights with booksellers; the authorial right grew as an afterthought.5 The history of patents includes a wealth of attempts to reward friends of the government and restrict or control dangerous technologies. Trademark law has shuttled uneasily between being a free-floating way to police competition so as to prohibit actions that courts thought were "unfair" and an absolute property right over an individual word or symbol. 23 But does intellectual property work this way now, promoting the ideal of progress, a transparent marketplace, easy and cheap access to information, decentralized and iconoclastic cultural production, self-correcting innovation policy? Often it does, but distressingly often it does the reverse. The rights that were supposed to be limited in time and scope to the minimum monopoly necessary to ensure production become instead a kind of perpetual corporate welfare--restraining the next generation of creators instead of encouraging them. The system that was supposed to harness the genius of both the market and democracy sometimes subverts both. Worse, it does so inefficiently, locking up vast swaths of culture in order to confer a benefit on a tiny minority of works. But this is too abstract. A single instance from copyright law will serve as a concrete example of what is at stake here. Later in the book I will give other examples. 24 YOU'LL GET MY LIBRARY OF CONGRESS WHEN . . . 25 Go to the Library of Congress catalogue. It is online at http://catalog.loc.gov/. This is an astounding repository of material--not just books and periodicals, but pictures, films, and music. The vast majority of this material, perhaps as much as 95 percent in the case of books, is commercially unavailable.6 The process happens comparatively quickly. Estimates suggest that a mere twenty-eight years after publication 85 percent of the works are no longer being commercially produced. (We know that when U.S. copyright required renewal after twenty-eight years, about 85 percent of all copyright holders did not bother to renew. This is a reasonable, if rough, guide to commercial viability.)7 26 Yet because the copyright term is now so long, in many cases extending well over a century, most of twentieth-century culture is still under copyright--copyrighted but unavailable. Much of this, in other words, is lost culture. No one is reprinting the books, screening the films, or playing the songs. No one is allowed to. In fact, we may not even know who holds the copyright. Companies have gone out of business. Records are incomplete or absent. In some cases, it is even more complicated. A film, for example, might have one copyright over the sound track, another over the movie footage, and another over the script. You get the idea. These works--which are commercially unavailable and also have no identifiable copyright holder--are called "orphan works." They make up a huge percentage of our great libraries' holdings. For example, scholars estimate that the majority of our film holdings are orphan works.8 For books, the estimates are similar. Not only are these works unavailable commercially, there is simply no way to find and contact the person who could agree to give permission to digitize the work or make it available in a new form. 27 Take a conservative set of numbers. Subtract from our totals the works that are clearly in the public domain. In the United States, that is generally work produced before 1923. That material, at least, we can use freely. Subtract, too, the works that are still available from the copyright holder. There we can gain access if we are willing to pay. Yet this still leaves a huge proportion of twentieth- and twenty-first-century culture commercially unavailable but under copyright. In the case of books, the number is over 95 percent, as I said before; with films and music, it is harder to tell, but the percentages are still tragically high. A substantial proportion of that total is made up of orphan works. They cannot be reprinted or digitized even if we were willing to pay the owner to do so. And then comes the Internet. Right now, you can search for those books or films or songs and have the location of the work instantly displayed, as well as a few details about it. And if you live in Washington, D.C., or near some other great library, you can go to a reading room, and if the work can be found and has not been checked out, and has not deteriorated, you can read the books (though you probably will not be able to arrange to see the movies unless you are an accredited film scholar). 28 I was searching the Library of Congress catalogue online one night, tracking down a seventy-year-old book about politics and markets, when my son came in to watch me. He was about eight years old at the time but already a child of the Internet age. He asked what I was doing and I explained that I was printing out the details of the book so that I could try to find it in my own university library. "Why don't you read it online?" he said, reaching over my shoulder and double-clicking on the title, frowning when that merely led to another information page: "How do you get to read the actual book?" I smiled at the assumption that all the works of literature were not merely in the Library of Congress, but actually on the Net: available to anyone with an Internet connection anywhere in the world--so that you could not merely search for, but also read or print, some large slice of the Library's holdings. Imagine what that would be like. Imagine the little underlined blue hyperlink from each title--to my son it made perfect sense. The book's title was in the catalogue. When you clicked the link, surely you would get to read it. That is what happened in his experience when one clicked a link. Why not here? It was an old book, after all, no longer in print. Imagine being able to read the books, hear the music, or watch the films--or at least the ones that the Library of Congress thought it worthwhile to digitize. Of course, that is ridiculous. 29 I tried to explain this to my son. I showed him that there were some works that could be seen online. I took him to the online photograph library, meaning to show him the wealth of amazing historical photographs. Instead, I found myself brooding over the lengthy listing of legal restrictions on the images and the explanation that reproduction of protected items may require the written permission of the copyright owners and that, in many cases, only indistinct and tiny thumbnail images are displayed to those searching from outside the Library of Congress "because of potential rights considerations." The same was true of the scratchy folk songs from the twenties or the early film holdings. The material was in the Library, of course--remarkable collections in some cases, carefully preserved, and sometimes even digitized at public expense. Yet only a tiny fraction of it is available online. (There is a fascinating set of Edison's early films, for example.) 30 Most of the material available online comes from so long ago that the copyright could not possibly still be in force. But since copyright lasts for seventy years after the death of the author (or ninety-five years if it was a corporate "work for hire"), that could be a very, very long time indeed. Long enough, in fact, to keep off limits almost the whole history of moving pictures and the entire history of recorded music. Long enough to lock up almost all of twentieth-century culture. 31 But is that not what copyright is supposed to do? To grant the right to restrict access, so as to allow authors to charge for the privilege of obtaining it? Yes, indeed. And this is a very good idea. But as I argue in this book, the goal of the system ought to be to give the monopoly only for as long as necessary to provide an incentive. After that, we should let the work fall into the public domain where all of us can use it, transform it, adapt it, build on it, republish it as we wish. For most works, the owners expect to make all the money they are going to recoup from the work with five or ten years of exclusive rights. The rest of the copyright term is of little use to them except as a kind of lottery ticket in case the work proves to be a one-in-a- million perennial favorite. The one-in-a-million lottery winner will benefit, of course, if his ticket comes up. And if the ticket is "free," who would not take it? But the ticket is not free to the public. They pay higher prices for the works still being commercially exploited and, frequently, the price of complete unavailability for the works that are not. 32 Think of a one-in-a-million perennial favorite--Harry Potter, say. Long after J. K. Rowling is dust, we will all be forbidden from making derivative works, or publishing cheap editions or large-type versions, or simply reproducing it for pleasure. I am a great admirer of Ms. Rowling's work, but my guess is that little extra incentive was provided by the thought that her copyright will endure seventy rather than merely fifty years after her death. Some large costs are being imposed here, for a small benefit. And the costs fall even more heavily on all the other works, which are available nowhere but in some moldering library stacks. To put it another way, if copyright owners had to purchase each additional five years of term separately, the same way we buy warranties on our appliances, the economically rational ones would mainly settle for a fairly short period. 33 Of course, there are some works that are still being exploited commercially long after their publication date. Obviously the owners of these works would not want them freely available online. This seems reasonable enough, though even with those works the copyright should expire eventually. But remember, in the Library of Congress's vast, wonderful pudding of songs and pictures and films and books and magazines and newspapers, there is perhaps a handful of raisins' worth of works that anyone is making any money from, and the vast majority of those come from the last ten years. If one goes back twenty years, perhaps a raisin. Fifty years? A slight raisiny aroma. We restrict access to the whole pudding in order to give the owners of the raisin slivers their due. But this pudding is almost all of twentieth- century culture, and we are restricting access to it when almost of all of it could be available. 34 If you do not know much about copyright, you might think that I am exaggerating. After all, if no one has any financial interest in the works or we do not even know who owns the copyright, surely a library would be free to put those works online? Doesn't "no harm, no foul" apply in the world of copyright? In a word, no. Copyright is what lawyers call a "strict liability" system. This means that it is generally not a legal excuse to say that you did not believe you were violating copyright, or that you did so by accident, or in the belief that no one would care, and that your actions benefited the public. Innocence and mistake do not absolve you, though they might reduce the penalties imposed. Since it is so difficult to know exactly who owns the copyright (or copyrights) on a work, many libraries simply will not reproduce the material or make it available online until they can be sure the copyright has expired--which may mean waiting for over a century. They cannot afford to take the risk. 35 What is wrong with this picture? Copyright has done its job and encouraged the creation of the work. But now it acts as a fence, keeping us out and restricting access to the work to those who have the time and resources to trudge through the stacks of the nation's archives. In some cases, as with film, it may simply make the work completely unavailable. 36 So far I have been talking as though copyright were the only reason the material is not freely available online. But of course, this is not true. Digitizing costs money (though less every year) and there is a lot of rubbish out there, stuff no one would ever want to make available digitally (though it must be noted that one man's rubbish is another man's delight). But that still leaves vast amounts of material that we would want, and be willing to pay, to have digitized. Remember also that if the material were legally free, anyone could get in on the act of digitizing it and putting it up. Google's much-heralded effort to scan the books in major libraries is just the kind of thing I mean. But Google is being sued for violating copyright--even though it allows any author to "opt out" of its system, and even though under the Google system you cannot click to get the book if it is still under copyright, merely a snippet a few sentences long from the book. 37 If you are shaking your head as you read this, saying that no one would bother digitizing most of the material in the archives, look at the Internet and ask yourself where the information came from the last time you did a search. Was it an official and prestigious institution? A university or a museum or a government? Sometimes those are our sources of information, of course. But do you not find the majority of the information you need by wandering off into a strange click-trail of sites, amateur and professional, commercial and not, hobbyist and entrepreneur, all self-organized by internal referrals and search engine algorithms? Even if Google did not undertake the task of digitization, there would be hundreds, thousands, maybe millions of others who would--not with Google's resources, to be sure. In the process, they would create something quite remarkable. 38 The most satisfying proofs are existence proofs. A platypus is an existence proof that mammals can lay eggs. The Internet is an existence proof of the remarkable information processing power of a decentralized network of hobbyists, amateurs, universities, businesses, volunteer groups, professionals, and retired experts and who knows what else. It is a network that produces useful information and services. Frequently, it does so at no cost to the user and without anyone guiding it. Imagine that energy, that decentralized and idiosyncratically dispersed pattern of interests, turned loose on the cultural artifacts of the twentieth century. Then imagine it coupled to the efforts of the great state archives and private museums who themselves would be free to do the same thing. Think of the people who would work on Buster Keaton, or the literary classics of the 1930s, or the films of the Second World War, or footage on the daily lives of African-Americans during segregation, or the music of the Great Depression, or theremin recordings, or the best of vaudeville. Imagine your Google search in such a world. Imagine that Library of Congress. One science fiction writer has taken a stab. His character utters the immortal line, "Man, you'll get my Library of Congress when you pry my cold dead fingers off it!" 9 39 Familiar with the effect of this kind of train of thought on his father, my son had long since wandered off in search of a basketball game to watch. But I have to admit his question was something of an epiphany for me: Where do you click to get the actual book? 40 The response I get from a lot of people is that this vision of the Library of Congress is communism, pure and simple. Such people view Google's attempt to digitize books as simple theft. Surely it will destroy the incentives necessary to produce the next beach novel, the next academic monograph, the next teen band CD, the next hundred-million-dollar movie? But this mistakes my suggestion. Imagine a very conservative system. First, let us make people demonstrate that they want a copyright, by the arduous step of actually writing the word copyright or the little (C) on the work. (At the moment, everyone gets a copyright as soon as the work is written down or otherwise fixed, whether they want one or not.) But how long a copyright? We know that the majority of works are only valuable for five or ten years. Let us give copyright owners more than double that, say twenty-eight years of exclusive rights. If prior experience is any guide, 85 percent of works will be allowed to enter the public domain after that period. If that isn't generous enough, let us say that the small proportion of owners who still find value in their copyright at the end of twenty-eight years can extend their copyright for another twenty-eight years. Works that are not renewed fall immediately into the public domain. If you check the register after twenty- eight years and the work has not been renewed, it is in the public domain. Works that are renewed get the extra time. 41 Now this is a conservative suggestion, too conservative in my view, though still better than what we have now. Is it feasible? It would be hard to argue that it is not. This pretty much was the law in the United States until 1978. (My system is a little simpler, but the broad strokes are the same.) Since that point, in two broad stages, we have moved away from this system at the very moment in history when the Internet made it a particularly stupid idea to do so. 42 How have we changed the system? We have given copyrights to the creator of any original work as soon as it is fixed, so that you, reader, are the author of thousands of copyrighted works. Almost everything up on the Internet is copyrighted, even if its creators do not know that and would prefer it to be in the public domain. Imagine that you want to make a documentary and use a film clip that a student filmmaker has put up on his home page. Perhaps you want to adapt the nifty graphics that a high school teacher in Hawaii created to teach her calculus class, thinking that, with a few changes, you could use the material for your state's K-12 physics program. Perhaps you are a collage artist who wishes to incorporate images that amateur artists have put online. None of the works are marked by a copyright symbol. Certainly they are up on the Internet, but does that mean that they are available for reprinting, adaptation, or incorporation in a new work? 43 In each of these cases, you simply do not know whether what you are doing is legal or not. Of course, you can take the risk, though that becomes less advisable if you want to share your work with others. Each broadening of the circle of sharing increases the value to society but also the legal danger to you. What if you want to put the course materials on the Net, or publish the anthology, or display the movie? Perhaps you can try to persuade your publisher or employer or distributor to take the risk. Perhaps you can track down the authors of every piece you wish to use and puzzle through the way to get a legal release from them stating that they give you permission to use the work they did not even know they had copyright over. Or you can give up. Whatever happens, you waste time and effort in trying to figure out a way of getting around a system that is designed around neither your needs nor the needs of many of the people whose work you want to use. 44 Apart from doing away with the need to indicate that you want your works to be copyrighted, we have lengthened the copyright term. We did this without any credible evidence that it was necessary to encourage innovation. We have extended the terms of living and even of dead authors over works that have already been created. (It is hard to argue that this was a necessary incentive, what with the works already existing and the authors often being dead.) We have done away with the need to renew the right. Everyone gets the term of life plus seventy years, or ninety-five years for corporate "works for hire." All protected by a "strict liability" system with scary penalties. And, as I said before, we have made all those choices just when the Internet makes their costs particularly tragic. 45 In sum, we have forgone the Library of Congress I described without even apparently realizing we were doing so. We have locked up most of twentieth-century culture and done it in a particularly inefficient and senseless way, creating vast costs in order to convey proportionally tiny benefits. (And all without much complaint from those who normally object to inefficient government subsidy programs.) Worst of all, we have turned the system on its head. Copyright, intended to be the servant of creativity, a means of promoting access to information, is becoming an obstacle to both. 46 That, then, is one example of the stakes of the debate over intellectual property policy. Unfortunately, the problem of copyright terms is just one example, one instance of a larger pattern. As I will try to show, this pattern is repeated again and again in patents, in trademarks, and elsewhere in copyright law. This is not an isolated "glitch." It is a complicated but relentless tendency that has led to a hypertrophy of intellectual property rights and an assault on the public domain. In fact, in many cases, the reality is even worse: there appears to be a complete ignorance about the value of the public domain. Property's opposite, its outside, is getting short shrift. 47 To paraphrase a song from my youth, "how did we get here?" Where should we turn to understand the role of intellectual property in the era of the Internet and the decoding of the human genome? We could turn to the cutting edge of technology or to economics or information theory. But none of those would be as useful a starting place as a letter that was written about two hundred years ago, using a high-tech quill pen, about a subject far from the digital world. Chapter 2: Thomas Jefferson Writes a Letter 1 On August 13, 1813, Thomas Jefferson took up his pen to write to Isaac McPherson.1 It was a quiet week in Jefferson's correspondence. He wrote a letter to Madison about the appointment of a tax assessor, attempted to procure a government position for an acquaintance, produced a fascinating and lengthy series of comments on a new "Rudiments of English Grammar," discussed the orthography of nouns ending in "y," accepted the necessary delay in the publication of a study on the anatomy of mammoth bones, completed a brief biography of Governor Lewis, and, in general, confined himself narrowly in subject matter.2 But on the 13th of August, Jefferson's mind was on intellectual property, and most specifically, patents. 2 Jefferson's writing is, as usual, apparently effortless. Some find his penmanship a little hard to decipher. To me, used to plowing through the frenzied chicken tracks that law students produce during exams, it seems perfectly clear. If handwriting truly showed the architecture of the soul, then Jefferson's would conjure up Monticello or the University of Virginia. There are a few revisions and interlineations, a couple of words squeezed in with a caret at the bottom of the line, but for the most part the lines of handwriting simply roll on and on--"the fugitive fermentation of an individual brain,"3 to quote a phrase from the letter, caught in vellum and ink, though that brain has been dust for more than a century and a half. 3 I love libraries. I love the mushroom smell of gently rotting paper, the flaky crackle of manuscripts, and the surprise of matching style of handwriting with style of thought. Today, though, I am viewing his letter over the Internet on a computer screen. (You can too. The details are at the back of the book.) 4 I think Jefferson would have been fascinated by the Internet. After all, this was the man whose library became the Library of Congress,4 who exemplifies the notion of the brilliant dabbler in a hundred fields, whose own book collection was clearly a vital and much consulted part of his daily existence, and whose vision of politics celebrates the power of an informed citizenry. Admittedly, the massive conflicts between Jefferson's announced principles and his actions on the issue of slavery have led some, though not me, to doubt that there is any sincerity or moral instruction to be found in his words.5 But even those who find him a sham can hardly fail to see the continual and obvious joy he felt about knowledge and its spread. 5 In the letter to Isaac McPherson, a letter that has become very famous in the world of the digerati,6 this joy becomes manifest. The initial subject of the correspondence seems far from the online world. McPherson wrote to Jefferson about "elevators, conveyers and Hopper-boys." Specifically, he wanted to know Jefferson's opinion of a patent that had been issued to Mr. Oliver Evans. Jefferson devotes a paragraph to a recent retrospective extension of patent rights (he disapproves) and then turns to Evans's elevators. 6 Patents then, as now, were only supposed to be given for inventions that were novel, nonobvious, and useful. Jefferson had considerable doubt whether Evans's device, essentially a revolving string of buckets used to move grain, actually counted as "an invention." "The question then whether such a string of buckets was invented first by Oliver Evans, is a mere question of fact in mathematical history. Now, turning to such books only as I happen to possess, I find abundant proof that this simple machinery has been in use from time immemorial." Jefferson cites from his library example after example of references to the "Persian wheel"--a string of buckets to move water. The display of scholarship is effortless and without artifice. If the device existed to move water, he declares, Mr. Evans can hardly patent it to move grain. "If one person invents a knife convenient for pointing our pens, another cannot have a patent right for the same knife to point our pencils. A compass was invented for navigating the sea; another could not have a patent right for using it to survey land."7 7 So far as we can tell, this was the only part of the letter that interested McPherson. Later correspondence indicates that he had a pamphlet printed questioning the patent.8 But while it is impressive to see Jefferson's easy command of historical evidence or his grasp of the importance of limiting the subject matter, scope, and duration of patents, these qualities alone would not have given the letter the fame it now has. It is when Jefferson turns to the idea of intellectual property itself that the letter becomes more than a historical curiosity. In a couple of pages, quickly jotted down on a humid August day in 1813, he frames the issue as well as anyone has since. 8 He starts by dismissing the idea "that inventors have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs." In lines that will sound strange to those who assume that the framers of the Constitution were property absolutists, Jefferson argues that "stable ownership" of even tangible property is "a gift of social law." Intellectual property, then, has still less of a claim to some permanent, absolute, and natural status. 9 [W]hile it is a moot question whether the origin of any kind of property is derived from nature at all, it would be singular to admit a natural and even an hereditary right to inventors. It is agreed by those who have seriously considered the subject, that no individual has, of natural right, a separate property in an acre of land, for instance. By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it, but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property.9 10 Jefferson's point here may seem obscure to us. We are not used to starting every argument from first principles. But it is in fact quite simple. It is society that creates property rights that go beyond mere occupancy. It does so for several reasons--reasons of both practicality and natural justice. (Elsewhere in his writings, Jefferson expands on this point at greater length.) One of those reasons has to do with the difficulty, perhaps even the impossibility, of two different people having full and unfettered ownership of the same piece of property simultaneously. Another linked reason comes from the practicality of excluding others from our property, so that we can exploit it secure from the plunder or sloth of others. The economists you encountered in Chapter 1 have, with their usual linguistic felicity, coined the terms "rivalrous" and "excludable" to describe these characteristics. 11 With rivalrous property, one person's use precludes another's. If I drink the milk, you cannot. Excludable property is, logically enough, property from which others can easily be excluded or kept out. But ideas seem to have neither of these characteristics. 12 If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possess the less, because every other possess the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.10 13 Those who quote the passage sometimes stop here, which is a shame, because it leaves the impression that Jefferson was unequivocally against intellectual property rights. But that would be a considerable overstatement. When he says that inventions can never be the subject of property, he means a permanent and exclusive property right which, as a matter of natural right, no just government could abridge. However, inventions could be covered by temporary state-created monopolies instituted for the common good. In the lines immediately following the popularly quoted excerpt, Jefferson goes on: 14 Society may give an exclusive right to the profits arising from [inventions], as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from any body. Accordingly, it is a fact, as far as I am informed, that England was, until we copied her, the only country on earth which ever, by a general law, gave a legal right to the exclusive use of an idea. In some other countries it is sometimes done, in a great case, and by a special and personal act, but, generally speaking, other nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices.11 15 Jefferson's message was a skeptical recognition that intellectual property rights might be necessary, a careful explanation that they should not be treated as natural rights, and a warning of the monopolistic dangers that they pose. He immediately goes on to say something else, something that is, if anything, more true in the world of patents on Internet business methods and gene sequences than it was in the world of "conveyers and Hopper-boys." 16 Considering the exclusive right to invention as given not of natural right, but for the benefit of society, I know well the difficulty of drawing a line between the things which are worth to the public the embarrassment of an exclusive patent, and those which are not.12 17 So Jefferson gives us a classic set of cautions, cautions that we should be required to repeat, as police officers repeat the Miranda Warning to a suspect. In this case, they should be repeated before we rush off into the world of intellectual property policy rather than before we talk to the police without our lawyers present. 18 THE JEFFERSON WARNING 19 Like the Miranda Warning, the Jefferson Warning has a number of important parts. 20 * First, the stuff we cover with intellectual property rights has certain vital differences from the stuff we cover with tangible property rights. Partly because of those differences, Jefferson, like most of his successors in the United States, does not see intellectual property as a claim of natural right based on expended labor. Instead it is a temporary state-created monopoly given to encourage further innovation. * Second, there is no "entitlement" to have an intellectual property right. Such rights may or may not be given as a matter of social "will and convenience" without "claim or complaint from any body." * Third, intellectual property rights are not and should not be permanent; in fact they should be tightly limited in time and should not last a day longer than necessary to encourage the innovation in the first place. * Fourth, a linked point, they have considerable monopolistic dangers--they may well produce more "embarrassment than advantage." In fact, since intellectual property rights potentially restrain the benevolent tendency of "ideas . . . [to] freely spread from one to another over the globe, for the moral and mutual instruction of man," they may in some cases actually hinder rather than encourage innovation. * Fifth, deciding whether to have an intellectual property system is only the first choice in a long series.13 Even if one believes that intellectual property is a good idea, which I firmly do, one will still have the hard job of saying which types of innovation or information are "worth to the public the embarrassment" of an exclusive right, and of drawing the limits of that right. This line-drawing task turns out to be very difficult. Without the cautions that Jefferson gave us it is impossible to do it well. 21 Jefferson's message was famously echoed and amplified thirty years later in Britain by Thomas Babington Macaulay.14 Macaulay's speeches to the House of Commons in 1841 on the subject of copyright term extension still express better than anything else the position that intellectual property rights are necessary evils which must be carefully circumscribed by law. In order for the supply of valuable books to be maintained, authors "must be remunerated for their literary labour. And there are only two ways in which they can be remunerated. One of those ways is patronage; the other is copyright." Patronage is rejected out of hand. "I can conceive no system more fatal to the integrity and independence of literary men than one under which they should be taught to look for their daily bread to the favour of ministers and nobles."15 22 We have, then, only one resource left. We must betake ourselves to copyright, be the inconveniences of copyright what they may. Those inconveniences, in truth, are neither few nor small. Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly. . . . I believe, Sir, that I may safely take it for granted that the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad. And I may with equal safety challenge my honorable friend to find out any distinction between copyright and other privileges of the same kind; any reason why a monopoly of books should produce an effect directly the reverse of that which was produced by the East India Company's monopoly of tea, or by Lord Essex's monopoly of sweet wines. Thus, then, stands the case. It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good.16 23 Notice that it is the monopolistic quality of intellectual property that really disturbs Macaulay. His was a generation of thinkers for whom the negative effect of monopolies of any kind (and state-granted monopolies in particular) was axiomatic. He becomes almost contemptuous when one of the supporters of copyright extension declared that it was merely "a theory" that monopoly makes things expensive. Macaulay agrees, tongue in cheek. "It is a theory in the same sense in which it is a theory, that day and night follow each other, that lead is heavier than water, that bread nourishes, that arsenic poisons, that alcohol intoxicates."17 24 These words from Jefferson and Macaulay encapsulate an eighteenth- and nineteenth-century free-trade skepticism about intellectual property, a skepticism that is widely, but not universally, believed to have played an important role in shaping the history of intellectual property in both the United States and the United Kingdom. Certainly the U.S. Supreme Court has offered support for that position,18 and, with one significant recent exception,19 historians of intellectual property have agreed.20 Jefferson himself had believed that the Constitution should have definite limits on both the term and the scope of intellectual property rights.21 James Madison stressed the costs of any intellectual property right and the need to limit its term and to allow the government to end the monopoly by compulsory purchase if necessary.22 Adam Smith expressed similar views. Monopolies that carry on long after they were needed to encourage some socially beneficial activity, he said, tax every other citizen "very absurdly in two different ways: first, by the high price of goods, which, in the case of a free trade, they could buy much cheaper; and, secondly, by their total exclusion from a branch of business which it might be both convenient and profitable for many of them to carry on."23 25 It is important to note, though, that the eighteenth- and nineteenth-century writers I have quoted were not against intellectual property. All of them--Jefferson, Madison, Smith, and Macaulay--could see good reason why intellectual property rights should be granted. They simply insisted on weighing the costs and benefits of a new right, each expansion of scope, each lengthening of the copyright term. Here is Macaulay again, waxing eloquently sarcastic about the costs and benefits of extending the copyright term so that it would last many years after the author's death: 26 I will take an example. Dr. Johnson died fifty-six years ago. If the law were what my honourable and learned friend wishes to make it, somebody would now have the monopoly of Dr. Johnson's works. Who that somebody would be it is impossible to say; but we may venture to guess. I guess, then, that it would have been some bookseller, who was the assign of another bookseller, who was the grandson of a third bookseller, who had bought the copyright from Black Frank, the Doctor's servant and residuary legatee, in 1785 or 1786. Now, would the knowledge that this copyright would exist in 1841 have been a source of gratification to Johnson? Would it have stimulated his exertions? Would it have once drawn him out of his bed before noon? Would it have once cheered him under a fit of the spleen? Would it have induced him to give us one more allegory, one more life of a poet, one more imitation of Juvenal? I firmly believe not. I firmly believe that a hundred years ago, when he was writing our debates for the Gentleman's Magazine, he would very much rather have had twopence to buy a plate of shin of beef at a cook's shop underground.24 27 Again, I am struck by how seamlessly Macaulay coupled beautiful, evocative writing and careful, analytic argument. Admittedly, he was remarkable even in his own time, but it is hard to imagine a contemporary speechwriter, let alone a politician, coming up with Dr. Johnson "cheered . . . under a fit of the spleen" or buying a "plate of shin of beef at a cook's shop underground." Almost as hard as it is to imagine any of them engaging in Jefferson's correspondence about mammoth bones, orthography, and the practicalities of the nautical torpedo. But I digress. 28 Macaulay is not against using a lengthened copyright term to give an extra reward to writers, even if this would dramatically raise the price of books. What he objects to is dramatically raising the price of books written by long-dead authors in a way that benefits the authors hardly at all. 29 Considered as a reward to him, the difference between a twenty years' and a sixty years' term of posthumous copyright would have been nothing or next to nothing. But is the difference nothing to us? I can buy Rasselas for sixpence; I might have had to give five shillings for it. I can buy the Dictionary, the entire genuine Dictionary, for two guineas, perhaps for less; I might have had to give five or six guineas for it. Do I grudge this to a man like Dr. Johnson? Not at all. Show me that the prospect of this boon roused him to any vigorous effort, or sustained his spirits under depressing circumstances, and I am quite willing to pay the price of such an object, heavy as that price is. But what I do complain of is that my circumstances are to be worse, and Johnson's none the better; that I am to give five pounds for what to him was not worth a farthing.25 30 Though Macaulay won the debate over copyright term extension, it is worth noting here that his opponents triumphed in the end. As I pointed out in the last chapter, the copyright term in most of Europe and in the United States now lasts for the life of the author and an additional seventy years afterward, ten years more than the proposal which made Macaulay so indignant. In the United States, corporate owners of "works-for-hire" get ninety- five years.26 The Supreme Court recently heard a constitutional challenge to the law which expanded the term of copyrights by twenty years to reach this remarkable length.27 (Full disclosure: I helped prepare an amicus brief in that case.)28 This law, the Sonny Bono Copyright Term Extension Act, also extended existing copyrights over works which had already been created.29 As I observed earlier, this is particularly remarkable if the idea is to give an incentive to create. Obviously the authors of existing works were given sufficient incentive to create; we know that because they did. Why do we need to give the people who now hold their copyrights another twenty years of monopoly? This is all cost and no benefit. Macaulay would have been furious. 31 When the Supreme Court heard the case, it was presented with a remarkable friend-of-the-court brief from seventeen economists, several of them Nobel laureates.30 The economists made exactly Macaulay's argument, though in less graceful language. They pointed out that copyright extension imposed enormous costs on the public and yet conveyed tiny advantages, if any, to the creator. Such an extension, particularly over works that had already been written, hardly fit the limits of Congress's power under the Constitution "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."31 Macaulay doubted that these enormously long terms would encourage the living. Surely they would do little to encourage the dead, while imposing considerable costs of access on the living? Thus they could hardly be said to "promote the progress" of knowledge as the Constitution requires. The Court was unmoved by this and other arguments. It upheld the law. I will return to its decision at the end of the book. 32 The intellectual property skeptics had other concerns. Macaulay was particularly worried about the power that went with a transferable and inheritable monopoly. It is not only that the effect of monopoly is "to make articles scarce, to make them dear, and to make them bad." Macaulay also pointed out that those who controlled the monopoly, particularly after the death of the original author, might be given too great a control over our collective culture. Censorious heirs or purchasers of the copyright might prevent the reprinting of a great work because they disagreed with its morals.32 We might lose the works of Fielding or Gibbon, because a legatee found them distasteful and used the power of the copyright to suppress them. This is no mere fantasy, Macaulay tells us. After praising the novels of Samuel Richardson in terms that, to modern eyes, seem a little fervid ("No writings, those of Shakespeare excepted, show more profound knowledge of the human heart"), Macaulay recounts the story of Richardson's grandson, "a clergyman in the city of London." Though a "most upright and excellent man," the grandson "had conceived a strong prejudice against works of fiction," "thought all novel-reading not only frivolous but sinful," and "had never thought it right to read one of his grandfather's books."33 Extended copyright terms might hand over the copyright to such a man. The public would lose, not because they had to pay exorbitant prices that denied some access to the work, but because the work would be altogether suppressed. Richardson's novels--Pamela, Clarissa Harlowe, and so on--are now the preserve of the classroom rather than the drawing room, so this might not seem like much of a loss. But Macaulay's next example is not so easy to dismiss. 33 One of the most instructive, interesting, and delightful books in our language is Boswell's Life of Johnson. Now it is well known that Boswell's eldest son considered this book, considered the whole relation of Boswell to Johnson, as a blot in the escutcheon of the family. He thought, not perhaps altogether without reason, that his father had exhibited himself in a ludicrous and degrading light. And thus he became so sore and irritable that at last he could not bear to hear the Life of Johnson mentioned. Suppose that the law had been what my honourable and learned friend wishes to make it. Suppose that the copyright of Boswell's Life of Johnson had belonged, as it well might, during sixty years, to Boswell's eldest son. What would have been the consequence? An unadulterated copy of the finest biographical work in the world would have been as scarce as the first edition of Camden's Britannia.34 34 From more recent examples we can see that outright suppression is not the only thing to fear. The authors' heirs, or the corporations which have purchased their rights, may keep policing the boundaries of the work long after the original author is dead. In 2001, Alice Randall published The Wind Done Gone. As its title might indicate, The Wind Done Gone was a 220- page "critique of and reaction to" the world of Gone With the Wind by Margaret Mitchell.35 Most crucially, perhaps, it was a version of Gone With the Wind told from the slaves' point of view. Suddenly the actions of Rhett ("R"), Scarlett ("Other"), and an obviously gay Ashley ("Dreamy Gentleman") come into new perspective through the eyes of Scarlett's "mulatto" half- sister. Mitchell's estate wanted to prevent publication of the book. At first they were successful.36 As Yochai Benkler puts it, 35 Alice Randall, an African American woman, was ordered by a government official not to publish her criticism of the romanticization of the Old South, at least not in the words she wanted to use. The official was not one of the many in Congress and the Administration who share the romantic view of the Confederacy. It was a federal judge in Atlanta who told Randall that she could not write her critique in the words she wanted to use--a judge enforcing copyright law.37 36 "They killed Miss Scarlett!" the astonished trial judge said after reading Randall's book. My colleague Jennifer Jenkins, one of the lawyers in the case, recounts that the judge saw the case in relentlessly physical terms, seeing the parody as a "bulldozer" and Gone With the Wind as a walled country estate into which the bulldozer had violently trespassed. He was consequently unimpressed with the claim that this "bulldozer" was protected by the First Amendment. Eventually, the court of appeals overturned the district court's judgment.38 Fifty-two years after Margaret Mitchell's death, it was a hotly debated point how much leeway copyright gave to others to comment upon, critique, embellish upon, and parody the cultural icon she had conjured up. 37 A NATURAL RIGHT? 38 To some people, my argument so far--and Jefferson's and Macaulay's--will seem to miss the point. They see intellectual property rights not as an incentive, a method of encouraging the production and distribution of innovation, but as a natural or moral right. My book is mine because I wrote it, not because society or the law gives me some period of exclusivity over allowing the copying of its contents. My invention is mine because it came from my brain, not because the law declares a twenty-year monopoly over its production or distribution. My logo is mine because I worked hard on it, not because the state grants me a trademark in order to lower search costs and prevent consumer confusion. One answer is simply to say "In the United States, the framers of the Constitution, the legislature, and the courts have chosen to arrange things otherwise. In copyright, patent, and trademark law--despite occasional deviations--they have embraced the utilitarian view instead." 39 Broadly speaking, that answer is correct.39 It also holds, to a lesser extent, in Britain. Even in the droits d'auteur countries, which have a markedly different copyright law regime, it largely holds for their patent and trademark law systems, and utilitarian strands suffuse even "the sacred rights of authors." So, on a national level, we have rejected or dramatically limited the natural rights view, and on an international level, we have rejected it in "industrial property"--patent and trademark--and modified it in copyright. 40 I think this answer is correct and important, but we have an obligation to go further. Partly that is because intuitions about ownership coming naturally with labor or discovery continue to influence the law. Partly it is because those moral intuitions are important and appealing. Partly it is because we might wish to modify or criticize our current system. Using the views of the framers, or current law, to preempt discussion is unsatisfactory--even though those views are of particular importance for the legal policy decisions we face in the short run, the issues on which much of my argument is concentrated. 41 There are varying stated grounds for natural or moral rights in intellectual creations. Some people may think the book is mine because I worked on it--a Lockean conception where I mix my sweat with these words and receive a property right in the process. 42 For all its attractions, there are considerable difficulties with such a view. Even within the world of tangible property, Locke's theory is more complicated than a simple equation of labor with property right. Jefferson's account of property is actually closer to Locke's than many would realize. When Jefferson points out the difficulty in justifying a natural right even in an acre of land, let alone a book, his premises are not radically different from Locke's. The same is true when Jefferson says that "[s]table ownership is the gift of social law, and is given late in the progress of society." Even if natural right does create the ground for the property claim, it is "social law" that shapes its contours and guarantees its stability. Jefferson, of course, thought that was particularly true for intellectual property rights. In that context, he felt the natural rights argument was much weaker and the need for socially defined purposive contours and limitations stronger. 43 Locke's own views on what we would think of as copyright are hard to determine. We do know that he had a strong antipathy to monopolies--particularly those affecting expression. He believed, for example, that giving publishers monopolies over great public domain books caused a disastrous fall in quality. Instead, he argued, such books should be open for all to compete to produce the best edition. Of course, he was writing in the context of monopolistic printing privileges--to which he was strongly opposed--rather than of individual authorial rights. Yet he went further and suggested that even for contemporary works, after a particular time in print--say fifty years--books could be printed by anyone. 44 I demand whether, if another act for printing should be made, it be not reasonable that nobody should have any peculiar right in any book which has been in print fifty years, but any one as well as another might have liberty to print it: for by such titles as these, which lie dormant, and hinder others, many good books come quite to be lost.40 45 This sounds like a strongly utilitarian argument, rather than one based on labor and natural right. Of course, we are not bound by what Locke or Jefferson thought. Still it is striking to see the turn to a utilitarian conception from both of them. 46 The Lockean tradition is not the only one, of course. Others believe that the property right stems from the unique personality of each individual--the configurations of your individual genius made manifest in the lines of your sonnet. (Some limit the natural right to literary and expressive work; can a mousetrap or a drug molecule express the riddle and wonder of the human spirit?) Whatever their moral basis or their ambit, the common ground between these positions is the belief in a rationale for intellectual property rights beyond the utilitarian concerns of Jefferson or Macaulay. 47 The norms embodied in the moral rights or natural rights tradition are deeply attractive--at least to me. Many of us feel a special connection to our expressive creations--even the humble ones such as a term paper or a birthday poem. It is one of the reasons that the central moral rights in the French droits d'auteur, or author's rights, tradition resonate so strongly with us. The entitlement of an author to be correctly attributed, to have some control over the integrity of his work, seems important regardless of its utilitarian functions.1 48 Yet even as we find this claim attractive, we become aware of the need to find limiting principles to it. It gives us pause to think that Margaret Mitchell or her heirs could forbid someone parodying her work. Are there no free-speech limitations? When other forms of authorship, such as computer programs, are brought into copyright's domain, does the power of the moral right decrease, while the need to limit its scope intensifies? 49 Then there is the question of length. How long is a natural right in expression or invention supposed to last? It seems absurd to imagine that Shakespeare's or Mozart's heirs, or those who had bought their copyrights, would still be controlling the performance, reproduction, and interpretation of their works hundreds of years after their death. If the rights are truly formed for a nonutilitarian purpose, after all, why should they expire? The person who first acquires property rights in land by work or conquest passes those rights down to heirs and buyers with the chain of transmission reaching to the present day. Should copyright follow suit? Even in France, the home of the strongest form of the droits d'auteur and of the "moral rights" tradition, the answer to this question was in the negative. 50 We owe a large part of the literary moral rights tradition to the immediate aftermath of the French Revolution. In France before the Revolution, as in England before the Statute of Anne, the first true copyright legislation, the regulation of publishing was through a set of "privileges" given to printers, not rights given to authors. Publishers would have a guild- enforced monopoly over certain titles. Their right was against competing publishers printing the list of titles over which they had the privilege. The Revolution abolished these privileges and, at first, put nothing in their place. On the other hand, as Carla Hesse's fascinating work reveals, there was intermittent interference by the Prefecture of Police with those who copied most flagrantly. One such publisher was sternly instructed by the police in these terms: 51 [A]ccording to the Declaration of the Rights of Man, liberty means only the freedom to do what does not harm others; and that it harms others to appropriate the work of an author, because it is an infringement of the sacred right of property; and that such an enterprise, if it were to remain unpunished, would deprive citizens of the instruction they await from celebrated authors like M. Bernardin de St. Pierre, because no author would want to consecrate his labors to the instruction of his age if piracy were ever authorized.41 52 Note the interesting mixture of the language of the "sacred rights of property" and the strong utilitarian justification which cites effects on future literary production and the "instruction" of citizens. 53 More expansive conceptions of the rights of authors and, particularly, of publishers were also offered. Even before the Revolution, publishers had been making the arguments that their privileges were a form of property rights and had the very good sense to hire the young Diderot to make those arguments. Hesse quotes his words: 54 What form of wealth could belong to a man, if not a work of the mind, . . . if not his own thoughts, . . . the most precious part of himself, that will never perish, that will immortalize him? What comparison could there be between a man, the very substance of man, his soul, and a field, a tree, a vine, that nature has offered in the beginning equally to all, and that an individual has only appropriated through cultivating it?42 55 Diderot's theme is that authors' rights should actually be stronger than other property rights for two reasons. First, they relate to the very essence of the person, the most "precious part of himself." Second, they are the only property rights over something that has been added to the existing store of wealth rather than taken from it. Authorial property, unlike property in land, adds to the common store rather than detracting from it. Locke believed that a just assertion of property rights must leave "enough and as good" for others in the society. What could better satisfy this condition than a property right over a novel that did not exist before I wrote it? One hundred years later Victor Hugo echoed the same thoughts in a speech to the Conseil d'Etat and pointed out at the same time that literary property rights could potentially "reconcile" troublesome authors to society and state. 56 You feel the importance and necessity of defending property today. Well, begin by recognising the first and most sacred of all properties, the one which is neither a transmission nor an acquisition but a creation, namely literary property . . . reconcile the artists with society by means of property.43 57 Diderot wanted perpetual copyrights for authors and, agreeably to his employers, a correspondingly perpetual printing privilege. If the author's heirs could not be traced, the copyright would devolve to the current publisher. 58 But as Hesse points out, there was another view of literary property--a much more skeptical one put forward best by Condorcet. This view is also an influential part of the heritage of the droits d'auteur, even if it is downplayed in its contemporary rhetoric. Condorcet began by framing the question of literary property as one of political liberty. "Does a man have the right to forbid another man to write the same words that he himself wrote first? That is the question to resolve."44 Like Jefferson, Condorcet is utterly unconvinced that property rights in a book can be compared to those in a field or a piece of furniture which can be occupied or used by only one man. The type of property is "based on the nature of the thing." He concluded, again in language strikingly similar to Jefferson's and Macaulay's, that literary property was not a real property right but a privilege, and one which must be assessed on a utilitarian basis in terms of its contribution to enlightenment.45 59 Any privilege therefore imposes a hindrance on freedom, placing a restriction on the rights of other citizens; As such it is not only harmful to the rights of others who want to copy, but the rights of all those who want copies, and that which increases the price is an injustice. Does the public interest require that men make this sacrifice? That is the question that must be considered; In other words, are [literary] privileges needed and useful or harmful to the progress of enlightenment?46 60 Condorcet's conclusion was that they were not necessary and that they could be harmful. "The books that most furthered the progress of enlightenment, the Encyclopédie, the works of Montesquieu, Voltaire, Rousseau, have not enjoyed the benefits of a privilege." Instead he seemed to favor a combination of "subscriptions" to authors with a trademark-like protection which allowed an author to identify a particular edition of his work as the genuine one, but which also allowed competing editions to circulate freely. In such a market, he believed that the price of the competing editions would fall to "natural" levels--today we would call it marginal cost--but the original author would still be able to charge a modest premium for the edition he authorized or certified because readers would prefer it as both more accurate and more authentic. One possible analogy is to the history of the fashion industry in the United States. It operates largely without design protection but relies heavily on the trademarks accorded to favored designers and brands. There are "knockoffs" of Armani or Balenciaga, but the wealthy still pay an enormous premium for the real thing. 61 Condorcet also insisted that whatever protection was accorded to literary works must not extend to the ideas within them. It is the truths within books that make them "useful"--a word that does not have the same luminance and importance for us today as it did for the philosophers of the Enlightenment or the French Revolution. He argued that any privilege given the author could not extend to "preventing another man from exhibiting the same truths, in perfectly the same order, from the same evidence" or from extending those arguments and developing their consequences. In a line that Hesse rightly highlights, he declares that any privileges do not extend over facts or ideas. "Ce n'est pas pour les choses, les idées; c'est pour les mots, pour le nom de l'auteur." 62 In sum, Condorcet favors a limited privilege, circumscribed by an inquiry into its effects in promoting progress and enlightenment. The privilege only applies to expression and to "the author's name," rather than to facts and ideas. This is very much within the tradition of Jefferson and Macaulay. 63 Hesse argues, correctly I think, that two warring ideas shaped--or are at least useful ways of understanding--the development of the droits d'auteur tradition. On one side were Diderot and the publishers promoting an expansive and perpetual natural authorial right, which nevertheless was supposed to vest suspiciously easily in publishers. On the other was Condorcet, looking skeptically at authorial privileges as merely one type of state interference with free markets and the free circulation of books and ideas. In place of Diderot's perpetual natural right, Condorcet sketched out a regime that encourages production and distribution by granting the minimum rights necessary for progress. 64 Different as they are, these two sides share a common ground. They both focus, though for different reasons, on "expression"--the imprimatur of the author's unique human spirit on the ideas and facts that he or she transmits. It is this "original expression" that modern copyright and the modern droits d'auteur actually cover. In today's copyright law, the facts and ideas in an author's work proceed immediately into the public domain. In other work, I have argued that by confining the property right tightly to the "original expression" stemming from the unique personality of an individual author the law seems to accomplish a number of things simultaneously. It provides 65 a conceptual basis for partial, limited property rights, without completely collapsing the notion of property into the idea of a temporary, limited, utilitarian state grant, revocable at will. [At the same time it offers] a moral and philosophical justification for fencing in the commons, giving the author property in something built from the resources of the public domain--language, culture, genre, scientific community, or what have you. If one makes originality of spirit the assumed feature of authorship and the touchstone for property rights, one can see the author as creating something entirely new--not recombining the resources of the commons.47 66 That is an account of the romantic theory of authorship in the context of contemporary Anglo-American copyright law. But when one looks at the history of the French droits d'auteur tradition, it is striking how well those words describe that system as well. When the French legislature finally produced a law of authors' rights it turned out, in Hesse's words, to reflect "an epistemologically impure and unstable legal synthesis that combined an instrumentalist notion of the public good with a theory of authorship based on natural rights." 67 Although it drew on a Diderotist rhetoric of the sanctity of individual creativity as an inviolable right, it did not rigorously respect the conclusions Diderot drew from this position. In contrast to the privilège d'auteur of 1777, the law did not recognize the author's claim beyond his lifetime but consecrated the notion, advanced first by Pierre Manuel to defend his edition of Mirabeau, that the only true heir to an author's work was the nation as a whole. This notion of a public domain, of democratic access to a common cultural inheritance on which no particular claim could be made, bore the traces not of Diderot, but of Condorcet's faith that truths were given in nature and, although mediated through individual minds, belonged ultimately to all. Progress in human understanding depended not on private knowledge claims, but on free and equal access to enlightenment. An author's property rights were conceived as recompense for his service as an agent of enlightenment through publication of his ideas. The law of 1793 accomplished this task of synthesis through political negotiation rather than philosophical reasoning--that is, by refashioning the political identity of the author in the first few years of the Revolution from a privileged creature of the absolutist police state into a servant of public enlightenment.48 68 Hesse argues that this instability would continue through the revolutionary period. I agree; indeed I would argue that it does so to the present day. Why? The answer is simple. The moral rights view simply proved too much. Without a limiting principle--of time, or scope, or effect--it seemed to presage a perpetual and expansive control of expressive creations, and perhaps of inventions. Our intuition that this is a bad idea comes from our intuitive understanding that "Poetry can only be made out of other poems; novels out of other novels. All of this was much clearer before the assimilation of literature to private enterprise."49 69 This is the flip side of the arguments that Diderot and later Hugo put forward. Perhaps the romantic author does not create out of thin air. Perhaps he or she is deeply embedded in a literary, musical, cultural, or scientific tradition that would not flourish if treated as a set of permanently walled private plots. Even within the tradition, we see a recognition that the continuing progress of enlightenment and the ssacred genius of authors might both require a certain level of freedom in knowledge inputs and a certain level of control over knowledge outputs. We see also the recognition that these two requirements are in fundamental tension. When it comes to reconciling that tension we must turn in part to utilitarian effects. In short, we should pay attention to Jefferson and Macaulay and Condorcet, not just because their thoughts shaped the legal and philosophical traditions in which we now work--though that is particularly true in the case of the United States--but because they were right, or at least more right than the alternative. 70 Of course, we could build a culture around a notion of natural, absolute, and permanent rights to invention and expression. It is not a world many of us would want to live in. There are exceptions of course. In a recent New York Times op-ed, Mark Helprin--author of Winter's Tale--argued that intellectual property should become perpetual.50 After all, rights in real estate or personal property do not expire--though their owners might. Why is it that copyrights should "only" last for a lifetime plus seventy additional years, or patents for a mere twenty? Mr. Helprin expresses respect for the genius of the framers, but is unmoved by their firm command that rights be granted only for "limited times." He concludes that it was a misunderstanding. Jefferson did not realize that while ideas cannot be owned, their expression can. What's more, the framers were misled by their rustic times. "No one except perhaps Hamilton or Franklin might have imagined that services and intellectual property would become primary fields of endeavor and the chief engines of the economy. Now they are, and it is no more rational to deny them equal status than it would have been to confiscate farms, ropewalks and other forms of property in the 18th century." Poor Jefferson. How lucky we are to have Mr. Helprin to remedy the consequences of his lack of vision. 71 Or perhaps not. Think of the way that Jefferson traced the origins of the mechanical arts used in the elevators and hopper- boys all the way back to ancient Persia. (In Mr. Helprin's utopia, presumably, a royalty stream would run to Cyrus the Great's engineers.) Jefferson's point was that for the process of invention to work, we need to confine narrowly the time and scope of the state-provided monopoly, otherwise further inventions would become impossible. Each process or part of a new invention would risk infringing a myriad of prior patents on its subcomponents. Innovation would strangle in a thicket of conflicting monopolies with their roots vanishing back in time. Presumably the title of Mr. Helprin's excellent novel would require clearance from Shakespeare's heirs. 72 Of course, one could construct a more modest Lockean idea of intellectual property51 --building on the notion of "enough and as good" left over for others and drawing the limits tightly enough to avoid the worst of Mr. Helprin's excesses. But as one attempts to do this systematically, the power of the Jeffersonian vision becomes all the more apparent--at least as a starting place. 73 The Jefferson Warning will play an important role in this book. But my arguments here have implications far beyond Jefferson's time, country, or constitutional tradition. In the last analysis, I hope to convince you of the importance of the Jefferson Warning or the views of Macaulay not because they are famous authorities and revered thinkers or because they framed constitutions or debated legislation. I wish to convince you that their views are important because they encapsulate neatly an important series of truths about intellectual property. We should listen to the Jefferson Warning not because it is prestigious but because of its insight. As the Diderot-Condorcet debates point out, the questions on which Jefferson and Macaulay focused do not disappear merely because one embraces a philosophy of moral rights--if anything, they become more pressing, particularly when one comes to define the limits of intellectual property in scope and time. I ask that those readers who remain leery of the Jeffersonian focus concentrate on that last issue. In an era when we have been expanding intellectual property rights relentlessly, it is a crucial one. If the Jefferson Warning produces in my unconvinced reader even a slight queasiness about the likely effects of such a process of expansion, it will have done its job--though in fact the tradition it represented was much richer than a simple utilitarian series of cautions. 74 A TRADITION OF SKEPTICAL MINIMALISM 75 Eighteenth- and nineteenth-century intellectual property debates went beyond Macaulay's antimonopolist focus on price, access, quality, and control of the nation's literary heritage. While Macaulay is the best-remembered English skeptic from the 1840s, there were other, more radical skeptics who saw copyright primarily as a "tax on literacy" or a "tax on knowledge," identical in its effects to the newspaper stamp taxes.52 This was a time when mass literacy and mass education were the hotly debated corollaries to the enlargement of the franchise. The radical reformers looked with hostility on anything that seemed likely to raise the cost of reading and thus continue to restrict political and social debate to the wealthier classes. Macaulay worried about a world in which "a copy of Clarissa would . . . [be] as rare as an Aldus or a Caxton."53 His more radical colleagues saw copyright--to use our ugly jargon rather than theirs--as one of the many ways in which state communications policy is set and the communicative landscape tilted to favor the rich and powerful.54 Macaulay worried about the effects of monopoly on literature and culture. All of them worried about the effects of copyright on democracy, on speech, on education. In the world of the Internet, these skeptics too have their contemporary equivalents. 76 Patent law also attracted its share of attacks in the mid- nineteenth century. A fusillade of criticism, often delivered by economists and cast in the language of free trade, portrayed the patent system as actively harmful. 77 At the annual meeting of the Kongress deutscher Volkswirthe held in Dresden, September 1863, the following resolution was adopted "by an overwhelming majority": "Considering that patents hinder rather than further the progress of invention; that they hamper the prompt general utilization of useful inventions; that on balance they cause more harm than benefit to the inventors themselves and, thus, are a highly deceptive form of compensation; the Congress of German Economists resolves: that patents of invention are injurious to common welfare."55 78 In the Netherlands, the patent system was actually abolished in 1869 as a result of such criticisms. Observers in a number of other countries, including Britain, concluded that their national patent systems were doomed. Various proposals were made to replace patents, with state-provided prizes or bounties to particularly useful inventions being the most popular.56 79 These snippets are hardly sufficient to constitute any kind of survey of critical reactions to intellectual property systems, but I believe that nevertheless they give us some sense of typical debates. What do these debates tell us? 80 From the early days of intellectual property as we know it now, the main objections raised against it were framed in the language of free trade and "anti-monopoly." In the United States, the founding generation of intellectuals had been nurtured on the philosophy of the Scottish Enlightenment and the history of the struggle against royal monopolies. They saw the arguments in favor of intellectual property but warned again and again of the need to circumscribe both its term and its scope. This is the point at the heart of Jefferson's letter. This is why he insisted that we understand the policy implications of the differences between tangible property and ideas, which "like fire" are "expansible over all space, without lessening their density in any point." 81 What were the concerns of these early critics? They worried about intellectual property producing artificial scarcity, high prices, and low quality. They insisted that the benefits of each incremental expansion of intellectual property be weighed against its costs. Think of Macaulay discussing Johnson's preference for a shin of beef rather than another slice of postmortem copyright protection. They worried about its justice; given that we all learn from and build on the past, do we have a right to carve out our own incremental innovations and protect them by intellectual property rights?57 Price aside, they also worried that intellectual property (especially with a lengthy term) might give too much control to a single individual or corporation over some vital aspect of science and culture. In more muted fashion, they discussed the possible effects that intellectual property might have on future innovation. The most radical among them worried about intellectual property's effects on political debate, education, and even control of the communications infrastructure, though they did not use that particular phrase. But the overwhelming theme was the promotion of free trade and a corresponding opposition to monopolies. 82 Now if we were to stop here and simply require that today's policy makers, legislators, and judges recite the Jefferson Warning before they rush off to make new intellectual property rules for the Internet and the genome, we would have accomplished a great deal. National and international policy makers are keen to set the "rules of the road for the digital age." If they would momentarily pause their excited millenarian burbling and read the points scratched out with a quill pen in 1813, or delivered (without PowerPoint support) on the floor of the House of Commons in the 1840s, we would be better off. Everyone is beginning to understand that in the world of the twenty-first century the rules of intellectual property are both vital and contentious. How good it would be then if our debate on intellectual property policy were as vigorous and as informed as the debates of the nineteenth century. (Though we might hope it would also be more democratic.) 83 And yet . . . there is much that is missing from the skepticism of the eighteenth and nineteenth centuries and much that remains unclear. Look at the structure of these comments; they are framed as criticisms of intellectual property rather than defenses of the public domain or the commons, terms that simply do not appear in the debates. There is no real discussion of the world of intellectual property's outside, its opposite. Most of these critics take as their goal the prevention or limitation of an "artificial" monopoly; without this monopoly our goal is to have a world of--what? The assumption is that we will return to a norm of freedom, but of what kind? Free trade in expression and innovation, as opposed to monopoly? Free access to expression and innovation, as opposed to access for pay? Or free access to innovation and expression in the sense of not being subject to the right of another person to pick and choose who is given access, even if all have to pay some flat fee? Or is it common ownership and control that we seek, including the communal right to forbid certain kinds of uses of the shared resource? The eighteenth- and nineteenth-century critics brushed over these points; but to be fair, we continue to do so today. The opposite of property, or perhaps we should say the opposites of property, are much more obscure to us than property itself. 84 For the most part, the antimonopolist view of intellectual property makes a simple case. Monopolies are bad. Have as few as possible and make them as narrow and as short as possible. This is a fine principle, but it falls short of an affirmative explanation and defense of the role of the public domain or the commons in enabling creativity, culture, and science. That is a shame because just as intellectual property is different from tangible property, so too is its opposite, its outside. 85 What are those opposites? The two major terms in use are "the public domain" and "the commons." Both are used in multiple ways--probably a good thing. The public domain is material that is not covered by intellectual property rights. Material might be in the public domain because it was never capable of being owned. Examples would be the English language or the formulae of Newtonian physics. Alternatively, something might be in the public domain because rights have expired. The works of Shakespeare or the patents over powered flight are examples. 86 Some definitions of the public domain are more granular. They focus not only on complete works but on the reserved spaces of freedom inside intellectual property. The public domain would include the privilege to excerpt short quotations in a review. This vision is messier, but more instructive. If one uses a spatial metaphor, the absolutist vision is a tessellated map. Areas of private property are neatly delineated from areas of the public domain. Mozart's plot sits next to that of Britney Spears; one public, the other private. In the granular view, the map is more complex. Ms. Spears' plot is cut through with rights to make fair use, as well as with limitations on ownership of standard themes. Instead of the simple tiled map, the granular vision has private plots with public roads running through them. 87 In popular discussion, we tend to use the absolutist view of both property and the public domain. Lawyers prefer the more complex view of property and are coming slowly to have a similarly complex view of the public domain. That is the definition I will be using. 88 The term "commons" is generally used to denote a resource over which some group has access and use rights--albeit perhaps under certain conditions. It is used in even more ways than the term "public domain." The first axis along which definitions of the term "commons" vary is the size of the group that has access rights. Some would say it is a commons only if the whole society has access. That is the view I will take here. 89 The other difference between public domain and commons is the extent of restrictions on use. Material in the public domain is free of property rights. You may do with it what you wish. A commons can be restrictive. For example, some open source software makes your freedom to modify the software contingent on the condition that your contributions, too, will be freely open to others. I will discuss this type of commons in Chapter 8. 90 So these are working definitions of public domain and commons. But why should we care? Because the public domain is the basis for our art, our science, and our self-understanding. It is the raw material from which we make new inventions and create new cultural works. Why is it so important? Let us start with the dry reasons. 91 Information and innovation are largely nonrival and nonexcludable goods. This is Jefferson's point, though expressed in less graceful language. It has some interesting corollaries. Information is hard to value until you have it, but once you have it, how can you dispossess yourself of it? The apple can be taken back by the merchant if you decide not to buy. The facts or the formulae cannot. The moment when you might have decided to pay or not to pay is already over. The great economist Kenneth Arrow formalized this insight about information economics,58 and it profoundly shapes intellectual property policy. (To a large extent, for example, the requirement of "patent disclosure" attempts to solve this problem. I can read all about your mousetrap but I am still forbidden from using it. I can decide whether or not to license your design at that point.) But for all the material in the public domain, where no intellectual property right is necessary, this point is solved elegantly by having the information be "free as the air to common use." All of us can use the same store of information, innovation, and free culture. It will be available at its cost of reproduction--close to zero--and we can all build upon it without interfering with each other. Think of the English language, basic business methods, tables of logarithms, the Pythagorean theorem, Shakespeare's insights about human nature, the periodic table, Ohm's law, the sonnet form, the musical scale. 92 Would you have paid to purchase access to each of these? I might tell you that English was a superior communication tool--a really good command language for your cognitive operating system. There could be levels of access with corresponding prices. Would you pay to get access to "English Professional Edition"? We can certainly imagine such a way of organizing languages. (To some extent, scribal conventions operated this way. The languages of the professions still do. One paid for access to "law French" in the common law courts of England. One pays for an interpreter of contemporary legal jargon in today's legal system. But even there the language is free to the autodidact.) We can imagine language, scientific knowledge, basic algebra, the tonic scale, or the classics of four-hundred-year-old literature all being available only as property. Those who had the highest "value for use" would purchase them. Those who did not value them highly--whether because they could not know what could be built with them until they had done so or because they did not have the money--would not. What would this world, this culture, this science, this market look like? 93 It would probably be very inefficient, the economists tell us. Perfect information is a defining feature of the perfect market. The more commodified and restricted our access to information, the less efficient the operation of the market, the more poorly it allocates resources in our society. (The permanent and in some sense insoluble tension between the need to provide incentives to generate information, thus raising its cost, and the need to have access to perfect information for efficiency is the central feature of our intellectual property policy.)59 When we commodify too much we actually undermine creativity, since we are raising the price of the inputs for future creations--which might themselves be covered by intellectual property rights. But "inefficient" is too bloodless a way to describe this world. It would be awful. 94 Our markets, our democracy, our science, our traditions of free speech, and our art all depend more heavily on a public domain of freely available material than they do on the informational material that is covered by property rights. The public domain is not some gummy residue left behind when all the good stuff has been covered by property law. The public domain is the place we quarry the building blocks of our culture. It is, in fact, the majority of our culture. Or at least it has been. 95 I deliberately gave easy examples. It is obvious how unnecessary but also how harmful it would be to extend property rights to language, to facts, to business methods and scientific algorithms, to the basic structures of music, to art whose creators are long dead. It is obvious that this would not produce more innovation, more debate, more art, more democracy. But what about the places where the value of the public domain is not obvious? 96 What if we were actually moving to extend patents to business methods, or intellectual property rights to unoriginal compilations of facts? What if we had locked up most of twentieth-century culture without getting a net benefit in return? What if the basic building blocks of new scientific fields were being patented long before anything concrete or useful could be built from them? What if we were littering our electronic communication space with digital barbed wire and regulating the tiniest fragments of music as if they were stock certificates? What if we were doing all this in the blithe belief that more property rights mean more innovation? The story of this book is that we are. 97 The Jefferson Warning is important. It is, however, just a warning. While it would be excellent to print it on pocket cards and hand it to our elected representatives, that alone will not solve the most pressing problems we face. In the chapters that follow, I shall try to go further. In Chapter 3, I set the process of expansion we are engaged in--our "second enclosure movement"--in perspective by comparing it to the original enclosures of the grassy commons of old England. In Chapter 4, I jump from the world of the fifteenth or nineteenth century to the world of the twenty-first, from elevators and grain hoppers to video recorders, the Internet, and file-sharing services. I use the story of several key legal disputes to illustrate a broader history--the history of intellectual property's struggle with communications technologies that allow people to copy more cheaply. Strangely enough, the Jefferson Warning will be crucial in understanding the debate over copyright online and, in particular, in understanding the fear that drives our current policy making, a fear I refer to as the Internet Threat. Chapter 3: The Second Enclosure Movement 1 The law locks up the man or woman Who steals the goose from off the common But leaves the greater villain loose Who steals the common from off the goose. 2 The law demands that we atone When we take things we do not own But leaves the lords and ladies fine Who take things that are yours and mine. 3 The poor and wretched don't escape If they conspire the law to break; This must be so but they endure Those who conspire to make the law. 4 The law locks up the man or woman Who steals the goose from off the common And geese will still a common lack Till they go and steal it back. [Anon.]1 5 In fits and starts from the fifteenth to the nineteenth century, the English "commons" was "enclosed." 2 Enclosure did not necessarily mean physical fencing, though that could happen. More likely, the previously common land was simply converted into private property, generally controlled by a single landholder. 6 The poem that begins this chapter is the pithiest condemnation of the process. It manages in a few lines to criticize double standards, expose the controversial nature of property rights, and take a slap at the legitimacy of state power. And it does this all with humor, without jargon, and in rhyming couplets. Academics should take note. Like most criticisms of the enclosure movement, the poem depicts a world of rapacious, state-aided "privatization," a conversion into private property of something that had formerly been common property or perhaps had been outside the property system altogether. One kind of "stealing" is legal, says the poet, because the state changes the law of property to give the "lords and ladies" a right over an area formerly open to all. But let a commoner steal something and he is locked up. 7 The anonymous author was not alone in feeling indignant. Thomas More (one of only two saints to write really good political theory) made similar points, though he used sheep rather than geese in his argument. Writing in the sixteenth century, he had argued that enclosure was not merely unjust in itself but harmful in its consequences: a cause of economic inequality, crime, and social dislocation. In a wonderfully bizarre passage he argues that sheep are a principal cause of theft. Sheep? Why, yes. 8 [Y]our sheep that were wont to be so meek and tame, and so small eaters, now, as I hear say, be become so great devourers and so wild, that they eat up, and swallow down the very men themselves. They consume, destroy, and devour whole fields, houses, and cities. 9 Who were these sheep? Bizarre Dolly-like clones? Transgenic killer rams? No. More meant only that under the economic lure of the wool trade, the "noblemen and gentlemen" were attempting their own enclosure movement. 10 [They] leave no ground for tillage, they enclose all into pastures; they throw down houses; they pluck down towns, and leave nothing standing, but only the church to be made a sheep- house. . . . Therefore that one covetous and insatiable cormorant and very plague of his native country may compass about and enclose many thousand acres of ground together within one pale or hedge, the husbandmen be thrust out of their own.3 11 The sheep devour all. The dispossessed "husbandmen" now find themselves without land or money and turn instead to theft. In More's vision, it is all very simple. Greed leads to enclosure. Enclosure disrupts the life of the poor farmer. Disruption leads to crime and violence. 12 Writing 400 years later, Karl Polanyi echoes More precisely. He calls the enclosure movement "a revolution of the rich against the poor" and goes on to paint it in the most unflattering light. "The lords and nobles were upsetting the social order, breaking down ancient law and custom, sometimes by means of violence, often by pressure and intimidation. They were literally robbing the poor of their share in the common. . . ." 4 And turning them to "beggars and thieves." The critics of enclosure saw other harms too, though they are harder to classify. They bemoaned the relentless power of market logic to migrate to new areas, disrupting traditional social relationships and perhaps even views of the self, or the relationship of human beings to the environment. Fundamentally, they mourned the loss of a form of life. 13 So much for the bad side of the enclosure movement. For many economic historians, everything I have said up to now is the worst kind of sentimental bunk, romanticizing a form of life that was neither comfortable nor noble, and certainly not very egalitarian. The big point about the enclosure movement is that it worked; this innovation in property systems allowed an unparalleled expansion of productive possibilities. 5 By transferring inefficiently managed common land into the hands of a single owner, enclosure escaped the aptly named "tragedy of the commons." It gave incentives for large-scale investment, allowed control over exploitation, and in general ensured that resources could be put to their most efficient use. Before the enclosure movement, the feudal lord would not invest in drainage systems, sheep purchases, or crop rotation that might increase yields from the common--he knew all too well that the fruits of his labor could be appropriated by others. The strong private property rights and single-entity control that were introduced in the enclosure movement avoid the tragedies of overuse and underinvestment: more grain will be grown, more sheep raised, consumers will benefit, and fewer people will starve in the long run. 6 14 If the price of this social gain is a greater concentration of economic power, the introduction of market forces into areas where they previously had not been so obvious, or the disruption of a modus vivendi with the environment--then, enclosure's defenders say, so be it! In their view, the agricultural surplus produced by enclosure helped to save a society devastated by the mass deaths of the sixteenth century. Those who weep over the terrible effects of private property should realize that it literally saves lives. 15 Now it is worth noting that while this view was once unchallenged, 7 recent scholarship has thrown some doubts on the effects of enclosure on agricultural production. 8 Some scholars argue that the commons was actually better run than the defenders of enclosure admit. 9 Thus, while enclosure did produce the changes in the distribution of wealth that so incensed an earlier generation of critical historians, they argue that there are significant questions about whether it led to greater efficiency or innovation. The pie was carved up differently, but did it get bigger? The debate about these issues is little known, however, outside the world of economic historians. "Everyone" knows that a commons is by definition tragic and that the logic of enclosure is as true today as it was in the fifteenth century. I will not get involved in this debate. Assume for the sake of argument that enclosure did indeed produce a surge in agriculture. Assume, in other words, that converting the commons into private property saved lives. This is the logic of enclosure. It is a powerful argument, but it is not always right. 16 This is all very well, but what does it have to do with intellectual property? I hope the answer is obvious. The argument of this book is that we are in the middle of a second enclosure movement. While it sounds grandiloquent to call it "the enclosure of the intangible commons of the mind," in a very real sense that is just what it is. 10 True, the new state- created property rights may be "intellectual" rather than "real," but once again things that were formerly thought of as common property, or as "uncommodifiable," or outside the market altogether, are being covered with new, or newly extended, property rights. 17 Take the human genome as an example. Again, the supporters of enclosure have argued that the state was right to step in and extend the reach of property rights; that only thus could we guarantee the kind of investment of time, ingenuity, and capital necessary to produce new drugs and gene therapies. 11 To the question, "Should there be patents over human genes?" the supporters of enclosure would answer that private property saves lives. 12 The opponents of enclosure have claimed that the human genome belongs to everyone, that it is literally the common heritage of humankind, that it should not and perhaps in some sense cannot be owned, and that the consequences of turning over the human genome to private property rights will be dreadful, as market logic invades areas which should be the farthest from the market. In stories about stem cell and gene sequence patents, critics have mused darkly about the way in which the state is handing over monopoly power to a few individuals and corporations, potentially introducing bottlenecks and coordination costs that slow down innovation. 13 18 Alongside these accounts of the beneficiaries of the new property scheme run news stories about those who were not so fortunate, the commoners of the genetic enclosure. Law students across America read Moore v. Regents of University of California, a California Supreme Court case deciding that Mr. Moore had no property interest in the cells derived from his spleen. 14 The court tells us that giving private property rights to "sources" would slow the freewheeling practice researchers have of sharing their cell lines with all and sundry. 15 The doctors whose inventive genius created a billion- dollar cell line from Mr. Moore's "naturally occurring raw material," by contrast, are granted a patent. Private property rights here, by contrast, are a necessary incentive to research. 16 Economists on both sides of the enclosure debate concentrate on the efficient allocation of rights. Popular discussion, on the other hand, doubtless demonstrating a reprehensible lack of rigor, returns again and again to more naturalistic assumptions such as the essentially "common" quality of the property involved or the idea that one owns one's own body. 17 19 The genome is not the only area to be partially "enclosed" during this second enclosure movement. The expansion of intellectual property rights has been remarkable--from business method patents, to the Digital Millennium Copyright Act, to trademark "anti-dilution" rulings, to the European Database Protection Directive. 18 The old limits to intellectual property rights--the antierosion walls around the public domain--are also under attack. The annual process of updating my syllabus for a basic intellectual property course provides a nice snapshot of what is going on. I can wax nostalgic looking back to a five- year-old text, with its confident list of subject matter that intellectual property rights could not cover, the privileges that circumscribed the rights that did exist, and the length of time before a work falls into the public domain. In each case, the limits have been eaten away. 20 HOW MUCH OF THE INTANGIBLE COMMONS SHOULD WE ENCLOSE? 21 So far I have argued that there are profound similarities between the first enclosure movement and our contemporary expansion of intellectual property, which I call the second enclosure movement. Once again, the critics and proponents of enclosure are locked in battle, hurling at each other incommensurable claims about innovation, efficiency, traditional values, the boundaries of the market, the saving of lives, the loss of familiar liberties. Once again, opposition to enclosure is portrayed as economically illiterate: the beneficiaries of enclosure telling us that an expansion of property rights is needed in order to fuel progress. Indeed, the post-Cold War "Washington consensus" is invoked to claim that the lesson of history itself is that the only way to get growth and efficiency is through markets; property rights, surely, are the sine qua non of markets. 19 22 This faith in enclosure is rooted in a correspondingly deep pessimism about the possibility of managing resources that are either commonly owned or owned by no one. If all have the right to graze their herds on common land, what incentive does anyone have to hold back? My attempt to safeguard the future of the pasture will simply be undercut by others anxious to get theirs while the getting is good. Soon the pasture will be overgrazed and all our flocks will go hungry. In a 1968 article, Garrett Hardin came up with the phrase that would become shorthand for the idea that there were inherent problems with collectively managed resources: "the tragedy of the commons." 20 The phrase, more so than the actual arguments in his article, has come to exercise considerable power over our policies today. Private property--enclosure--is portrayed as the happy ending for the tragedy of the commons: when policy makers see a resource that is unowned, they tend to reach reflexively for "the solving idea of property." According to this view, enclosure is not a "revolution of the rich against the poor," it is a revolution to save the waste of socially vital resources. To say that some social resource is not owned by an individual, that it is free as the air to common use, is automatically to conjure up the idea that it is being wasted. 23 But if there are similarities between our two enclosures, there are also profound dissimilarities; the networked commons of the mind has many different characteristics from the grassy commons of Old England. 21 I want to concentrate here on two key differences between the intellectual commons and the commons of the first enclosure movement, differences that should lead us to question whether this commons is truly tragic and to ask whether stronger intellectual property rights really are the solution to our problems. These differences are well known, indeed they are the starting point for most intellectual property law, a starting point that Jefferson and Macaulay have already laid out for us. Nevertheless, reflection on them might help to explain both the problems and the stakes in the current wave of expansion. 24 Unlike the earthy commons, the commons of the mind is generally "nonrival." Many uses of land are mutually exclusive: if I am using the field for grazing, it may interfere with your plans to use it for growing crops. By contrast, a gene sequence, an MP3 file, or an image may be used by multiple parties; my use does not interfere with yours. To simplify a complicated analysis, this means that the threat of overuse of fields and fisheries is generally not a problem with the informational or innovational commons. 22 Thus, one type of tragedy of the commons is avoided. 25 The concerns in the informational commons have to do with a different kind of collective action problem: the problem of incentives to create the resource in the first place. The difficulty comes from the assumption that information goods are not only nonrival (uses do not interfere with each other), but also nonexcludable (it is impossible, or at least hard, to stop one unit of the good from satisfying an infinite number of users at zero marginal cost). Pirates will copy the song, the mousetrap, the drug formula, the brand. The rest of the argument is well known. Lacking an ability to exclude, creators will be unable to charge for their creations; there will be inadequate incentives to create. Thus, the law must step in and create a limited monopoly called an intellectual property right. 26 How about the argument that the increasing importance of information-intensive products to the world economy means that protection must increase? Must the information commons be enclosed because it is now a more important sector of economic activity? 23 This was certainly one of the arguments for the first enclosure movement. For example, during the Napoleonic Wars enclosure was defended as a necessary method of increasing the efficiency of agricultural production, now a vital sector of a wartime economy. 27 Here we come to another big difference between the commons of the mind and the earthy commons. As has frequently been pointed out, information products are often made up of fragments of other information products; your information output is someone else's information input. 24 These inputs may be snippets of code, discoveries, prior research, images, genres of work, cultural references, or databases of single nucleotide polymorphisms--each is raw material for future innovation. Every increase in protection raises the cost of, or reduces access to, the raw material from which you might have built those future products. The balance is a delicate one; one Nobel Prize-winning economist has claimed that it is actually impossible to strike that balance so as to produce an informationally efficient market. 25 28 Whether or not it is impossible in theory, it is surely a difficult problem in practice. In other words, even if enclosure of the arable commons always produced gains (itself a subject of debate), enclosure of the information commons clearly has the potential to harm innovation as well as to support it. 26 More property rights, even though they supposedly offer greater incentives, do not necessarily make for more and better production and innovation--sometimes just the opposite is true. It may be that intellectual property rights slow down innovation, by putting multiple roadblocks in the way of subsequent innovation. 27 Using a nice inversion of the idea of the tragedy of the commons, Heller and Eisenberg referred to these effects--the transaction costs caused by myriad property rights over the necessary components of some subsequent innovation--as "the tragedy of the anticommons." 28 29 In short, even if the enclosure movement was a complete success, there are important reasons to believe that the intangible world is less clearly a candidate for enclosure, that we should pause, study the balance between the world of the owned and the world of the free, gather evidence. After all, even in physical space, "common" property such as roads increases the value of the surrounding private tracts. If there are limits to the virtues of enclosure even there, how much more so in a world of intangible and nonrival goods, which develop by drawing on prior creations? Yet the second enclosure movement proceeds confidently nevertheless--with little argument and less evidence. 30 To be sure, there is a danger of overstatement. The very fact that the changes have been so one-sided makes it hard to resist exaggerating their impact. In 1918, Justice Brandeis confidently claimed that "[t]he general rule of law is, that the noblest of human productions--knowledge, truths ascertained, conceptions, and ideas--become, after voluntary communication to others, free as the air to common use." 29 That baseline--intellectual property rights are the exception rather than the norm; ideas and facts must always remain in the public domain--is still supposed to be our starting point. 30 It is, however, under attack. 31 Both overtly and covertly, the commons of facts and ideas is being enclosed. Patents are increasingly stretched to cover "ideas" that twenty years ago all scholars would have agreed were unpatentable. 31 Most troubling of all are the attempts to introduce intellectual property rights over mere compilations of facts. 32 If U.S. intellectual property law had an article of faith, it was that unoriginal compilations of facts would remain in the public domain, that this availability of the raw material of science and speech was as important to the next generation of innovation as the intellectual property rights themselves. 33 The system would hand out monopolies in inventions and in original expression, while the facts below (and ideas above) would remain free for all to build upon. But this premise is being undermined. Some of the challenges are subtle: in patent law, stretched interpretations of novelty and nonobviousness allow intellectual property rights to move closer and closer to the underlying data layer; gene sequence patents come very close to being rights over a particular discovered arrangement of data--C's, G's, A's, and T's. 34 Other challenges are overt: the European Database Protection Directive did (and various proposed bills in the United States would) create proprietary rights over compilations of facts, often without even the carefully framed exceptions of the copyright scheme, such as the usefully protean category of fair use. 32 The older strategy of intellectual property law was a "braided" one: thread a thin layer of intellectual property rights around a commons of material from which future creators would draw. 35 Even that thin layer of intellectual property rights was limited so as to allow access to the material when that was necessary to further the goals of the system. Fair use allows for parody, commentary, and criticism, and also for "decompilation" of computer programs so that Microsoft's competitors can reverse engineer Word's features in order to make sure their program can convert Word files. It may sound paradoxical, but in a very real sense protection of the commons was one of the fundamental goals of intellectual property law. 33 In the new vision of intellectual property, however, property should be extended everywhere; more is better. Expanding patentable and copyrightable subject matter, lengthening the copyright term, giving legal protection to "digital barbed wire," even if it is used to prevent fair use: each of these can be understood as a vote of no confidence in the productive powers of the commons. We seem to be shifting from Brandeis's assumption that the "noblest of human productions are free as the air to common use" to the assumption that any commons is inefficient, if not tragic. 34 The expansion is more than a formal one. It used to be relatively hard to violate an intellectual property right. The technologies of reproduction or the activities necessary to infringe were largely, though not entirely, industrial. Imagine someone walking up to you in 1950, handing you a book or a record or a movie reel, and saying "Quick! Do something the law of intellectual property might forbid." (This, I admit, is a scenario only likely to come to the mind of a person in my line of work.) You would have been hard-pressed to do so. Perhaps you could find a balky mimeograph machine, or press a reel-to-reel tape recorder into use. You might manage a single unauthorized showing of the movie--though to how many people? But triggering the law of intellectual property would be genuinely difficult. Like an antitank mine, it would not be triggered by the footsteps of individuals. It was reserved for bigger game. 35 This was no accident. The law of intellectual property placed its triggers at the point where commercial activity by competitors could undercut the exploitation of markets by the rights holder. Copying, performance, distribution--these were things done by other industrial entities who were in competition with the owner of the rights: other publishers, movie theaters, distributors, manufacturers. In practice, if not theory, the law was predominantly a form of horizontal industry regulation of unfair competition--made by the people in the affected industries for the people in the affected industries. The latter point is worth stressing. Congress would, and still does, literally hand over the lawmaking process to the industries involved, telling them to draft their intra-industry contract in the form of a law, and then to return to Congress to have it enacted. The public was not at the table, needless to say, and the assumption was that to the extent there was a public interest involved in intellectual property law, it was in making sure that the industries involved got their act together, so that the flow of new books and drugs and movies would continue. Members of the public, in other words, were generally thought of as passive consumers of finished products produced under a form of intraindustry regulation that rarely implicated any act that an ordinary person would want, or be able, to engage in. 36 In the world of the 1950s, these assumptions make some sense--though we might still disagree with the definition of the public interest. It was assumed by many that copyright need not and probably should not regulate private, noncommercial acts. The person who lends a book to a friend or takes a chapter into class is very different from the company with a printing press that chooses to reproduce ten thousand copies and sell them. The photocopier and the VCR make that distinction fuzzier, and the networked computer threatens to erase it altogether. 37 So how are things different today? If you are a person who routinely uses computers, the Internet, or digital media, imagine a day when you do not create--intentionally and unintentionally--hundreds of temporary, evanescent copies. (If you doubt this, look in the cache of your browser.) Is there a day when you do not "distribute" or retransmit fragments of articles you have read, when you do not seek to share with friends some image or tune? Is there a day when you do not rework for your job, for your class work, or simply for pastiche or fun, some of the digital material around you? In a networked society, copying is not only easy, it is a necessary part of transmission, storage, caching, and, some would claim, even reading. 36 38 As bioinformatics blurs the line between computer modeling and biological research, digital production techniques blur the lines between listening, editing, and remaking. "Rip, mix, and burn," says the Apple advertisement. It marks a world in which the old regime of intellectual property, operating upstream as a form of industrial competition policy, has been replaced. Intellectual property is now in and on the desktop and is implicated in routine creative, communicative, and just plain consumptive acts that each of us performs every day. Suddenly, the triggers of copyright--reproduction, distribution--can be activated by individual footsteps. 39 Of course, we would hope that in your daily actions you scrupulously observed the rights--all the rights--of the companies that have interests in the texts, tunes, images of celebrities, trademarks, business method patents, and fragments of computer code you dealt with. Did you? Can you be sure? I teach intellectual property, but I admit to some uncertainty. 40 I would not have imagined that a temporary image of a Web page captured in the cache of my browser counted as a "copy" for the purposes of copyright law. 37 I would have thought that it was fair use for a company to photocopy articles in journals it subscribed to, and paid for, in order to circulate them to its researchers. 38 If a conservative Web site reposted news articles from liberal newspapers with critical commentary, that, too, would have seemed like fair use. 39 I would have thought that it was beneficial competition, and not a trespass, for an electronic "aggregator" to gather together auction prices or airline fares, so as to give consumers more choice. 40 I would not have thought that a search engine that catalogued and displayed in framed format the digital graphics found on the Internet would be sued for infringing the copyrights of the owners of those images. 41 I would not have thought that I might be sued for violating intellectual property law if I tried to compete with a printer company by making toner cartridges that were compatible with its printers. 42 41 The examples go on. I know that the "research exemption" in U.S. patent law is very tightly limited, but I would have laughed if you had told me that even a research university was forbidden from doing research unless that research had no conceivable practical or academic worth--in other words that even in academia, in a project with no commercial goal, the research exemption only covered research that was completely pointless. 43 Why have an exemption at all, in that case? I would have told an academic cryptography researcher that he need not fear legal threats from copyright owners simply for researching and publishing work on the vulnerabilities of copy protection schemes. 44 I would not have thought that one could patent the idea of having an electronic Dutch auction on the Internet, working out the daily prices of a bundle of mutual funds through simple arithmetic, or buying something online with one click. 45 I would have assumed that celebrities' rights to control their images should end with their deaths, and that courts would agree that those rights were tightly limited by the First Amendment. Yet, in each of these cases, I would have been wrong, or at least I might be wrong--enough that a sane person would worry. Not all of the expansive claims eventually triumphed, of course, but some did. Guessing which would and which would not was hard even for me, though, as I said, I teach intellectual property law. You, probably, do not. 42 In 1950 none of this would have mattered. Unless you were in some related business--as a publisher, broadcaster, film distributor, or what have you--it would have been hard for you to trigger the rules of intellectual property law. If you were in such a business, you were probably very familiar with the rules that governed your activities and well represented by corporate counsel who knew them even better. What's more, the rules were neither as complex nor as counterintuitive as they are now. They also did not reach as far. The reach of the rights has been expanded, and their content made more difficult to understand, at the exact moment that their practical effect has been transformed. It is not merely that the triggers of intellectual property law can easily be set off by individual footsteps. There are now many more triggers and their trip wires are harder to see. 43 From the point of view of the content industries, of course, all this is foolishness. It is not some undesirable accident that intellectual property has come to regulate personal, noncommercial activity. It is absolutely necessary. Think of Napster. When individuals engaging in noncommercial activity have the ability to threaten the music or film industry's business plan by engaging in the very acts that copyright law always regulated--namely reproduction and distribution--of course it is appropriate for them, and the networks they "share" on, to be subject to liability. What's more, to the extent that copying becomes cheaper and easier, it is necessary for us to strengthen intellectual property rights. We must meet the greater danger of copying with more expansive rights, harsher penalties, and expanded protections, some of which may indeed have the practical effect of reducing rights that citizens thought they had, such as fair use, low-level noncommercial sharing among personal friends, resale, and so on. Without an increase in private property rights, in other words, cheaper copying will eat the heart out of our creative and cultural industries. I call this claim the Internet Threat. Chapter 4: The Internet Threat 1 The conventional wisdom is that governments respond slowly to technological change. In the case of the Internet, nothing could be further from the truth. In 1994 and 1995, "dot-com" was still a mystical term for many. Most stories about the Internet dealt with sexual predation rather than possibilities of extreme wealth. Internet commerce itself was barely an idea, and some of the most exciting sites on the Web had pictures of coffeepots in university departments far away. ("See," one would proudly say to a technological neophyte friend when introducing him to the wonders of the Net, "the pot is empty and we can see that live from here! This changes everything!") It was an innocent time. Yet the U.S. government was already turning the wheels of intellectual property policy to respond to the threat (and promise) of the Internet. More precisely, they were trying to shape the future of the cumbersomely named "National Information Infrastructure," the official name for the "information superhighway" that it was presumed would replace the "immature" technology of the Net. The government was wrong about that, and about a lot else. 2 The blueprint for new intellectual property policy online came from the Patent and Trademark Office. That office promulgated first a Green Paper and then, after further hearings, a White Paper, on "Intellectual Property and the National Information Infrastructure."1 As policy and legal documents these are in one sense long out of date. Some of their legal arguments were successfully challenged. Some of their most important proposals were rejected, while many others have become law. But as a starting point from which to trace the frame of mind that has come to dominate intellectual property policy online, they are hard to equal. 3 These documents contained proposals that nowadays would be seen as fairly controversial. Internet service providers were said to be "strictly liable" for copyright violations committed by their subscribers; that is to say, they were legally responsible whether or not they knew about the violation or were at fault in any way. Loading a document into your browser's transient cache memory while reading it was said to be making a "copy." There was more: the beginnings of what later became the Digital Millennium Copyright Act,2 making it illegal to cut through the digital fences which content providers put around their products. The attitude toward fair use was particularly revealing. At one point in the White Paper it was hinted that fair use might be a relic of the inconveniences of the analog age, to be discarded now that we could have automated fractional payments for even the most insignificant use.3 (It was noted, however, that some disagreed with this conclusion.) At another point, fair use was described as a "tax" on rights holders and a "subsidy" to those who benefited from it, such as educational institutions.4 The White Paper also suggested that while any potential loss to rights holders caused by the new technology needed to be countered with new rights and new protections, any potential gain to them through the new technology was simply theirs. Potential gain did not offset the need to compensate for potential loss. 4 So what views of intellectual property were we carrying forward into the Internet age? Intellectual property is just like other property. Rights are presumptively absolute. Any limitations on them, such as fair use, are taxes on property owners, subsidies to the society at large. It sounds like a perfect time to administer the Jefferson Warning I sketched out in Chapter 2. After all, Jefferson was specifically warning against each of these errors two hundred years ago. To find them in a student paper would be disappointing--irritating, even. But this document was the blueprint for the intellectual property regime of cyberspace. 5 But do these mistakes matter? How important is it that we get the rules of intellectual property right? To me, a number of my colleagues, some librarians, a few software gurus, the White Paper was more than just a bit of bad policy in a technical field--like a poorly drafted statute about the witnessing of wills, say. When you set up the property rules in some new space, you determine much about the history that follows. Property rules have a huge effect on power relationships and bargaining positions. Think of rules setting out water rights or the right to drive cattle over homesteaders' land in the American West. But they also are part of a larger way of seeing the world; think of the early-twentieth-century rules treating unions as "conspiracies in restraint of trade" or the Supreme Court decisions that dispossessed the American Indians on the theory that they did not comprehend the concept of property and thus did not "own" the land being taken from them.5 We were at a comparable point in the history of cyberspace. What was being set up here was a vision of economy and culture, a frame of mind about how the world of cultural exchange operates, and eventually a blueprint for our systems of communication. At this stage, the range of possibilities is extremely wide. A lot of different choices could be made, but subsequent changes would be harder and harder as people and companies built their activities around the rules that had been laid down. This was, in short, a tipping point where it was particularly important that we make the right decisions. 6 Conventional political science told us there were a lot of reasons to fear that we would not make the right decisions. The political process was going to be particularly vulnerable to problems of capture by established industries, many of whom would (rightly) see the Internet as a potential threat to their role as intermediaries between artists and creators on the one hand and the public on the other. 7 Intellectual property legislation had always been a cozy world in which the content, publishing, and distribution industries were literally asked to draft the rules by which they would live. The law was treated as a kind of contract between the affected industries. Rationally enough, those industries would wish to use the law not merely to protect their legitimate existing property rights, but to make challenges to their basic business plans illegal. (Imagine what would have happened if we had given the lamp-oil sellers the right to define the rules under which the newfangled electric light companies would operate.) There would be no easy counterweight to these pressures, as Jessica Litman points out in a wonderful set of reflections on copyright lawmaking, because the potential competitors to existing titans were just being born and could thus be strangled safely in their cradles.6 Certainly the public would have little grasp as yet of what was at stake. 8 In any event, when had the public played a role in intellectual property legislation? That kind of law affected businesses with printing presses or TV towers, not normal citizens. It did not help that the legislators were largely both ignorant and distrustful of the technology of the Internet--which was, at the time, thought to be dominated by foreign hackers, suicidal cults, pirates, and sleazy pornographers. (Terrorists and Nigerian spammers would be added to the mix later.) 9 Given an area of law that legislators were happy to hand over to the affected industries and a technology that was both unfamiliar and threatening, the prospects for legislative insight were poor. Lawmakers were assured by lobbyists 10 a) that this was business as usual, that no dramatic changes were being made by the Green or White papers; or b) that the technology presented a terrible menace to the American cultural industries, but that prompt and statesmanlike action would save the day; or c) that layers of new property rights, new private enforcers of those rights, and technological control and surveillance measures were all needed in order to benefit consumers, who would now be able to "purchase culture by the sip rather than by the glass" in a pervasively monitored digital environment. 11 In practice, somewhat confusingly, these three arguments would often be combined. Legislators' statements seemed to suggest that this was a routine Armageddon in which firm, decisive statesmanship was needed to preserve the digital status quo in a profoundly transformative and proconsumer way. Reading the congressional debates was likely to give one conceptual whiplash. 12 To make things worse, the press was--in 1995, at least--clueless about these issues. It was not that the newspapers were ignoring the Internet. They were paying attention--obsessive attention in some cases. But as far as the mainstream press was concerned, the story line on the Internet was sex: pornography, online predation, more pornography. The lowbrow press stopped there. To be fair, the highbrow press was also interested in Internet legal issues (the regulation of pornography, the regulation of online predation) and constitutional questions (the First Amendment protection of Internet pornography). Reporters were also asking questions about the social effect of the network (including, among other things, the threats posed by pornography and online predators). 13 There were certainly important issues within the areas the press was willing to focus on, and I do not mean to trivialize them. I worked with a couple of civil liberties groups in opposing the hapless Communications Decency Act, one of the most poorly drafted pieces of speech regulation ever to come out of Congress.7 It was a palpably unconstitutional statute, eventually struck down by a unanimous Supreme Court.8 Its proposals would have burdened the speech of adults while failing to protect the interests of minors. Reporters loved the topic of the Communications Decency Act. It was about sex, technology, and the First Amendment. It foreshadowed the future of online speech regulation. One could write about it while feeling simultaneously prurient, principled, and prescient: the journalistic trifecta. For law professors who worked on digital issues, the Communications Decency Act was an easy topic to get the public to focus on; we had the reporters and editors calling us, pleading for a quote or an opinion piece. 14 Intellectual property was something quite different. It was occasionally covered in the business pages with the same enthusiasm devoted to changes in derivatives rules. Presented with the proposals in the Green and White Papers, the reporters went looking for opinions from the Software Publishers Association, the Recording Industry Association of America, or the Motion Picture Association of America. This was not bias or laziness--to whom else would they go? Who was on the "other side" of these issues? Remember, all of this occurred before Napster was a gleam in Sean Fanning's eye. Sean Fanning was in middle school. Amazon.com was a new company and "Google" was not yet a verb. 15 In this environment, convincing the legislature or the press that fundamental public choices were implicated in the design of intellectual property rights for the digital world was about as easy as convincing them that fundamental public choices were implicated in the rules of tiddlywinks. My own experience is probably representative. I remember trying to pitch an article on the subject to a charming but uncomprehending opinion page editor at the Washington Post. I tried to explain that decisions about property rules would shape the way we thought about the technology. Would the relatively anonymous and decentralized characteristics of the Internet that made it such a powerful tool for global speech and debate come to be seen as a bug rather than a feature, something to be "fixed" to make the Net safe for protected content? The rules would also shape the economic interests that drove future policy. Would we try to build the system around the model of proprietary content dispensed in tightly controlled chunks? Would fair use be made technologically obsolescent? Would we undercut the various nontraditional methods of innovation, such as free software, before they ever managed to establish themselves? What would become of libraries in the digital world, of the ideal that access to books had important differences from access to Twinkies? After I concluded this lengthy and slightly incoherent cri de Coeur, there was a long pause; then the editor said politely, "Are you sure you couldn't make some of these points about a free speech issue, like the Communications Decency Act, maybe?" 16 I finally placed the piece in the Washington Times,9 which was best known at the time as the only metropolitan newspaper owned by the Unification Church, familiarly referred to as the Moonies. This hardly counted as a direct line to the popular imagination (though the article's mild criticisms elicited an extraordinary reaction from the Clinton administration's lead official on intellectual property policy--throwing me for several weeks into a surreal world of secondhand threats, third-party leaks, and a hilarious back-and-forth in the letters page).10 17 Things were not completely one-sided. An unlikely group of critics had formed: librarians, a few software developers, law professors, some Internet libertarians. Of particular note was the Digital Future Coalition, which grew to represent a broad range of interested groups and industries thanks in part to the prescient analysis and remarkable energy of one of my colleagues, Peter Jaszi.11 Together with Pamela Samuelson, Jessica Litman, and a number of other distinguished legal scholars, Peter turned his considerable intellectual talents to explaining why writers, telecom companies, scientists, manufacturers of consumer electronics, and a host of other groups should be interested in the rules being debated. There had been a series of official hearings in which complaints were carefully collected and just as carefully ignored. This became harder to do as the critics became more numerous and better organized. Nevertheless, the currents were clearly running against them. It would be nice to say that this was merely because of the clubby history of intellectual property legislation, or the difficulty in getting press attention, or the various issues of industry capture and collective action problems. Yet this would be to miss a vital element of the situation. 18 Conventional political science showed that there were structural reasons why the legislative process was likely to succumb to industry capture.12 The reality turned out to be much worse. The real problem was not a political process dominated by cynical power politics, nor an initial absence of critical newspaper coverage, though both of those factors contributed. The real problem was that most of the proponents of the White Paper's policies believed their own arguments so deeply and sincerely that they saw any criticism of those positions as either godless communism or hippy digital anarchism. (Frequently, in fact, they clung to their arguments even when there was fairly strong evidence that they would actually be harming themselves by putting these policies into effect. I will expand on this point later.) More importantly, they succeeded in getting their story about the threats and promises of the digital future accepted as the basis for all discussion of intellectual property policy. It became the organizing set of principles, the master narrative--call it what you will. 19 The heart of the story is beguilingly simple. The Internet makes copying cheaper and does so on an unparalleled global scale. Therefore we must meet the greater danger of illicit copying with more expansive rights, harsher penalties, and expanded protections. True, as I pointed out before, some of these expansions may indeed have the practical effect of reducing rights that citizens thought they had, such as fair use, low- level noncommercial sharing among personal friends, resale, and so on. But without an increase in private property rights, cheaper copying will eat the heart out of our creative and cultural industries. I call this story the Internet Threat. It is a powerful argument and it deserves some explanation. 20 Think back for a moment to the first chapter and the difference between Madame Bovary and the petunia. If the reason for intellectual property rights is the "nonrival" and "nonexcludable" nature of the goods they protect, then surely the lowering of copying and transmission costs implies a corresponding need to increase the strength of intellectual property rights. Imagine a line. At one end sits a monk painstakingly transcribing Aristotle's Poetics. In the middle lies the Gutenberg printing press. Three-quarters of the way along the line is a photocopying machine. At the far end lies the Internet and the online version of the human genome. At each stage, copying costs are lowered and goods become both less rival and less excludable. My MP3 files are available to anyone in the world running Napster. Songs can be found and copied with ease. The symbolic end of rivalry comes when I am playing the song in Chapel Hill, North Carolina, at the very moment that you are both downloading and listening to it in Kazakhstan--now that is nonrival. 21 THE LOGIC OF PERFECT CONTROL 22 My point is that there is a teleology--a theory about how intellectual property law must develop historically--hidden inside the argument I call the Internet Threat. The argument, which is touted endlessly by the content industries--and not without reason--can be reduced to this: The strength of intellectual property rights must vary inversely with the cost of copying. With high copying costs, one needs weak intellectual property rights if any at all. To deal with the monk-copyist, we need no copyright because physical control of the manuscript is enough. What does it matter if I say I will copy your manuscript, if I must do it by hand? How will this present a threat to you? There is no need to create a legal right to exclude others from copying, no need for a "copy right." As copying costs fall, however, the need to exclude increases. To deal with the Gutenberg press, we need the Statute of Anne--the first copyright statute--and the long evolution of copyright it ushered in. 23 But then comes the Internet. To deal with the Internet, we need the Digital Millennium Copyright Act,13 the No Electronic Theft Act,14 the Sonny Bono Copyright Term Extension Act,15 and perhaps even the Collections of Information Antipiracy Act.16 As copying costs approach zero, intellectual property rights must approach perfect control. We must strengthen the rights, lengthen the term of the rights, increase the penalties, and make noncommercial illicit copying a crime. We must move outside the traditional realm of copyright altogether to regulate the technology around the copyrighted material. Companies are surrounding their digital materials with digital fences. We must make it a violation of the law to cut those digital fences, even if you do so to make a "fair use" of the material on the other side. We must prohibit the making of things that can be used as fence-cutters--a prospect that worries researchers on encryption. In the long run, we must get rid of the troublesome anonymity of the Internet, requiring each computer to have an individual ID. We must make click-wrap contracts enforceable, even on third parties, even when you cannot read them before clicking--so that you never actually buy the software, music, movies, and e-books you download, merely "license" them for a narrowly defined range of uses. We must create interlocking software and hardware systems that monitor and control the material played on those systems--so that songs can be licensed to particular computers at particular times. Uses that the owners wish to forbid will actually be impossible, whether they are legal or not. 24 In other words, we must make this technology of the Internet, which was hailed as the great "technology of freedom," into a technology of control and surveillance. The possibility of individuals circulating costless perfect digital copies requires it. It would be facile (if tempting) to say we must remake the Internet to make it safe for Britney Spears. The "Internet Threat" argument is that we must remake the Net if we want digital creativity--whether in music or software or movies or e- texts. And since the strength of the property rights varies inversely with the cost of copying, costless copying means that the remade Net must approach perfect control, both in its legal regime and its technical architecture. 25 Like any attractive but misleading argument, the Internet Threat has a lot of truth. Ask the software company producing expensive, specialized computer-assisted design programs costing thousands of dollars what happens when the program is made available on a "warez" site or a peer-to-peer filesharing network. The upstart computer game company pinning its hopes and its capital on a single new game would tell you the same thing. The easy availability of perfect, costless copies is a danger to all kinds of valuable cultural and economic production. The story of the Internet Threat is not wrong, it is simply dramatically incomplete in lots of ways. Here are two of them. 26 Costless Copying Brings Both Costs and Benefits 27 The Internet does lower the cost of copying and thus the cost of illicit copying. Of course, it also lowers the costs of production, distribution, and advertising, and dramatically increases the size of the potential market. Is the net result a loss to rights holders such that we need to increase protection and control in order to maintain a constant level of incentives? A large, leaky market may actually provide more revenue than a small one over which one's control is much stronger. What's more, the same technologies that allow for cheap copying also allow for swift and encyclopedic search engines--the best devices ever invented for detecting illicit copying. What the Net takes away with one hand, it often gives back with the other. Cheaper copying does not merely mean loss, it also means opportunity. Before strengthening intellectual property rights, we would need to know whether the loss was greater than the gain and whether revised business models and new distribution mechanisms could avoid the losses while capturing more of the gains. 28 But wait, surely theft is theft? If the new technologies enable more theft of intellectual property, must we not strengthen the laws in order to deal with the problem? If some new technology led to a rash of car thefts, we might increase police resources and prison sentences, perhaps pass new legislation creating new crimes related to car theft. We would do all of this even if the technology in question gave car owners significant benefits elsewhere. Theft is theft, is it not? 29 The answer in a word is no. Saying "theft is theft" is exactly the error that the Jefferson Warning is supposed to guard against. We should not assume that intellectual property and material property are the same in all regards. The goal of creating the limited monopoly called an intellectual property right is to provide the minimum necessary incentive to encourage the desired level of innovation. Anything extra is deadweight loss. When someone takes your car, they have the car and you do not. When, because of some new technology, someone is able to get access to the MP3 file of your new song, they have the file and so do you. You did not lose the song. What you may have lost is the opportunity to sell the song to that person or to the people with whom they "share" the file. We should not be indifferent to this kind of loss; it is a serious concern. But the fact that a new technology brings economic benefits as well as economic harm to the creation, distribution, and sale of intellectual property products means that we should pause before increasing the level of rights, changing the architecture of our communications networks, creating new crimes, and so on. 30 Remember, many of the things that the content industries were concerned about on the Internet were already illegal, already subject to suit and prosecution. The question is not whether the Internet should be an intellectual property-free zone; it should not be, is not, and never was. The question is whether, when the content industries come asking for additional or new rights, for new penalties, for the criminalization of certain types of technology, we should take into account the gains that the Internet has brought them, as well as the costs, before we accede to their requests. The answer, of course, is that we should. Sadly, we did not. This does not mean that all of the content industries' attempts to strengthen the law are wrong and unnecessary. It means that we do not know whether they are or not. 31 There is a fairly solid tradition in intellectual property policy of what I call "20/20 downside" vision. All of the threats posed by any new technology--the player piano, the jukebox, the photocopier, the VCR, the Internet--are seen with extraordinary clarity. The opportunities, however, particularly those which involve changing a business model or restructuring a market, are dismissed as phantoms. The downside dominates the field, the upside is invisible. The story of video recorders is the best-known example. When video recorders--another technology promising cheaper copying--first appeared, the reaction of movie studios was one of horror. Their business plans relied upon showing movies in theaters and then licensing them to television stations. VCRs and Betamaxes fit nowhere in this plan; they were seen merely as copyright violation devices. Hollywood tried to have them taxed to pay for the losses that would be caused. Their assumption? Cheaper copying demands stronger rights. 32 Having lost that battle, the movie studios tried to have the manufacturers of the recording devices found liable for contributory copyright infringement; liable, in other words, for assisting the copyright violations that could be carried out by the owners of Sony Betamaxes. This, of course, was exactly the same legal claim that would be made in the Napster case. In the Sony case, however, the movie companies lost. The Supreme Court said that recording of TV programs to "time-shift" them to a more convenient hour was a fair use.17 The movie studios' claims were rejected. 33 Freed from the threat of liability, the price of video recorders continued to fall. They flooded consumers' houses at a speed unparalleled until the arrival of the World Wide Web. All these boxes sitting by TVs now cried out for content, content that was provided by an emerging video rental market. Until the triumph of DVDs, the videocassette rental market made up more than 50 percent of the movie industry's revenues.18 Were losses caused by video recorders? To be sure. Some people who might have gone to see a movie in a theater because the TV schedule was inconvenient could instead record the show and watch it later. Videos could even be shared with friends and families--tattered copies of Disney movies recorded from some cable show could be passed on to siblings whose kids have reached the appropriate age. VCRs were also used for copying that was clearly illicit--large-scale duplication and sale of movies by someone other than the rights holder. A cheaper copying technology definitely caused losses. But it also provided substantial gains, gains that far outweighed the losses. Ironically, had the movie companies "won" in the Sony case, they might now be worse off. 34 The Sony story provides us with some useful lessons--first, this 20/20 downside vision is a poor guide to copyright policy. Under its sway, some companies will invariably equate greater control with profit and cheaper copying with loss. They will conclude, sometimes rightly, that their very existence is threatened, and, sometimes wrongly, that the threat is to innovation and culture itself rather than to their particular way of delivering it. They will turn to the legislature and the courts for guarantees that they can go on doing business in the old familiar ways. Normally, the marketplace is supposed to provide correctives to this kind of myopia. Upstart companies, not bound by the habits of the last generation, are supposed to move nimbly to harvest the benefits from the new technology and to outcompete the lumbering dinosaurs. In certain situations, though, competition will not work: 35 * if the dinosaurs are a cartel strong enough to squelch competition; * if they have enlisted the state to make the threatening technology illegal, describing it as a predatory encroachment on the "rights" of the old guard rather than aggressive competition; * if ingrained prejudices are simply so strong that the potential business benefits take years to become apparent; or * if the market has "locked in" on a dominant standard--a technology or an operating system, say--to which new market entrants do not have legal access. 36 In those situations, markets cannot be counted on to self- correct. Unfortunately, and this is a key point, intellectual property policy frequently deals with controversies in which all of these conditions hold true. 37 Let me repeat this point, because it is one of the most important ones in this book. To a political scientist or market analyst, the conditions I have just described sound like a rarely seen perfect storm of legislative and market dysfunction. To an intellectual property scholar, they sound like business as usual. 38 In the case of the VCR wars, none of these factors obtained. The state refused to step in to aid the movie companies by criminalizing the new technology. There were equally powerful companies on the other side of the issue (the consumer electronics companies selling VCRs) who saw this new market as a natural extension of a familiar existing market--audio recorders. There was no dominant proprietary technological standard controlled by the threatened industry that could be used to shut down any threats to their business model. The market was allowed to develop and evolve without premature legal intervention or proprietary technological lockout. Thus we know in this case that the movie companies were wrong, that their claims of impending doom from cheap copies were completely mistaken. The public and, ironically, the industry itself benefited as a result. But the Sony case is the exception rather than the rule. That is why it is so important. If competition and change can be forbidden, we will get relatively few cases that disprove the logic that cheaper copying must always mean stronger rights. The "natural experiments" will never be allowed to happen. They will be squelched by those who see only threat in the technologies that allow cheaper copies and who can persuade legislators or judges to see the world their way. The story line I describe here, the Internet Threat, will become the conventional wisdom. In the process, it will make it much less likely that we will have the evidence needed to refute it. 39 The Holes Matter as Much as the Cheese 40 The Sony case is important in another way. The Supreme Court's decision turned on the judgment that it was a "fair use" under U.S. copyright law for consumers to record television programs for time-shifting purposes. Since fair use comes up numerous times in this book, it is worth pausing for a moment to explain what it is. 41 The content industries like to portray fair use as a narrow and grudging defense against an otherwise valid case for copyright infringement--as if the claim were, "Yes, I trespassed on your land, which was wrong, I admit. But I was starving and looking for food. Please give me a break." This is simply inaccurate. True, fair use is asserted as "an affirmative defense"; that is the way it is brought up in a copyright case. But in U.S. law, fair uses are stated quite clearly to be limitations on the exclusive rights of the copyright holder--uses that were never within the copyright holder's power to prohibit. The defense is not "I trespassed on your land, but I was starving." It is "I did not trespass on your land. I walked on the public road that runs through it, a road you never owned in the first place." When society hands out the right to the copyright holder, it carves out certain areas of use and refuses to hand over control of them. Again, remember the Jefferson Warning. This is not a presumptively absolute property right. It is a conditional grant of a limited and temporary monopoly. One cannot start from the presumption that the rights holder has absolute rights over all possible uses and therefore that any time a citizen makes use of the work in any way, the rights holder is entitled to get paid or to claim "piracy" if he does not get paid. Under the sway of the story line I called the Internet Threat, legislators have lost sight of this point. 42 So what is "fair use"? When I am asked this question by nonlawyers, I offer to show them the actual provision in the copyright act. They recoil, clearly imagining they are about to be shown something the size and complexity of the tax code. Here is the statutory fair use provision in its entirety: 43 Sec. 107. - Limitations on exclusive rights: Fair use 44 Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-- 45 (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. 46 The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. 47 "But this seems quite sensible," people often say, as though they had expected both Byzantine complexity and manifest irrationality. (Perhaps they have had some experience with legal matters after all.) The ones who think about it a little longer realize that these factors cannot be mechanically applied. Look at factor 3, for example. Someone who is making a parody frequently needs to take large chunks of the parodied work. That is the nature of a parody, after all. They might then sell the parody, thus also getting into trouble with factor 1. And what about factor 4? Someone might quote big chunks of my book in a devastating review that ruined any chance the book had of selling well. Come to think of it, even a parody might have a negative effect on the "potential market" for the parodied work. But surely those uses would still be "fair"? (In both instances, the Supreme Court agrees that they are fair uses.) 48 In coming up with these hypothetical problem cases, the copyright novice is probably closer to having a good understanding of the purpose of fair use than many people who have studied it for years. In fact, the novice's questions shed light on all of the exceptions, limitations, and defenses to proprietary rights--the holes in the cheese of intellectual property. The scholar's urge is to find one theory that explains all the possible applications of the fair use doctrine, to arrange all of the cases like targets and shoot a single arrow through all of them. Perhaps fair use is designed to reduce the difficulty of clearing rights when it would be uneconomical or impossibly complex to do so: to reduce the paperwork, hassle, delay, ignorance, and aggravation that economists refer to under the sanguine name of "transaction costs."19 (Though the idea that fair use is about transaction costs hardly explains some of the types of fair use we care most about--the rights to parody, to criticize, to reverse engineer.) Or perhaps fair use allows the rights of a transformative author to be trumped only by a second transformative author, who is building on the first--the parodist, reviewer, collage artist, or what have you.20 (Then again, photocopying for classroom use does not sound very "transformative.") Could fair use be dictated by the Constitution or by international free speech guarantees? In this view, fair use provides a safety valve that allows copyright to coexist with the First Amendment, property rights over speech to coexist with freedom of expression.21 After all, it is not entirely obvious how it could be constitutional to forbid me, in the name of a federal law, from translating Mein Kampf in order to warn of the dangers of fascism or parodying some piece of art to subversive effect. 49 Each of these ideas about fair use has much to recommend it, as do the many other grand theories that have been offered to explain the puzzle. And therein lies the problem. 50 Intellectual property is a brilliant social invention which presents us with great benefits but also with a multitude of dangers: 51 1. the danger that the monopoly is unnecessary to produce the innovation, or that it is broader or lasts for longer than is necessary to encourage future production; 2. that overly broad rights will chill speech, criticism, or scientific progress; 3. that it will restrict access in ways that discourage "follow- on" innovation; 4. that it will lead to industry concentration in a way that hurts consumers or citizens while being less subject to antitrust regulation precisely because the monopoly or oligopoly rests on intellectual property rights; 5. that it will establish strong "network effects" which cause the market to tip over to some inefficient technology; and 6. that it will give the rights holder control over some technology outside the range of the monopoly but closely linked to it. 52 The list of dangers goes on and on, and so does the list of exceptions, limitations, and restraints designed to prevent them. We restrict the length of intellectual property rights. (At least, we used to. The framers thought it so important to do so that they put the need to have a limited term in the Constitution itself; nevertheless both Congress and the Supreme Court seem to have given up on that one.) We restrict the scope of intellectual property rights, so that they cannot cover raw facts or general ideas, only the range of innovation and expression in between. (At least, we used to. Developments in database protection, gene patents, and business method patents are clearly eroding those walls.) As with fair use, we impose limitations on the rights when we hand them out in the first place. The exclusive right conferred by copyright does not include the right to prevent criticism, parody, classroom copying, decompilation of computer programs, and so on. (Though as the next chapter shows, a number of recent legal changes mean that the practical ability to exercise fair use rights is seriously threatened.) 53 These limitations on intellectual property do not fit a single theory, unless that theory is "avoiding the multiple and evolving dangers of intellectual property itself." Even a single limitation such as fair use clearly responds to many different concerns about the dangers of intellectual property rights. Indeed it will evolve to fit new circumstances. When computer programs were first clearly covered by copyright law, software engineers wondered if this would cripple the industry. Why? Anyone who wishes to compete with a dominant program needs to "decompile" it in order to make their program "interoperable," or simply better. For example, a new word processing program, no matter how good, would be dead on arrival unless it could read all the files people had created with the old, dominant word processing software. But to do this, the engineers at the upstart company would have to take apart their competitor's program. In the process they would have to create temporary copies of the old program, even though the final product--the hot new software--would be completely different from the old. Would this be a violation of copyright law? 54 In a series of remarkable and far-seeing cases involving such issues, the courts said no.22 "Decompilation" was fair use. The law of fair use had evolved in the context of expressive, nonfunctional, stand-alone works such as books, poems, songs. Now it was being applied to a functional product whose economics depended strongly on "network effects"--many types of programs are useful only if they are widely used. Without interoperability, we could never take our existing documents or spreadsheets or datasets and move to a new program, even if it was better. One program would not be able to read the files created by another. It would be as if language itself had been copyrighted. To have said that the incidental copies created in the process of decompiling software were actually infringements of copyright would have turned the law on its head because of a technological accident (you needed temporarily to "copy" the programs in order to understand how they worked and make yours work with them) and a legal accident (copyright was now being used to regulate functional articles of commerce: "machines" made of binary code). The difference between copying and reading, or copying and understanding, had changed because of the technology. The context had changed because the law was being stretched to cover new types of products, whose economics were very different from those of novels. Rather than let the dominant software companies use copyright to stop others from making interoperable software, the courts used an escape hatch--fair use--to prevent that danger and to uphold the basic goal of copyright: encouraging progress in science and the useful arts. 55 This long story is told to make a simple point. The variegated and evolving limitations on intellectual property are as important as the rights they constrain, curtail, and define. The holes matter as much as the cheese. 56 What does this have to do with the Sony case? In that case, remember, the Supreme Court had said that copying TV shows in order to time-shift was fair use. The Court could simply have stopped there. It could have said, "since most of what consumers do is legal, there can be no claim of contributory or vicarious infringement. Sony is not contributing to infringement since consumers are not infringing copyright by copying shows in the first place." Interestingly, though this is the heart of the ruling, the court went further. It quoted some seemingly unrelated patent law doctrine on contributory infringement: "A finding of contributory infringement does not, of course, remove the article from the market altogether; it does, however, give the patentee effective control over the sale of that item. Indeed, a finding of contributory infringement is normally the functional equivalent of holding that the disputed article is within the monopoly granted to the patentee." Clearly, the Justices were concerned that, by using copyright law, the movie studios could actually get control of a new technology. 57 The fact that the Court expressed this concern through an analogy to patent law was, at first sight, fairly surprising. Courts do not normally look at copyrights in quite the same way as they look at patents. For one thing, patent rights are stronger, though they are harder to obtain and last for a shorter period of time. For another, while courts often express concern about the dangers of a patent-driven monopoly over a particular technology, it is strange to see that concern in the context of copyright law. An unnecessary monopoly over a plow or a grain elevator may, as Jefferson pointed out, slow technological development. But a monopoly over Snow White or "Ode on a Grecian Urn"? We do not normally think of rights over expression (the realm of copyright) threatening to sweep within their ambit an entire new technological invention (the realm of patent). 58 But in the Sony case, the Supreme Court quite clearly saw that, in a world where technological developments made copying easier, the idea of contributory infringement in copyright could be used to suppress or control entire technologies that seemed, in the logic of 20/20 downside vision, to pose a threat to the copyright holder. Indeed, in some sense, the logic behind the Internet Threat--"cheaper copying requires greater control"--demands this result, though the Sony case antedates the World Wide Web by a considerable time. If it is cheap copying itself that poses the threat, then the content owners will increasingly move to gain control over the technologies of cheap copying, using copyright as their stalking horse. That is why the Sony Court went beyond the simple ruling on fair use to explain the consequences of the movie companies' claim. In a footnote (the place where judges often bury their most trenchant asides) the Court was almost snide: 59 It seems extraordinary to suggest that the Copyright Act confers upon all copyright owners collectively, much less the two respondents in this case, the exclusive right to distribute VTR's [Video Tape Recorders] simply because they may be used to infringe copyrights. That, however, is the logical implication of their claim. The request for an injunction below indicates that respondents seek, in effect, to declare VTR's contraband. Their suggestion in this Court that a continuing royalty pursuant to a judicially created compulsory license would be an acceptable remedy merely indicates that respondents, for their part, would be willing to license their claimed monopoly interest in VTR's to Sony in return for a royalty.23 60 The real heart of the Sony case is not that "time-shifting" of TV programs is fair use. It is an altogether deeper principle with implications for all of the holes in the intellectual property cheese. The Sony Court declared that because video recorders were capable of substantial noninfringing uses, the manufacturers of those devices were not guilty of contributory infringement. If the rights of copyright holders were absolute, if they had the authority to prohibit any activity that appeared to pose a threat to their current business model, then it is quite possible that video recorders would have been guilty of contributory infringement. It is because we have, and need, multiple exceptions and limitations on intellectual property that the Supreme Court was able to resist the claim that copyright itself forbids technologies of cheaper copying. To put it another way, without a robust set of exceptions and limitations on copyright, the idea that cheaper copying requires greater control will inexorably drive us toward the position that the technologies of cheaper reproduction must be put under the governance of copyright holders. 61 Thus we have a corollary to the Jefferson Warning--call it the Sony Axiom: cheaper copying makes the limitations on copyright more rather than less important. Without those limitations, copyright law will bloat and metastasize into a claim of monopoly, or at least control, over the very architectures of our communications technology. And that is exactly where the logic of the Internet Threat is taking us today. 62 FROM NAPSTER TO GROKSTER 63 Seventeen years after the Sony decision, another court had to deal with a suit by outraged copyright holders against the creators of a technology that allowed individuals to copy material cheaply and easily. The suit was called A&M Records v. Napster.24 Napster was a "peer-to-peer" file sharing system. The files were not kept on some huge central server. Instead, there was a central directory--think of a telephone directory--which contained a constantly updated list of the addresses of individual computers and the files they contained. Anyone who had the software could query the central registry to find a file's location and then establish a direct computer-to-computer connection--anywhere in the world--with the person who had the file they desired. This decentralized design meant the system was extremely "robust," very fast, and of nearly infinite capacity. Using this technology, tens of millions of people around the world were "sharing" music, an activity which record companies quite understandably viewed as simple theft. In fact, it would be hard to think of a situation that illustrated the Internet Threat better. The case ended up in front of the U.S. Court of Appeals for the Ninth Circuit, which hears cases in an area that includes California and thus has decided a lot of copyright cases over the years. 64 There was an irony here. When the Supreme Court decided the Sony case, it was on appeal from the Ninth Circuit Court of Appeals. Sony, with its rule about reproductive technologies with substantial noninfringing uses, reversed the appeals court decision. The Supreme Court was, in effect, telling the Ninth Circuit that it was wrong, that its ruling would have required the "extraordinary" (legal shorthand for "stupid") conclusion that copyright law gave copyright holders a veto on new technology. In the process, the Supreme Court told the Ninth Circuit that it also did not understand the law of fair use, or the freedom that should be given to individuals to make "noncommercial" private copies. The identities of the judges had changed, but now, seventeen years later, the same Circuit Court had another high-profile case on exactly the same issues. In case any of the judges might have missed this irony, it took David Boies, the lawyer for Napster, about ninety seconds to remind them in his oral argument. "This court," he said, adding as if in afterthought, "in the decision that the Supreme Court ultimately reversed in Sony. . . ."25 To the laypeople in the audience it probably just seemed like another piece of legal droning. But to the lawyers in the room the message was quite clear. "The last time you got a case about a major new technology of consumer reproduction, you really screwed it up. Hope you can do better this time." The judges' mouths quirked--not entirely in pleasure. The point had been registered. 65 Think for a moment of the dilemma in which the court had been placed. On the one hand, you had tens of millions of people "sharing" music files and Napster was the service that allowed them to do it. If this was not contributory copyright infringement, what was? On the other hand, Napster seemed to fit very nicely under the rule announced in the Sony case. 66 The argument went like this. Like the VCR, the Napster service had substantial noninfringing uses. It allowed bands to expose their music to the world through the "New Artists" program. It made it easy to share music which was no longer under copyright. These uses clearly do not infringe copyright. There were also the claims that it permitted "space-shifting" by consumers who already owned the music or "sampling" of music by listeners as they decided whether or not to buy. One could argue that space- shifting and sampling were fair use (though in the end the court disagreed). But since we have two clear noninfringing uses, the technology obviously does have substantial uses that do not violate copyright. Thus, Napster cannot be liable as a contributory infringer, just as Sony could not be liable for the Betamax. Supreme Court precedent covers this case. The Ninth Circuit is bound by that precedent. All the judges can do, goes the argument, is to apply the words of the rule laid down in Sony, say that Napster wins, and move on to the next case. If Congress wants to make services like Napster illegal, it is going to have to pass a new law. The boundaries of the Sony rule are clear and Napster fits within them. (Of course, the last point is subject to argument, but the argument for Napster on this issue was a good one. Not overwhelming--there were more noninfringing uses in the Sony case because the normal way consumers used the technology in question was found to be a fair use--but certainly powerful.) 67 A more daring strategy was to suggest that all the copying done over Napster was fair use, or at least presumptively fair. In Sony, the Supreme Court had said that the law presumes that noncommercial private copying--such as taping a show at home for future viewing--is a fair use. This presumption shifts the burden to the copyright holder to prove that the practice caused harm to them. Copying on Napster was done by private individuals. No money was exchanged. Does this mean we must presume it was fair use and require the music companies and songwriters to show clear evidence of "market harm" if they want to convince us otherwise? 68 It sounds as though proving market harm would be pretty easy. How could millions of people exchanging hundreds of millions of songs not be causing harm? But it is more complicated. Remember the Jefferson Warning. We are not talking about swiping shoes from a shoe store. There one merely has to show the theft to prove the loss. By contrast, music files are copied without being "taken" from their owner. The record companies would have to show harm to their market--the people downloading who do not purchase music because it is available for free. Those who download, but would not have purchased, do not count. And we have to balance those who are deterred from purchasing against those who purchase a whole CD because they are exposed to new music through Napster. One very interesting empirical study on the subject indicates that the result is a wash, with hardly any measurable effect on sales; the overall drop in CD purchases results from larger macroeconomic issues.26 This study, however, has been subject to detailed methodological criticism.27 Another study shows a weak effect on sales, though rather woundingly it seems to suggest that the result is economically efficient--fewer people end up with music they do not like.28 Other studies, by contrast, support the record company position--suggesting that illicit file sharing does indeed undercut sales of both CDs and authorized digital downloads.29 Given the complexities of the issue, the record companies did not want to engage in a war of dueling empirical studies. 69 So, if Napster's users were not infringing copyright law in the first place--at least until the record companies came up with convincing evidence of market harm--because their copying was noncommercial, then Napster could hardly be guilty of contributory infringement, could it? There would be no infringement at all! 70 You could see Mr. Boies's arguments as simple equations between the cases. 71 * Noninfringing uses such as recording public domain films and "time-shifting" programs are equivalent to noninfringing uses such as the New Artists program or sharing public domain music (and maybe "space-shifting" one's own music?); or * Private noncommercial videotaping is equivalent to private noncommercial file sharing. Both are presumptively fair uses. * Either way, Sony=Napster and Napster wins. 72 Napster did not win, of course, though when the judges handed down their decision it was clear they had been paying attention to Mr. Boies, at least enough to make them very wary of tampering with Sony. They claimed that they were upholding that case, but that Napster could be liable anyway. How? Because there was enough evidence here to show that the controllers of Napster had "actual knowledge that specific infringing material is available using its system, that it could block access to the system by suppliers of the infringing material, and that it failed to remove the material." There was indeed evidence that Napster knew how its system was being used--an embarrassing amount of it, including early memos saying that users will want anonymity because they are trading in "pirated music." Then there were nasty circumstantial details, like the thousands of infringing songs on the hard drive of one particular Napster employee--the compliance officer tasked with enforcing the Digital Millennium Copyright Act! (The recording company lawyers waxed wonderfully sarcastic about that.) 73 But despite the ludicrously dirty hands of Napster as a company, lawyers could see that the appeals court was making a lot of new law as it struggled to find a way to uphold Sony while still making Napster liable. The court's ruling sounded reasonable and clear, something that would only strike at bad actors while paying heed to the Sony Axiom and the assurance of safety that the rule in Sony had provided to technology developers for the previous twenty years. But hard cases make bad law. In order to accomplish this piece of legal legerdemain, the court had to alter or reinterpret the law in ways that are disturbing. 74 The first thing the court did was to reject the argument that the "sharing" was private and noncommercial. As to the idea that it is not private, fair enough. Sharing one's music with fifty- four million people does not sound that private, even if it is done for private ends, in private spaces. What about noncommercial? Embracing some earlier rulings on the subject, the court said a use was "commercial" if you got for nothing something for which you would otherwise have to pay. On the surface this sounds both clever and reasonable--a way to differentiate home taping from global file sharing--but the argument quickly begins to unravel. True, the Betamax owners could get TV shows for free just by watching at the regular time. But they could not get a copy of the show for free at the moment they wanted to watch it. That was why they taped. One could even argue that Napster users would have access to most songs over the radio for free. But lawyers' quibbling about which way the rule cuts in this case is not the point. Instead, we need to focus on the change in the definition of "commercial," because it illustrates a wider shift. 75 Remember, a finding that a use is "noncommercial" makes it more likely that a court will find it to be legal--to be a fair use. The old test focused mainly on whether the motive for the copying was to make money. (A different stage of the inquiry concerned whether there was harm to the copyright holder's market.) The Napster court's test concentrates on whether the person consuming the copy got something for free. Instead of focusing on the fact that the person making the copy is not making money out of it--think of a professor making electronic copies of articles for his students to download--it focuses on the presumptively dirty hands of those who are "getting something for nothing." But lots of copyright law is about "getting something for nothing." 76 To put it differently, one central goal of copyright is to limit the monopoly given to the copyright owner so that he or she cannot force citizens to pay for every single type of use. The design of the law itself is supposed to facilitate that. When "getting something for free" comes to equal "commercial" in the analysis of fair use, things are dangerously out of balance. Think back to Jefferson's analogy. If I light my candle at yours, am I getting fire for free, when otherwise I would have had to pay for matches? Does that make it a "commercial" act? 77 Having dismissed the claim that this was noncommercial sharing, the court then reinterpreted the Sony decision to allow liability when there was "actual knowledge" of specific copyright violations, an ability to block access by infringers, and a failure to do so. Neither side was entirely happy with this ruling, but the record companies believed--rightly--that it would allow them effectively to shut Napster down. Yet the Napster ruling only postponed the issue. The next set of file sharing services to be sued after Napster were even more decentralized peer-to-peer systems; the Napster court's reinterpretation of Sony would not be able to reach them. 78 The peer-to-peer file sharing service called Grokster is a relatively typical example. Unlike Napster, Grokster had no central registry. The system was entirely run by the individual "peer" computers. Because the system was designed this way, the people who made and distributed the software had no knowledge of specific infringing files. The users were doing the searching, indexing, and storing, and Grokster had no ability to control their behavior. For those reasons, a court of appeals held that Grokster was not liable. As in Sony, the system had substantial noninfringing uses. Lots of interesting content was traded on Grokster with the copyright holder's consent. Other material was in the public domain. Grokster made money by streaming advertisements to the users of its software. The movie companies and record companies saw this as a flagrant, for-profit piracy ring. Grokster's response was that like the makers of the VCR, it was simply providing a technology. Its financial interest was in people using that technology, not in using it for illicit purposes--though, like the VCR manufacturer, it would profit either way. The court of appeals agreed. True, the majority of the material traded on Grokster was illicitly copied, but the court felt that it could not give the recording or movie companies control over a technology simply because it allowed for easier copying, even if most of that copying was illegal. As I tried to point out in the section on the Sony Axiom, that line of thought leads to copyright holders having a veto over technological development. 79 It was at this point that the Supreme Court stepped in. In the case of MGM v. Grokster,30 the Supreme Court followed the line of the Napster court, but went even further. The Court created a new type of contributory copyright infringement--while apparently denying it was doing so. Grokster and its fellow services were liable because of three different kinds of evidence that they had "intended" to induce copyright violation. First, they were trying "to satisfy a known demand for copyright infringement." This could be shown by the way that they advertised themselves as alternatives to the "notorious filesharing service, Napster." Second, the file sharing services did not try to develop filtering software to identify and eliminate copyrighted content--though this alone would not have been enough to make them liable. Finally, their advertising-supported system clearly profited by high-intensity use, which they knew was driven in the most part by illicit copying. This too would not have been enough by itself, the Court added, but had to be seen in the context of the whole record of the case. 80 Let me be clear. I wept no tears for Napster, Grokster, and their ilk. I see no high-minded principle vindicated by middle- class kids getting access to music they do not want to pay for. It is difficult to take seriously the sanctimonious preening of those who cast each junior downloader of corporate rock as a Ché Guevara, fighting heroically to bring about a new creative landscape in music. (It is almost as hard to take seriously the record industry executives who moralistically denounce the downloading in the name of the poor, suffering artists, when they preside over a system of contracts with those same artists that makes feudal indenture look benign.) The file sharing companies themselves were also pretty unappealing. Many of the services were bloated with adware and spyware. True, some of their software engineers started with a dewy-eyed belief that this was a revolutionary technology that would break the record companies and usher in a new era of musical creativity. Whether one agrees or disagrees with them, it is hard--for me at least--to doubt their sincerity. But even this quality did not last long. For most of the people involved, the words "stock options" worked their normal, morally debilitating magic. In internal company correspondence, attacks on the hypocrisy of the music companies and defenses of a democratic communications structure imperceptibly gave way to discussions of "customer base," "user experience," and "saleable demographics." I care little that Napster and Grokster--as individual companies--lost their specific legal battles. There are few heroes in this story. But if we had to rely on heroes, nothing would ever get done. 81 I do care about the technology behind Napster and Grokster--about the kind of decentralized system it represents. I also care about the principle I identified as the Sony Axiom--a principle that goes far beyond music, peer-to-peer systems, or the Internet as a whole. The Supreme Court's decision in Grokster could have been much worse. But it still offers a modest threat both to that technology and to that axiom. 82 What is so great about peer-to-peer systems? We talk about "cheap speech" on the Internet, but bandwidth is actually expensive. If one is talking about music or video files, and one wishes to speak to many people in a short period of time, one vital way to have cheap speech is over peer-to-peer networks. If many of your viewers or listeners are willing to become broadcasting stations as they watch, you can cheaply reach a million people in a short period of time with your video of abuse in Abu Ghraib or your parody of political leaders. You do not need to rely on a broadcasting station, or even on the continued existence of entities such as YouTube, which face their own legal worries. By making your listeners your distributors, you can quickly reach the same number of ears that the payola-soaked radio waves allow the record companies to reach. 83 One need not cheer Grokster. Much of what went on there was indeed illicit. But there are two key things to understand about peer-to-peer networks. The first is that they are hard to police. They have multiple nodes. That is why they work. It means they will have both infringing and noninfringing uses, and the noninfringing uses will be centrally connected to our deepest values of free speech and cultural decentralization. 84 The second feature of peer-to-peer networks is even more basic. They are networks and thus subject to the laws of network economics. In short, they only work well if many people use them. A person who uses a peer-to-peer system that no one else uses is in the position of the person who owns the only fax machine in the world. Peer-to-peer networks provide cheap and unregulable audiovisual or data-heavy "speech" to a mass audience. And if the past is any guide, those networks will also carry large amounts of illicit material, just as photocopying machines (and VCRs) are widely used to violate copyright. The Grokster case makes it harder, but not impossible, to have successful, widely used peer-to-peer systems that are not themselves illicit. If they are widely used, there will be infringing content. If you try to police them and filter them, you will know more about that infringing content and thus might be liable--that was the point of the Napster case. If you do not, you will be failing to take precautions. That was the point of the Grokster case. What is a poor peer-to-peer network to do? Apart from making sure that the last four letters of your service's name are not "-ster," I am hard-pressed to advise you. 85 A decision does not need to make an activity illegal in order to impede it. It only needs to make it uncertain. Already, for example, the free--and so far as I could tell, entirely well- meaning--service "bonpoo," which allowed you to send large file attachments to many people at once, has shut down all of its capabilities except photo transfer. That is simply one trivial instance of a larger harm. Lots of new communications technologies will remain undeveloped because of the uncertainties left by this ruling. 86 My colleague Jennifer Jenkins gave one useful hyperbolic illustration, drawing on earlier work by the Electronic Frontier Foundation: if one were launching the iPod today, it is not clear how it would fare under Grokster's standard. Of course, there is no danger that the iPod will be challenged. It has become respectable and the music companies ended up sanctioning it. But how does it fare if we simply apply the tests laid down in the Grokster case? There is Apple's "tainted" advertising campaign, urging users to "Rip, Mix, and Burn." Does this not suggest complicity, or even intent? There is the fact that the iPod does not restrict itself solely to proprietary formats protected by digital rights management. It also allows uncontrolled MP3 files despite the fact that this format is "notoriously" used to transfer files against the wishes of the copyright owner. This, surely, is a "failure to police." And finally, there is the fact that it would cost about $10,000 to fill an iPod with songs downloaded from iTunes. Clearly Apple must be aware that much of the music that fills iPods is illicitly copied. They are profiting from that fact to drive demand for the product, just as Grokster was profiting from the attractions of illicit traffic to drive people to use their service! 87 No one is going to sue Apple now, of course. In fact, established players in the marketplace are probably fairly safe (and have better lawyers). But what if a product as good as the iPod were being developed now by some upstart company? What if it were no more and no less likely to be used for infringing purposes? Would the business plan ever see the light of day? Or would it be quietly smothered due to legal uncertainty? I have little sympathy for Grokster the company, but the decision that doomed it is a bad piece of technology policy. 88 There is a second reason to dislike the Grokster decision. Despite some of the angst-ridden announcements made when the decision was handed down, the Supreme Court has not killed peer- to-peer systems. The concept is far too well entrenched. But the decision will mean that there are fewer of them that are widely used, easy to operate, and made by responsible and reputable people you can trust. This will probably lessen, but not end, illicit copying online. But that effect comes with a price--it makes our communications architecture a little bit more tightly controlled, reducing but not removing the availability of methods of mass distribution that are entirely outside centralized public or private control. It is another--relatively small--step toward an Internet that is more like cable TV or iTunes, a one-way flow of approved content. One might decide that such a price was well worth paying. But where is the limiting principle or end point of the logic that led to it? 89 There is no provision in U.S. statutory copyright law that imposes liability for contributory or vicarious infringement. None. The patent statute has such a provision; not the Copyright Act. The courts have simply made the scheme up themselves. Then they made up limitations--such as Sony--in order to rein it in. In Grokster, the Supreme Court went further. It made up a new type of "inducement" liability. Fine. As I have tried to indicate here, the decision is not as dreadful as it is reputed to be. But so long as there is any unregulated space in our communications network, some portion of it will have illicitly copied content on it. The more the system is free of central control, the more it is open to use by any citizen, the cheaper it gets--all very desirable characteristics--the more illicit content there will be. That is the premise of the Internet Threat--the belief that control must rise as copying costs fall. I have tried here to suggest an alternative interpretation, the Sony Axiom: without a strong internal set of limitations over copyright, cheaper copying and the logic of the Internet Threat will always drive us toward giving control over our communications architecture to the content industries. 90 There was one particularly striking moment in the Napster oral argument. The lawyer for the recording companies was arguing that Napster was illegal. The judges interrupted, as they often do, and there was a back-and-forth debate about the likely reach of any ruling that would shut down Napster. "I am not trying to say the Internet is illegal," said the lawyer. There was a pause as everyone weighed those words carefully. 91 My response would be "Really? Why not?" The logic of the Internet Threat leads to the position that a network is either controlled or illegal. The better and cheaper the network, the tighter the control needed. The Internet itself could have been designed differently. There could have been more centralized control, filtering of content, a design based on one-way transmission, closed protocols that allow users only a limited number of options. Indeed there were such systems--the national French Minitel system is an example. The Internet represents the opposite set of choices--freedom from centralized control, absence of intervention. In a famous article, Saltzer, Reed, and Clark provided the argument that an "end-to-end" network that is "dumb" and leaves processing to the "ends"--the smart terminals at either end of the wires--will be stable and robust.31 But it will also be remarkably uncontrolled and it will lower global copying costs close to zero for digital content. It is that principle that has made it successful. To put it tersely: the logic of the Internet Threat runs in exactly the opposite direction to the Internet itself. The logic of control is not the logic of the Net. 92 Here is one last thought experiment. Apply the same test I suggested for the iPod to the Internet itself.32 Imagine you knew nothing of the Net. (Those of you who are over twenty-five may actually be able to remember when you knew nothing of the Net.) Imagine that you are sitting in a room somewhere discussing--perhaps with a group of government bureaucrats or some policy analysts from the Commerce Department--whether to develop this particular network. The scientists are enthusiastic. They talk of robustness and dumb networks with smart terminals. They talk of TCP/IP and HTML and decentralized systems that run on open protocols, so that anyone can connect to this network and use it any way they want to. You, of course, know nothing about the truly astounding outburst of creativity and communication that would actually flower on such a system, that would flower precisely because it is so open and no one country or company controls it or the protocols that run it. You do not know that millions of people worldwide will assemble the greatest factual reference work the world has ever seen on this network--often providing their information for free out of some bizarre love of sharing. You do not know about Amazon.com or Hotornot.com or the newspapers of the world online, or search engines, automatic page translation, plug-ins, or browsers. You cannot imagine free or open-source software being assembled by thousands of programmers worldwide. E-mail is only a dimly understood phenomenon to you. Teenagers in your world have never heard of instant messaging--a nostalgic thought. 93 As the scientists talk, it becomes clear that they are describing a system without centralized direction or policing. Imagine that your decision is framed by the logic of control I have described in this chapter, by the fears that the content industry has had for at least the last thirty years--by the logic of the suit they brought in Sony. Imagine, in other words, that we make the up-or-down decision to develop the Internet based on the values and fears that our copyright policy now exhibits, and that the content industries have exhibited for thirty years. There is no way, no way at all, that a network like it would ever be developed. It would be strangled at birth. You would be told by the lawyers and policy wonks that it would be a haven for piracy and illegality. (And it would be, of course--though it would also be much, much more.) You would be told that the system needed to be designed to be safe for commerce or it would never attract investment, that it would need to be controlled and centralized for it to be reliable, that it would need to be monitored to stop it being a hotbed of crime. With the copyright lawyers in the room, you would end up designing something that looked like cable TV or Minitel. The Internet would never get off the ground. 94 The Internet is safe now, of course, because it developed so fast that it was a reality before people had time to be afraid of it. But it should give us pause that if we had our current guiding set of policy goals in place, our assumption that cheaper copying means we need greater regulation, we would never have allowed it to flourish. As Jessica Litman points out, we are increasingly making our decisions about technology and communications policy inside copyright law. We are doing so according to the logic of control that I have sketched out in this chapter. But the logic of control is a partial logic. It blinds us to certain possibilities, ones that have huge and proven potential--look at the Internet. 95 The law has not been entirely one-sided, however. The Sony case drew a line in the sand which promised to halt the inevitable drift toward greater and greater control over communications technology by content owners. It turned out the heavens did not fall. Indeed, the content companies thrived. Perhaps that line was drawn in the wrong place; reasonable people can disagree about that. But Grokster smudges the line without drawing a clear new one. If that new line is drawn according to the logic of control, what technologies will we never see? Could they be technologies that would transform our lives as unimaginably as the Internet has since 1995? 96 I have described the story line--the cluster of metaphors and images and concerns--that pervades our copyright policy. I labeled it "the Internet Threat." In the next chapter, I discuss an alternative story line, a different way of understanding our current policies. The subject of that story line is the best- known example of contemporary attempts to control the digital world, the Digital Millennium Copyright Act or DMCA. Chapter 5: The Farmers' Tale: An Allegory 1 Imagine that a bustling group of colonists has just moved into a new area, a huge, unexplored plain. (Again, assume the native inhabitants have conveniently disappeared.) Some of the colonists want to farm just as they always did in the old country. "Good fences make good neighbors" is their motto. Others, inspired by the wide-open spaces around them, declare that this new land needs new ways. They want to let their cattle roam as they will; their slogan is "Protect the open range." In practice, the eventual result is a mixture of the two regimes. Fields under cultivation can be walled off but there is a right of passage through the farmers' lands for all who want it, so long as no damage is done. This means travelers do not need to make costly and inefficient detours around each farm. In the long run, these "public roads" actually increase the value of the private property through which they pass. They also let the ranchers move their cattle around from one area of pasture to another. The ranchers become strong proponents of "public, open highways" (though some people muse darkly that they do very well out of that rule). Still, most people want open highways; the system seems to work pretty well, in fact. 2 Two new technologies are introduced. First, the automobile is developed. Now thieves can drive through the farmers' fields, stop quickly to grab some corn or a lettuce, and be back on the highway before they can be caught. Of course, the farmers' costs have also fallen dramatically; now they have tractors to work their fields and trucks to take their products to distant markets. The farmers do not dwell on the benefits of the new technology, however. Understandably, they focus more on the profits they could reap if they could get all the advantages of the technology and none of its costs. They demand new legal protections aimed at producing that result. "What's good for agriculture is good for the nation," they say. But now comes the second technological shock--the development of barbed wire. The cost of erecting impassable barriers falls dramatically. The farmers begin to see the possibility of enclosing all of their land, roads and fields alike. This will help them protect their crops from pilfering, but it will also allow them to charge people for opening the gates in their fences--even the gates on public roads. That is a nice extra revenue stream which will, the farmers say, "help encourage agriculture." After all, more fences mean more money for farmers, and more money for farmers means they can invest in new methods of farming, which will mean everyone is better off, right? 3 What is to be done? Assume that each side presents its case to the legislature. There are three obvious possibilities: 4 First, the legislature can simply tell each side to work it out amongst themselves. The law will continue to forbid trespass, but we are neither going to make it a crime to put up a barbed wire fence if it blocks legitimate public rights of way nor to make it a crime to cut a barbed wire fence, unless the fence cutter is also a trespasser. The farmers can attempt to enclose land by putting barbed wire around it. Ranchers and drivers can legally cut those fences when they are blocking public rights of way. Trespass remains trespass, nothing more. 5 Second, the legislature could heed the ranchers' fears that barbed wire will permit the farmers not only to protect their own land, but to rob the public of its existing rights of way, turning open highways into toll roads. (The ranchers, of course, are more concerned with the rights of cattle than people, but most drivers agree with them.) As a result, the state could forbid the erection of a barbed wire fence where it might block a public right of way--classing it as a kind of theft, perhaps. 6 Third, the legislature could take the farmers' side. Theorizing that this new automobile technology presents "a terrible threat to agriculture, because of rampant crop piracy," the state could go beyond the existing law of trespass and make it a crime to cut barbed wire fences wherever you find them (even if the fences are enclosing public lands as well as private, or blocking public roads). To back up its command, it could get into the technology regulation business--making the manufacture or possession of wire cutters illegal. 7 The state picks option three. Wire cutting becomes a crime, wire cutters are classed with lock picks and other "criminals' tools," and the people who make wire cutters are told their business is illegal. A storm of protest arises in the rural driving community. The wire cutter manufacturers claim that their products have lots of legitimate uses. All to no avail: the farmers press on. They have two new demands. Cars should be fitted with mandatory radio beacons and highways put under constant state surveillance in order to deter crop theft. In addition, car trunks should be redesigned so they can hold less--just in case the owner plans to load them up with purloined produce. Civil libertarians unite with car manufacturers to attack the plan. The farmers declare that the car manufacturers are only interested in making money from potential thieves and that the civil libertarians are Nervous Nellies: no one has anything to fear except the criminals. "What's good for agriculture is good for the nation," they announce again. As the barbed wire gates swing shut across the highways of the region, the legislature heads back into session. 8 BETWEEN PARANOIA AND REALITY: THE DMCA 9 I have argued that confusing intellectual property with physical property is dangerous. I stand by that argument. Yet analogies to physical property are powerful. It is inevitable that we attempt to explain new phenomena by comparing them to material with which we are more familiar. While the content companies' tales of "theft" and "piracy" are the most prevalent, they are by no means the only such analogy one can make. In this chapter I try to prove that point. 10 The Farmers' Tale is my allegorical attempt to explain the struggle over the single most controversial piece of intellectual property legislation in recent years, the Digital Millennium Copyright Act, or DMCA.1 The DMCA did many things, but for our purposes its crucial provisions are those forbidding the "circumvention of copyright protection systems," the technological measures that copyright holders can use to deny access to their works or control our behavior once we get access. These measures include encryption, controls on how many times a file can be copied, password protection, and so on. Copyright protection systems are, in other words, the digital equivalent of barbed wire, used to add an additional layer of "physical" protection to the property owner's existing legal protection. But, unlike barbed wire, they can also control what we do once we get access to the property. 11 The rules that forbid circumvention of these systems are logically, if not elegantly, referred to as the anticircumvention provisions. They are to be found in Section 1201 of the Copyright Act, an ungainly and lumpily written portion of the law that was inserted in 1998 as part of the complex set of amendments collectively referred to as the DMCA. I will explain the significance of these rules in a moment. My hope is that the analogy to the Farmers' Tale will make them a little easier to understand--at least for those of you for whom talk of digital rights management, anticircumvention provisions, and network effects is not second nature. 12 Notice the differences between this allegory and the "Internet Threat" story line I described in the last chapter. There are two sets of bad guys in the Farmers' Tale. The greedy thieves (who are still thieves in this story--not heroes) and the greedy farmers who use a genuine if indefinite "threat" posed by a new technology to mask a power grab. The Internet Threat is the story of an industry devastated by piracy, in desperate need of help from the state to protect its legitimate property interests. By contrast, the Farmers' Tale is the story of a self-interested attempt not only to protect property but to cut off recognized rights of public access in a way that will actually make the whole society worse off. The legitimate role of the state in protecting private property has been stretched into an attempt to regulate technology so as to pick winners in the marketplace, enriching the farmers at the expense of consumers and other businesses. In the long run this will not be good for business as a whole. A patchwork of private toll roads is an economic nightmare. 13 That is not the most worrying part of the story: the farmers' proposals are moving in the direction of regulating still more technology--the mandatory radio beacons and constantly monitored roads conjure up a police state--and all to protect a bunch of hysterical vegetable growers whose political clout far outweighs their actual economic importance. 14 Both the Internet Threat and the Farmers' Tale are, of course, ways to understand what is currently going on in the intellectual property wars. In the digital realm, the part of the farmers is played by the content companies, the recording industry associations, the movie and software trade groups. Pointing to the threat of digital piracy, they demanded and received extra legal protection for their copyrighted content. Unlike earlier expansions--longer copyright terms, more stringent penalties, the shrinking of exceptions and limitations, expansions in copyrightable subject matter--this was not a protection of the work itself; it was a protection of the digital fences wrapped around it, and a regulation of the technology that might threaten those fences. 15 What is the significance of this? The digital revolution makes it easier to copy copyrighted content. It also makes it easier to protect that content, and to do so in a more granular and precisely calibrated way. Imagine being able to sell a paperback book that could only be read by the original purchaser or a song that could only be listened to by a particular person in a particular room. Digital rights management technology makes it a lot easier to do these things. Suddenly the copyright owners have considerable physical control over their songs, e-books, and software, even after they have sold them. It is as if the recording industry or the publishers had a representative in your living room. They can use that control not merely to prevent illicit copying but to control and limit usage in ways that go far beyond their exclusive rights under copyright. All of this happens without the law or the state doing anything. Like barbed wire, this is a technological protection measure. 16 Like the farmers, the content companies were not content with their barbed wire alone. They wanted legally protected barbed wire in addition to their existing legal rights under copyright. Under the Digital Millennium Copyright Act, it became illegal to circumvent a technical protection measure such as encryption--the digital barbed wire behind which content companies secrete their work--even if what you did with the content when you got past the barbed wire was a fair use; excerpting a fragment of a film for a school presentation, for example, or making a copy of an encrypted audio file for personal use in another device. In other words, by using digital barbed wire, the content companies could prevent citizens from making the "fair uses" the copyright law allowed. This undermines some of the limitations on their exclusive rights that the Copyright Act explicitly carves out in Section 107, and thus shifts the balance of power that the Copyright Act establishes. Cutting barbed wire became a civil wrong, and perhaps a crime, even if the wire blocked a public road. Under most circumstances, making wire cutters was also now against the law. 17 The ranchers--whose digital equivalents are communications companies and hardware manufacturers--chafed under these new rules. The most powerful groups managed to get special dispensations. Internet service providers, for example, got a qualified immunity from copyright infringement that occurs over their networks. But ordinary citizens, librarians, and civil libertarians also complained, and they were not as well represented in the legislature. It is true that the new rules may help to prevent illicit copying, but they also strike a blow against the exercise of fair use rights--rights that are important both to free speech and competition. Even if the content companies were absolutely right about the threats from digital piracy, this consequence should make us pause. But critics of the DMCA say that there is little evidence that the content companies are right. They quote some of the empirical studies I mentioned in the last chapter, particularly the ones that show no net negative effect from unauthorized music downloading on CD sales. They claim--and they are on strong ground here--that even if there are some losses from the new copying technologies, there are also benefits. Like the farmers, the critics would argue, the content companies take the benefits of the new technology for granted, but wish the law to step in to ameliorate the harms it also creates. And like the farmers, they are not yet satisfied. Their new proposals go even further--scarily further. Thus runs the critics' argument. 18 The critics of the DMCA conjure up a world in which it will be illegal to lend each other books or songs, where it will be impossible for us to copy even small fragments of digital work for criticism or parody, where encryption research will be severely "chilled," and where large quantities of the public domain will be enclosed together with the copyrighted content that the DMCA is supposed to protect. (The Electronic Frontier Foundation's "Unintended Consequences" studies give concrete examples.)2 They think the DMCA undoes the balance at the heart of copyright law, that it can be used to entrench existing businesses and their business methods, that it threatens speech, competition, privacy, and innovation itself. In short, they think the DMCA is the worst intellectual property law Congress has ever passed and view the adoption of similar laws around the world with a reaction little short of horror. 19 Those who supported the DMCA disagree, of course, and do so honestly. They see rampant piracy as a reality and the threat to fair use as some kind of academic hypothetical rarely encountered in reality. What's more, many of them do not think fair use is that important economically or culturally. If markets work well, users could be made to pay for the rights that fair use gives--but only if they wanted them. One could buy expensive digital books which one was allowed to share, quote, or copy for classroom use, and cheaper ones which one had to keep to oneself. Remember that for many of the people who supported the DMCA, fair use is something of a "loophole"; certainly not an affirmative right of the public or a reserved limitation on the original property grant from the state. (Remember the Sony Axiom from Chapter 4?) They find the analogy of fair use to a public road ludicrous. This film, or book, or song, is mine; anything you do with it, or to it, you do at my sufferance. (Remember the Jefferson Warning from Chapter 2?) 20 How has the DMCA worked in reality? Which group's attitudes were vindicated? Two case studies may help us to answer these questions. 21 Infectious Speech: The DMCA and Freedom of Expression 22 Jon Johansen, a 16-year-old Norwegian, was the unwitting catalyst for one of the most important cases interpreting the DMCA. He and two anonymous helpers wrote a program called DeCSS. Depending on whom you listen to, DeCSS is described either as a way of allowing people who use Linux or other open source operating systems to play DVDs on their computers, or as a tool for piracy that threatened the entire movie industry and violated the DMCA. 23 A little background is in order. When you play a commercial DVD, your actions are partly controlled by a simple encryption scheme called CSS, or the Content Scramble System. The DVD Copy Control Association licenses the keys to this encryption system to the manufacturers of DVD players. Without a key, most DVDs could not be played. The manufacturer then embeds this key in its hardware design in such a way that it is easy for your player to decode and play the movie but hard, at least for a person of average technical competence, to copy the decoded "stream." 24 Because the DVD Copy Control Association will only license keys to manufacturers whose DVD players conform exactly to their specifications, the CSS scheme can also be used to control viewers in other ways. For example, DVD players are required to have one of six "region codes," depending on where in the world they are sold. Region 1 is the United States and Canada. Region 2 is Japan, Europe, South Africa, the Middle East, and--bizarrely--Greenland. Region 3 is South Korea, Taiwan, and Hong Kong; and so on. The CSS scheme can be used to restrict a movie to a player with the appropriate region code. If you try to play a movie coded for region 6 (China) in a DVD player from region 1, it will not play. This allows filmmakers to distribute different versions of films to different regions at different times based on sequential release in cinemas, or simply to distribute DVDs with different prices to different regions without worrying about whether the cheaper DVDs will "leak" into the more lucrative markets. CSS and the hardware scheme that unlocks it can also be used to prevent you from fast-forwarding through the commercials at the beginning of the movie if the copyright owner does not want you to, or from skipping the FBI notice. The machine will not do it. In fact, it is deliberately built so that it cannot do it. 25 What we have here is a digital fence that is partly used to prevent copying. Movie studios are understandably worried about the worldwide circulation of perfect digital copies of their movies. CSS was supposed to help to prevent that, or at least make it much harder. But because almost all movies are encrypted with CSS and access to the keys comes with conditions, CSS also allows a more fine-grained control over consumers. Manufacturers are not allowed to make players which can view movies from all region codes or skip portions of the DVD that the owners do not want you to skip. The licensing body puts it this way on its Web site: "Q. Under the terms of the CSS licensing agreement, is it legal for a licensed manufacturer to produce and sell a product which allows a user to disable any CSS protections? A. No. Such products are not allowed under the terms of the CSS license. They are illegal."3 A technology introduced to protect intellectual property rights allows control in ways that those rights alone do not. 26 Before the DMCA, the movie companies could have done exactly this. They could have wrapped their movies in a digital fence. The consumer electronics companies that wanted to could license a key and be allowed to use a trademark that indicated that they were approved by the DVD Copy Control Association. But what if a manufacturer of DVD players felt that American consumers wanted to be able to play their Japanese anime movies without buying another DVD player to do so? Or what if they thought people were antsy and did not want to watch the FBI notice before every film? The manufacturer could have tried to "reverse engineer" the CSS system, to figure out how it worked. If they succeeded, they could make a player that was free of the restrictions that the CSS licensing authority imposed. 27 Of course there were some legal limitations even before the DMCA. Our hypothetical manufacturer could not break into the safe where the CSS code was being held or bribe an employee to provide it. (That would be a trespass or a violation of trade secret law.) It could not violate copyright laws over the various types of software that controlled DVD players. It could not use the trademarks of any of the entities involved, including any seal of approval granted by the DVD Copy Control Association. But it could--at least in the United States--try to reverse engineer the product so as to make a competing product with features that the customers liked more. It would be no more illegal than a company making a cheaper generic razor cartridge that fits my expensive Gillette Mach 3 razor, a generic printer cartridge to replace the expensive one in my Lexmark printer, or, for that matter, a generic remote control for my garage door opener. In each case, of course, the original manufacturer would prefer that I use their products rather than the unlicensed ones. They can design their product to make it hard to use a generic replacement or even tell me that my warranty will be void if I use one. But they cannot say that the unlicensed product is illegal. We are back in option one of the Farmers' Tale, before the legislature acted. The farmers can put up their wire, and even use it to block passage that would be otherwise legal, but it is not a crime to figure out a way through the fence unless the fence cutter is also a trespasser. The DMCA, however, might have changed all of that. 28 Let us return to Mr. Johansen, the 16-year-old Norwegian. He and his two anonymous collaborators claimed that they were affected by another limitation imposed by the CSS licensing body. At that time, there was no way to play DVDs on a computer running Linux, or any other free or open source operating system. (I will talk more about free and open source software later.) Let's say you buy a laptop. A Sony Vaio running Windows, for example. It has a slot in the side for DVDs to slide in and software that comes along with it which allows the DVD reader to decode and play the disk. The people who wrote the software have been licensed by the DVD Copy Control Association and provided with a CSS key. But at the time Mr. Johansen set out to create DeCSS, the licensing body had not licensed keys to any free or open source software developers. Say Mr. Johansen buys the Sony Vaio, but with the Linux operating system on it instead of Windows. The computer is the same. The little slot is still there. Writing an open source program to control the DVD player is trivial. But without the CSS key, there is no way for the player to decode and play the movie. (The licensing authority later did license an open source player, perhaps because they realized its unavailability gave Mr. Johansen a strong defense, perhaps because they feared an antitrust suit, or perhaps because they just got around to it.) 29 Mr. Johansen and his supporters claimed strenuously that DeCSS was not in fact an aid to illicit copying. In fact, they argued that CSS was not really designed to protect DVDs against illicit copying. Commercial DVD "pirates" do not need to crack the CSS encryption. Quite the contrary: they produce exact copies of the DVD, CSS encryption and all, and the buyer's player dutifully decodes it and plays it. Mr. Johansen claimed that his goals were very different from those of the pirates. 30 The motivation was being able to play DVDs the way we want to. I don't like being forced to use a specific operating system or a specific player to watch movies (or listen to music). Nor do I like being forced to watch commercials. When your DVD player tells you "This operation is not allowed" when you try to skip commercials, it becomes pretty clear that DRM really stands for Digital Restrictions Management.4 31 In Mr. Johansen's view, CSS was simply an attempt to control consumers, an attempt which should be a valid target for legal reverse engineering. He has a point. There were indeed other ways to copy DVDs which did not require DeCSS and which gave you files of more manageable size. CSS was indeed more than a simple anticopying device. The entire scheme--the keys, the licenses, the hardware requirements--was designed to give movie studios greater control over their movies in a number of ways, some of them unrelated to copying. On the other hand, he overstated the point. One function of CSS was indeed to make it harder for the average person playing a DVD on a computer to copy the file from the DVD to her hard disk and give it to a friend. It is very easy for the average 14-year-old to take a commercial music CD, change the songs into smaller files in the MP3 format, and share them with a friend. It is not as easy to do the same thing to a DVD--not impossible, just harder--and CSS is one of the reasons why. 32 Mr. Johansen's program, DeCSS, was quickly made available worldwide. Mirror sites provided copies of the program and lists of such locations were easy to find using standard search tools. One such list was provided by the online site run by a magazine called 2600: The Hacker Quarterly. The magazine features everything from pictures of pay phones from around the world to tips on how to hack into computer or telephone systems. Its publisher is one Eric Corley, who goes by the name Emmanuel Goldstein--the resistance leader in George Orwell's 1984. 33 In 1999, Universal City Studios brought suit against a number of individuals for distributing DeCSS. The case was called Universal City Studios v. Reimerdes et al. Corley was among the defendants. The suit prominently included a claim that the defendants were violating the DMCA. It was in this case that the DMCA received its first major legal challenge. 34 Depending on the characterization of the facts, the case seems to be about very different things. It could seem a classic First Amendment fight. ("Plucky magazine publisher told copyright law forbids him from linking to other sites on the Internet!") Or it could seem the very essence of illegal activity. ("Shadowy site which unashamedly caters to computer 'hackers' tries to spread access to the burglar's tools of cyberspace!") 35 Of course, most lawsuits involve conflicts over facts. Much of what lawyers do is put the same facts into different conceptual boxes. But here, merely describing what Corley does, what hackers are, or what 2600 magazine is all about involves one in a profound culture clash. The best way to capture the clash may be to quote from an early entry about Corley in Wikipedia, the remarkable online encyclopedia. 36 The encyclopedia first quotes the description of 2600 magazine from Judge Lewis A. Kaplan, the federal district court judge who decided the Reimerdes case. 37 "2600: The Hacker Quarterly has included articles on such topics as how to steal an Internet domain name, how to write more secure ASP code, access other people's e-mail, secure your Linux box, intercept cellular phone calls, how to put Linux on an Xbox, how to remove spyware, and break into the computer systems at Costco stores and Federal Express. One issue contains a guide to the federal criminal justice system for readers charged with computer hacking. In addition, 2600 operates a web site located at 2600.com (http://www.2600.com), which is managed primarily by Mr. Corley and has been in existence since 1995." 38 The Wikipedia article then continues as follows: 39 While the judge's tone is clearly disapproving, others would point out that bookstores, movies and television channels are filled with material on how to commit murder . . . and that without the efforts of the hacker community, however illintentioned, computer insecurity would be even more of a problem than it already is.5 40 In fact, Judge Kaplan was not entirely disapproving. He mentions articles in 2600 that cover laudable or innocuous tasks, as well as others about tasks that most readers would find objectionable and rightly think to be illegal. But the anonymous volunteer who wrote this version of Corley's Wikipedia entry clearly saw the issue differently. Wikipedia does not portray the hacker community as universally benevolent ("however ill-intentioned"), but that community is also seen as providing a useful service rather than merely a set of how-to guides for would-be digital burglars. 41 To most people, pointing out vulnerabilities in computer security systems seemed, at least in 1999, like telling the world that your neighbor has forgotten to lock his door and all his possessions are there for the taking. But to the online community, it is by no means so clear. From the perspective of those who are knowledgeable in the field, there is a moral continuum. There is clearly legitimate computer security and cryptography research, which includes attempts to break into computer systems to test their defenses--that is how one finds out they are secure, after all. Then there are "hackers." This term could be used to describe those who merely like to program. Richard Stallman, for example, the originator of the free software movement, describes himself thus. But the term could also be used for those who are interested in security or interoperability--making two systems work together. That was Mr. Johansen's declared goal, after all. But some self-described hackers go further. They believe that exploring and disclosing the weaknesses of supposedly secure systems is intellectually fulfilling, practically important, and protected by the First Amendment. They disclaim both moral and legal responsibility for the consequences of their disclosures. (Or at least the negative consequences; they frequently take credit for the positive consequences, such as improved security.) Finally, there are "crackers," whose interest in gaining entry to computer systems is malicious or for financial gain. At what point on this continuum does the activity become legally, or morally, unacceptable? As the Reimerdes trial went on, it became clear that the answer the DMCA gave might not be the same as the one given even by undeniably legitimate computer scientists. 42 A large number of legal arguments were involved in the Reimerdes case, but for our purposes here the most important ones dealt with the relationship between copyright and the First Amendment. What is that relationship? 43 In one obvious sense copyright actually aids free speech. By providing an incentive to create works, copyright "add[s] the fuel of interest to the fire of genius,"6 and thus helps to create the system of decentralized creative production and distribution I described in Chapter 1. But copyright also restrains speech. At its base, it allows an individual to call upon the state to prevent someone from speaking or expressing themselves in a particular way. This may involve a simple refusal to let the speaker use some text, picture, verse, or story in their message, or it may involve a refusal to let them transform it in some way. 44 Neither copyright law nor the American Constitution is blind to these dangers. Copyright has a number of built-in safeguards. The most important of these is that copyright only covers "original expression"--both the ideas and facts in this book can be used by anyone without my permission. Thus, goes the theory, the speaker's freedom of expression is never truly restrained. The only thing I am barred from is using your words, your exact plot, your photograph, your music--not your facts, your ideas, your genre, the events you describe. 45 That is not always enough, of course. Sometimes the problem is that the speaker cannot paraphrase around the restraints posed by copyright. He needs to use the particular text or image in question to convey his message. The ideas, the facts, or a mere paraphrase of the expression would not be enough. In cases like that copyright's answer is "fair use." A politician could not prevent journalists who disagree with him from quoting his autobiography in discussing his life. If an African-American author wishes to tell the story of Gone With the Wind from the slaves' perspective, she may do so in the face of the copyright holders' attempts to stop her. Even fair use, though, may not cover every concern about free expression. Before World War II, Alan Cranston--later a U.S. Senator--wanted to convince American readers that the version of Hitler's Mein Kampf published in the United States was distorted. He believed it to be slanted toward American sensibilities, downplaying both anti-Semitism and German expansionism. His solution? To publish his own English translation, taken direct and uncut from the German edition. He wanted to prove, with Hitler's own words, that the United States had a dangerously distorted version of the German leader. But this is the kind of thing copyright law forbids and it is not clear that fair use allows. (In the end he did it anyway.)7 46 For the moment though, it is enough to realize that copyright law is not immune from the First Amendment or from free speech concerns more generally. If we do not notice that most of the time, it is because the internal limitations of copyright--fair use, the idea-expression distinction, and so on--generally take care of the First Amendment issue, not because the issue was never there. 47 So what First Amendment issues did the DMCA present? Most obviously, the DMCA gave a new right to copyright owners. By using a few simple technological measures, they could distribute a work in a particular format and yet, because of their new intellectual property right, they could make illegal an otherwise lawful process of gaining access for the purposes of making fair use. Of course, the First Amendment allows me to make fair use factually impossible. I can do that without raising any constitutional issues by hiding my manuscript and never letting you see it or just by using unbreakable encryption on my digital products. It allows me to use existing conventional property rights to make fair use illegal. If I own the only copy of the book and it is inside my house, it would be trespass for you to enter. No First Amendment problem there. But in passing the DMCA, Congress had created a new intellectual property right inside copyright law itself, a law aimed directly at expression, that made it illegal to get access for the purpose of making fair use even when you legally bought the physical book, or the physical DVD, and now wish to quote it or parody it. Even that is not the problem. It is that Congress cannot grant the exclusive rights of copyright without simultaneously accompanying them by the limitations of fair use.8 Regardless of what physical constraints and tangible property rights might do to limit my ability to make fair uses, Congress had now, by law, allowed a copyright owner to distribute a particular work with the exclusive rights but without some of those limitations. 48 Imagine that Congress had passed the following law instead of the DMCA: "Any copyright owner can make it illegal to make a fair use of a copyrighted work by putting a red dot on their books, records, and films before selling them. It shall be a crime to circumvent the red dot even if, but for the dot, the use would have been fair." That would be clearly unconstitutional. It gives copyright owners a new intellectual property right to "turn off fair use" in copyrighted works distributed to the mass market. Is the DMCA not the same thing? 49 This was the issue in Reimerdes. True, if I cut through the digital fence on a DVD in order to excerpt a small portion in a critical documentary, I would not be violating your copyright, but I would be violating the anticircumvention provisions. And DeCSS seemed to be a tool for doing what the DMCA forbids. By providing links to it, Mr. Corley and 2600 were "trafficking" in a technology that allows others to circumvent a technological protection measure. DeCSS could, of course, be used for purposes that did not violate copyright--to make the DVD play on a computer running Linux, for example. It enabled various noninfringing fair uses. It could also be used to aid illicit copying. But the alleged violation of the DMCA had nothing to do with that. The alleged violation of the DMCA was making the digital wire cutters available in the first place. So one First Amendment problem with the DMCA can be stated quite simply. It appeared to make it illegal to exercise at least some of the limitations and exceptions copyright law needs in order to pass First Amendment scrutiny. Or did it just make it very, very difficult to exercise those rights legally? I could, after all, make a videotape of the DVD playing on my television, and use that grainy, blurry image in my documentary criticizing the filmmaker. The DMCA would not be violated, though my movie might be painful to watch. 50 The other possible First Amendment problem with the DMCA was that in regulating programs such as DeCSS, the DMCA was actually regulating "speech." The first challenge to the DMCA was that, by making tools like DeCSS illegal, the DMCA took away a constitutionally necessary escape hatch to copyright, thus making copyright law as a whole violate the First Amendment's guarantee of freedom of speech. The second challenge was different. The problem was that the program itself was speech and the DMCA was regulating it illicitly. 51 The reasoning went like this. A computer program is a form of expression and communication. The source code can even be read by human beings. True, it is an abstract form of communication--like musical notation and mathematical algorithms. But those are clearly protected by the First Amendment. Congress could not make Schoenberg's twelve-tone scale illegal or punish mathematicians for physics equations that seemed to support a theory of the universe's origin other than the creationism that is currently so popular. True, the source code is a description of a method of doing something, and the code can, if run on a computer, produce a result--but one could argue that those attributes do not affect the First Amendment's protection. Neither a recipe for hash brownies nor a player piano roll for the Nazi "Horst Wessel" song could constitutionally be prohibited, even though actually to make the hash brownies would be illegal, and even though the piano roll is functional (it "makes" the player piano play the tune). True, most people cannot read computer code, but speech does not need to be common or accessible to be protected. In fact, the courts have even held that the choice to communicate in a particular language is constitutionally protected in some settings. 52 On the other hand, software code is undeniably functional. Lots of functional articles can be said to have some expressive content--a gun, an airbag, a crash helmet, a set of burglar's tools, a computer virus. And many actions have expressive content: a terrorist bombing, for example. Surely these could be regulated by Congress? To the defendants, DeCSS looked like a physics equation, a musical score, or a recipe. To the movie studios, DeCSS had all the First Amendment significance of a crowbar, lock pick, or, for that matter, a car bombing. The same argument was repeated over the hyperlinks that Corley and others provided to sites which carried the DeCSS program. Speech or function? To the defendants, forbidding 2600 to link to these sites was like preventing the Washington Post from describing the availability of drugs on certain blocks of 16th Street. To the movie companies, the hyperlinks were the equivalent of loading potential buyers into a van, taking them down there, and giving them enough money to make the purchase. 53 Which of the two First Amendment arguments is more convincing? That the DMCA is a congressionally created off-switch for fair use? Or that software code is speech and the DMCA restricts it? Like a lot of scholars, before Reimerdes went to trial, I thought that the first argument was by far the more powerful. I still do. I thought the odds of the court buying the "code is speech" argument were low. About that I was wrong, though it turned out not to matter. 54 A number of the reports noted that after some initial skepticism, Judge Kaplan had been impressed by the defendants' expert witnesses, particularly those who had testified that code was speech. When the ruling came out, this impression was confirmed. Judge Kaplan agreed that code was a form of speech or expression. But celebration was premature. Having done so, he disagreed with the defendants' claim that it could not be regulated. 55 Computer code is expressive. To that extent, it is a matter of First Amendment concern. But computer code is not purely expressive any more than the assassination of a political figure is purely a political statement. Code causes computers to perform desired functions. Its expressive element no more immunizes its functional aspects from regulation than the expressive motives of an assassin immunize the assassin's action. In an era in which the transmission of computer viruses-- which, like DeCSS, are simply computer code and thus to some degree expressive-- can disable systems upon which the nation depends and in which other computer code also is capable of inflicting other harm, society must be able to regulate the use and dissemination of code in appropriate circumstances. The Constitution, after all, is a framework for building a just and democratic society. It is not a suicide pact.9 56 Judge Kaplan is right in saying that there cannot be a bright- line rule immunizing computer code from regulation merely because it has expressive elements. The First Amendment does not protect computer viruses. But the defendants were not arguing that computer code was constitutionally inviolable, only that any law that regulated it had to be subject to First Amendment scrutiny. After all, the government makes the description of how to make a nuclear weapon classified information. That is clearly "speech," but its regulation is also constitutional. The First Amendment is not, and never was, an absolute guarantee of freedom of speech. Instead, the question is whether the law is within the realm of "the freedom of speech" guarantee, which in turn depends on what kind of a law it is. Where does it fit in the "levels of scrutiny" that courts have constructed to discriminate between types of legislation affecting speech? Is the DMCA a "content-based" regulation, such as a law forbidding labor picketing but allowing other kinds of demonstrations? Content-based regulations are given the highest and most demanding level of scrutiny. Alternatively, is it a "content- neutral" regulation, such as a law that forbids talking--about any subject--in a library? To Judge Kaplan, the answer was clear, and grounds for sarcasm. 57 The reason that Congress enacted the anti-trafficking provision of the DMCA had nothing to do with suppressing particular ideas of computer programmers and everything to do with functionality--with preventing people from circumventing technological access control measures--just as laws prohibiting the possession of burglar tools have nothing to do with preventing people from expressing themselves by accumulating what to them may be attractive assortments of implements and everything to do with preventing burglaries. 58 I agree, though it is worth noting that the burglar tool analogy is a disputed one. Johansen claimed DeCSS was more like a screwdriver--something with both licit and illicit uses. 59 So the DMCA was content-neutral regulation. That means it still has to pass a fairly daunting legal threshold. It will only be upheld if "it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest."10 Judge Kaplan felt that the DMCA satisfied that standard. I am not so sure. Yes, the governmental interest in protecting copyright holders' rights is important. And yes, I must disagree with some of my friends in the civil liberties world and say that the government's interest is unrelated to the suppression of free expression. But is "the incidental restriction of First Amendment freedoms no greater than is essential to the furtherance of that interest"? In other words, could the DMCA have achieved its goals without imposing as great a limitation on the expression of people like Mr. Johansen and Mr. Corley? 60 Congress could have passed many laws less restrictive than the DMCA. It could have only penalized the use of programs such as DeCSS for an illicit purpose. If it wished to reach those who create the tools as well as use them, it could have required proof that the creator intended them to be used for illegal purposes. Just as we look at the government's intention in creating the law, we could make the intent of the software writer critical for the purposes of assessing whether or not his actions are illegal. If I write a novel detailing a clever way to kill someone and you use it to carry out a real murder, the First Amendment does not allow the state to punish me. If I write a manual on how to be a hit man and sell it to you, it may. First Amendment law is generally skeptical of statutes that impose "strict liability" without a requirement of intent. But Judge Kaplan believed that the DMCA made the motives of Mr. Johansen irrelevant, except insofar as they were relevant to the narrowly tailored exceptions of the DMCA, such as encryption research. In other words, even if Mr. Johansen made DeCSS so that he and his friends could watch DVDs they purchased legally on computers running Linux, they could still be liable for breaking the DMCA. 61 The DMCA's breadth goes further than its treatment of intent. The statute could have only made it illegal to provide a program yourself. But Judge Kaplan interpreted it to prohibit even linking to a site where the program is to be found. No requirement of intent. No requirement that you actually supply the infringing program. That is a pretty broad interpretation and one which he admits restricts expression. How could he conclude that restrictions this broad were "no greater than essential"? From his rhetoric, the answer is clear. Judge Kaplan believes the story of the Internet Threat I discussed in Chapter 4. He sees DeCSS as a poison. In fact, he thinks it is worse than a poison because it may spread to infect others. It is a disease, a virus. The DMCA is the stern and harsh quarantine required to control it--a digital public health measure. His reasoning is worth quoting at length. 62 There was a time when copyright infringement could be dealt with quite adequately by focusing on the infringing act. . . . The copyright holder . . . usually was able to trace the copies up the chain of distribution, find and prosecute the infringer, and shut off the infringement at the source. In principle, the digital world is very different. Once a decryption program like DeCSS is written, it quickly can be sent all over the world. Every recipient is capable not only of decrypting and perfectly copying plaintiffs' copyrighted DVDs, but also of retransmitting perfect copies of DeCSS and thus enabling every recipient to do the same. . . . The process potentially is exponential rather than linear. Indeed, the difference is illustrated by comparison of two epidemiological models describing the spread of different kinds of disease. In a common source epidemic, as where members of a population contract a non-contagious disease from a poisoned well, the disease spreads only by exposure to the common source. If one eliminates the source, or closes the contaminated well, the epidemic is stopped. In a propagated outbreak epidemic, on the other hand, the disease spreads from person to person. Hence, finding the initial source of infection accomplishes little, as the disease continues to spread even if the initial source is eliminated.11 63 This is a very good point, and one that the critics of the DMCA sometimes gloss over too quickly. The structure of digital replication is indeed different from the old centralized model of copying and distribution. Instead of tracing all illicit copies back to a single infringing printing press, we face the fear that the machinery of piracy can be copied just as fast as the copies it allows us to make. 64 It is here that the defendants lose the battle of the metaphors. Yes, code is speech, it conveys information. But viruses are codes and they convey information too. Judge Kaplan explicitly invokes this comparison several times. Biological viruses are tools for the replication of genetic information. They subvert their hosts' cellular programming to make copies of themselves, just as a computer virus hijacks an infected computer and causes it to send out more copies of the virus. True, DeCSS requires human intervention to download the program and use it. Yet from Judge Kaplan's language it is evident that he sees the program not as an act of expression but as a virus spreading like wildfire. Seen this way, the individual "choices" to download or redistribute are simply the program's method of spreading itself, like the irritation produced by the cold virus that encourages sneezes and coughs, thereby transmitting the illness to others. Just as in an epidemic, the harshest measures are called for. There is no poisoned well here, no pirate with a printing press we can shut down. Anyone is potentially an infringer. Individuals cannot be presumed to be healthy. We cannot give their immune systems, or their motives, the benefit of the doubt. Instead we must see them as potential carriers. The healthy must be quarantined as well as the sick. Facing such a danger, Judge Kaplan agrees that Congress needed to be draconian. We cannot wait for illegal copying. We must strike preemptively at the technology that might enable it. There is no place for inquiries into "intent" here; no way that we can restrict liability to those who actually provide the program. Thus, though "code is speech" and the DMCA does incidentally restrict expression, Judge Kaplan concludes that its restraints are no greater than is necessary. 65 There are three questions here. The first is whether Congress was right. The second is whether, in the context of the movie industry, we can see evidence of the evil it needed to combat. The third question is very different: whether the DMCA is constitutional. In my opinion, the answer to questions one and two is no, for the reasons outlined in Chapter 4's analysis of the Internet Threat. Yes, cheaper copying can increase the rate of illicit copying, but it also lowers advertising costs and offers new business models--Netflix, downloads on demand, viral distribution of trailers, and so on. The technology helps as well as hurts. It does not help the movie industry as much as it might help the music industry, which can more easily distribute its products over the Internet. But the Internet also does not pose as much danger to movies as it does to music. The movie industry's doomsaying aside, there is no exact movie equivalent of Napster and there is unlikely to be one in the near future.12 66 This is not just because movies are longer and harder to download than songs. It is because most people only watch a film once. Most people do not want a library of two thousand films to play again and again. Music is a repeated experience good in a way that movies simply are not, and that social fact profoundly affects the likelihood of downloading as opposed to rental. The transient song on a radio or an Internet stream is not an adequate substitute for possessing the song permanently--something which costs a lot more. Apart from kids' movies, which can be used to induce catatonia in one's progeny time and again, and a few classic favorites, most people do not want to own movies. Watching the film on television or renting it for a night is perfectly satisfactory. Both of these involve little hassle or cost. The content industries are fond of saying "you cannot compete with free." But this is simply not true. Cheap and easily acquired goods of certified quality compete very well with free goods of uncertain quality whose acquisition involves some difficulty. This is one of the main reasons the movie companies were wrong in the Sony case. 67 Thus while Judge Kaplan's discussion of the looming digital Black Death is nicely apocalyptic, it does not seem very accurate. How many of your friends download movies illicitly over the Internet, let alone movies that were ripped from DVDs? Yes, it can be done. But the actual descriptions of the process in the Reimerdes case smack more of bathos than terror. 68 Although the process is computationally intensive, plaintiffs' expert decrypted a store-bought copy of Sleepless in Seattle in 20 to 45 minutes. . . . The decryption of a CSS- protected DVD is only the beginning of the tale, as the decrypted file is very large. . . . One solution to this problem, however, is DivX, a compression utility available on the Internet that is promoted as a means of compressing decrypted motion picture files to manageable size. . . . While the compressed sound and graphic files then must be synchronized, a tedious process that took plaintiffs' expert between 10 and 20 hours, the task is entirely feasible. . . . At trial, defendants repeated, as if it were a mantra, the refrain that plaintiffs, as they stipulated, have no direct evidence of a specific occasion on which any person decrypted a copyrighted motion picture with DeCSS and transmitted it over the Internet. But that is unpersuasive. Plaintiffs' expert expended very little effort to find someone in an IRC chat room who exchanged a compressed, decrypted copy of The Matrix, one of plaintiffs' copyrighted motion pictures, for a copy of Sleepless in Seattle. While the simultaneous electronic exchange of the two movies took approximately six hours, the computers required little operator attention during the interim. 69 So the epidemic threat that hangs over the movie industry consists of the danger that someone will spend fifteen minutes decrypting and ten to twenty hours tediously synchronizing a movie that is then available for a speedy six-hour download? 70 Admittedly, someone only needs to do the synchronizing once. There are newer tools that make the task easier. And we could improve the download time. But even so, would you bother? Faced with the colossal expense and hassle of renting the same movie at Blockbuster for $3, some consumers might prefer this process, I suppose. But I would not sell my shares in movie studios quite yet. In fact, the real threat to movie studios is the large- scale criminal distribution of illicitly copied DVDs--copied bit for bit from the original. The distributors of those do not need to use programs like DeCSS. A more distant threat comes from legal recordings from television made on TiVo's and ReplayTVs--where consumers' actions are legal and CSS is not an issue. So far as we can tell, there is no measurable effect of illicit digital downloads on sales or rentals of DVDs. We could go through the process Judge Kaplan describes, I suppose, just as when the VCR was invented we could have taped movies from television and swapped them with our friends. But as the movie studios discovered after the Sony case, most of us would rather just rent the movie. Because something is possible does not mean it will happen. 71 So in my view, Congress generally overestimated the threat posed by the digital world and underestimated the benefits. In addition, the movie industry is a weak place to make the case for the necessity of the DMCA. Fine, but that is not the legal issue here. The constitutionality of the DMCA does not turn on whether the DMCA was a good idea. That is not the court's decision to make. The question is not even whether the particular industry involved is, in reality, facing much of a threat from digital downloading. The law, after all, exists for all digital works, not just the ones at issue here. The question is whether the restriction on speech imposed by the DMCA was "no greater than is essential." And that is a harder question. 72 I still disagree with Judge Kaplan. A more narrowly tailored statute could have accomplished the DMCA's legitimate goals without impinging as greatly on expression. I think that the rhetoric of the Internet Threat blinded Judge Kaplan to some important issues and led him to overestimate the danger and thus the severity of the measures necessary to combat it. Thus, even under the "code is speech" part of the analysis, I think the DMCA fails First Amendment scrutiny. But if we are confining ourselves to the expression inherent in the software itself, I acknowledge that it is a close call. 73 Sadly, Judge Kaplan spent much less time on the other First Amendment argument against the DMCA--that it is unconstitutional because it gives copyright holders a new intellectual property entitlement, created by Congress under the Copyright Clause, a legal power to deprive users of a constitutionally required limitation on copyright's exclusive rights. In my view, he also framed the argument wrongly when he did discuss it. To be fair, these problems can partly be traced to the fact that the defendants spent most of their energy on the argument that code was expression, paying less attention to everything else. As Judge Kaplan explained it, the claim was that the DMCA might have the effect of restricting an alleged fair use right of access to copyrighted material. Predictably enough, he responded that there was no such right of access. Copyright holders could always lock up the book or restrict entrance to the gallery. In any event, while fair use of DVDs might be curtailed, he argued that most movies are also available on videotape. Even if the film were only available on DVD, the prospective fair user could write down the words and quote them, or record the sound from the screen. Finally, Judge Kaplan pointed out that even if the DMCA might allow a significant erosion of fair use to develop over time, such a problem was not present here. Those making First Amendment claims are sometimes allowed by courts to show that, even if the law as it applied to them were constitutional, it would restrict the First Amendment rights of others. Judge Kaplan declined to apply that doctrine here. In effect, he said "come back when there is a problem." 74 On appeal, the case was decided by a panel led by Judge Jon Newman. Here the fair use argument received more attention but the result was the same: "Come back when there is a problem." Significantly, both courts pointed out another concern. The DMCA could effectively make copyright perpetual because even though the copyright term would expire, the legally protected encryption would continue, and tools such as DeCSS, which would have allowed access to the public domain work, would be illegal.13 This is a major issue because it appears to violate both the First Amendment and the Copyright Clause's requirement of a limited time. The defendants did not spend adequate time on this argument, however, and the courts again left it for later consideration. 75 The court of appeals saw the defendants' argument in just the same way as Judge Kaplan had seen it: a claim that there was a fair use right of actual access to the finest version of every work in every medium, on which the DMCA put a practical limitation. Such a claim was easy to dismiss. There was no such right of guaranteed practical access. Copyright owners could restrict the practical ability to exercise fair use in many ways without the Constitution being involved. In addition, in a world where copyrighted content is frequently available in both analog and digital form, the actual effects of the DMCA might be trivial and were, in any event, constitutionally acceptable. Judge Newman repeated Judge Kaplan's point that one could always make fair use of the work in a way the DMCA did not reach, such as by videotaping a picture of the screen. 76 The fact that the resulting copy will not be as perfect or as manipulable as a digital copy obtained by having direct access to the DVD movie in its digital form, provides no basis for a claim of unconstitutional limitation of fair use. A film critic making fair use of a movie by quoting selected lines of dialogue has no constitutionally valid claim that the review (in print or on television) would be technologically superior if the reviewer had not been prevented from using a movie camera in the theater, nor has an art student a valid constitutional claim to fair use of a painting by photographing it in a museum. Fair use has never been held to be a guarantee of access to copyrighted material in order to copy it by the fair user's preferred technique or in the format of the original. 77 Once the issue is framed this way, the case has been lost. I would argue that there are three baseline errors here: a focus on "affirmative rights of access" as opposed to limits on Congress's power in handing out exclusive rights over expression without their constitutionally necessary limitations, a focus on practical effects of the provisions rather than on formal constitutional limitations on the copyright system over all classes of works, and a confusion between intellectual property rights and physical property rights that goes to the heart of the Jefferson Warning discussed in Chapter 2. The question is not whether users have a constitutionally protected right of practical access to a preferred version of a work. The question is whether it violates the First Amendment for Congress to give to copyright holders an intellectual property right to exempt their copyrighted works in some formats from fair use and other provisions that are necessary for copyright law in general to be constitutional. 78 Remember my earlier example. What if Congress amended Section 1201 to say "Any copyright owner can make it illegal to make a fair use of a copyrighted work by putting a red dot on their books, records, and films before selling them. It shall be a crime to circumvent the red dot even if, but for the dot, the use would have been fair"? This statute, I think, is clearly unconstitutional. It would be no answer to say that some owners will not use the red dot, and even for those that do, there will be older, dotless versions still available. It is irrelevant that I might be able to copy down the crucial lines of the book over your shoulder while you read it and thus claim that I, personally, had not circumvented the dot. The unconstitutionality of the statute does not turn on whether the dots might fall off because of bad adhesive, or whether there are many secondhand bookstores in the area, in which undotted volumes can be found. Even if the red dot rule were only to be applied to hardback books, or graphic novels, or cassette tapes, it would still be unconstitutional. Nor do we have to wait until the entire marketplace is dominated by red-dotted products before considering the issue. It is no answer to say that even before the red dot rule, copyright holders could always have hidden their works, or locked them in safes, or even negotiated individual contracts with the purchasers that have the effect of limiting fair use. That way of framing it just misunderstands the issue on a fundamental level. The claim is not about the happenstance of practical access or the way that a copyright holder can use physical control of an object or existing tangible property rights to undercut fair use. 79 The point is that Congress violates the First Amendment when, with respect to any work, it gives me an intellectual property right to prohibit copying and distribution of an expressive work sold in the marketplace and an additional legal power to opt out of the limitations contained in Section 107 over that work. The bundle of rights conveyed by the DMCA does exactly that. It is not the DMCA alone that we must analyze. The question is whether Congress can give the exclusive rights contained in Section 106 of the Copyright Act over a particular class of works (say digital works), if it also gives a new right to prohibit citizens from gaining access to those works for the purposes of making a fair use. If Judge Kaplan and Judge Newman are correct, then the DMCA gives an entirely new intellectual property right (technically, a legal power) to the copyright holders to do exactly that. To put it the other way around, the DMCA subtracts from the citizen's bundle of entitlements under federal copyright law, the right (technically, lawyers would call it a privilege) to gain access to a work legally in his possession for the purpose of making a fair use. It is that rule change that is unconstitutional, I would argue, and the way Judge Kaplan and Judge Newman frame that issue makes them miss the point. 80 Framing is important. The confusions that I have talked about in this book all make an appearance. It starts with the whole controversy being framed by the Internet Threat story line from Chapter 4. Because Judge Kaplan is convinced that every citizen is now a potential infringer, a potentially infectious virus carrier, he is ill disposed to listen to claims about fair use. Civil liberties claims do not do very well in epidemics. It is only right for him to defer to Congress's perception of the problem and the solution, of course. But he buys so deeply into the magnitude of the threat, the extent of the potential piracy pandemic, that it is very hard for him to take seriously the idea that even here there is a legitimate constitutional fair use claim. 81 The Sony Axiom from Chapter 4 is also ignored, or at least undervalued. As I pointed out there, without a robust set of exceptions and limitations on copyright, the idea that cheaper copying requires greater control will inexorably drive us toward the position that the technologies of cheaper reproduction must be put under the governance of copyright holders. The DMCA continues that logic; its drafters concluded that the right to get access to digital works for purposes of making a fair use must be taken from the bundle of rights possessed by citizens, while the right to enjoin both access and the technologies of access is added to those of copyright holders. Never mind the correctness of such a conclusion as a matter of policy. Are there constitutional limitations on Congress taking such an action? Kaplan and Newman in effect tell us, "not yet." 82 More important than the perception of the threat is the understanding of what intellectual property is all about. In Chapter 2, Jefferson warned us that intellectual property rights are not like physical property rights. In analyzing the DMCA, where do we turn for analogies? To physical property, violence, and theft. The cases analyzing the DMCA are full of analogies to trespass, to breaking and entering, to burglars' tools, and to safecrackers. Private property carries a lot of baggage with it, but we know it well--it is the place we naturally turn for insight. Even I, in order to point out some of the difficulties with those analogies, had to turn to farmers and barbed wire and public rights-of-way along highways. There is nothing wrong with analogies. They help us understand things that are new by comparing them to things we think we understand better. Analogies are only bad when they ignore the key difference between the two things being analyzed. That is what happens here. 83 Jefferson reminded us that intellectual property rights are clearly artifacts of state creation, monopolies whose internal limitations in scope, duration, and so on are just as important as the rights themselves. Jefferson doubts whether even property rights over land can be understood as natural and absolute--copyrights and patents, which cover subject matter that can be infinitely reproduced without diminishing its substance, clearly cannot. They frequently involve a claim to control purchasers' behavior with respect to some aspect of an artifact after it has been sold to them in the marketplace, making simpleminded analogies to "breaking and entering" inappropriate--the extent of the property in question is precisely the issue in dispute. (When Johansen was tried in Norway under the national computer crime law, the court laconically observed that he had bought the DVDs, and one cannot break into one's own property--effectively turning the analogy on its head.) Jefferson starts from the baseline that monopoly is the exception and freedom is the rule--any limitations on that freedom have to be justified. That is why he always discusses the right and the limitations on the right as an inseparable pair. One cannot discuss them in isolation. 84 Kaplan and Newman are fine, thoughtful judges. They do not altogether ignore those points. But look how the analysis is set up. At several points in the discussion, there seems to be the assumption that copyright owners have entitlements to total control as of right and that fair use is a mere lucky loophole which, because it can be negated by the happenstance of whether one can get physical access, can hardly have major First Amendment status. They keep pointing out that physical control and tangible property rights frequently allow copyright holders to make fair use impracticable. "And so what?" Jefferson might have responded. This is a classic non sequitur. The question is whether the Congress has the power to add a new right of access- denial to the intellectual property monopoly it is constructing, undermining--as to some works and some fair uses--the balance that the law sets up. The citizen is not pleading for a new right of access, trumping all physical restraint and tangible property rights. The citizen is claiming that Congress has no power to give exclusive rights to restrain copying of digital content while simultaneously taking away the citizen's existing right to get access to that content for the purposes of fair use--at least in those cases where access is physically possible and violates no other property right, real or intellectual. 85 The Constitution does not require the United States to break into President Nixon's desk to get me his tapes, buy me a tape recorder, or give me a right to 18.5 minutes on the broadcast airwaves to play them. But if I can get access to the tapes legally, it does forbid the government from giving President Nixon the power to put a red dot on those tapes and thus claim an intellectual property right to stop me playing them on TV or digitizing them to make the sounds clearer. The restraints imposed by physical happenstance and tangible property rights are different from those imposed by copyright--a congressionally created monopoly over expression. We cannot assume because one is constitutionally acceptable that the others are too. Jefferson understood that, and his analysis can help us even in a constitutional conflict over a technology he could hardly have dreamt of. (Though perhaps with Jefferson, this is a bad bet.) 86 The same point comes up in a different way when the court disconnects the fair use discussion from the exclusive rights discussion. The question is not "Do I have a constitutionally protected right of physical access to a preferred version of a movie, so as to make my task easy?" That gets the court caught up in questions of when a majority of movies will only be available on DVD, or how poor a substitute the analog version would be, or how many fair uses will require actually cutting a digital fence. But all of these inquiries miss the point. The question is "Can Congress hand out the exclusive rights of copyright over digital works if it does not accompany those rights with the suite of limitations that the court has repeatedly said "saves" copyright from violating the First Amendment?" The proportion of digital works to the total number of works produced in other formats is irrelevant. As to these works, the rule is unconstitutional. But what about the number or proportion of types of fair uses affected? That is more relevant but still not dispositive in the way Kaplan and Newman imagined. True, not every trivial statutory modification of fair use makes copyright unconstitutional. But this is not a trivial modification: over an entire class of works, copyright owners are given a legal power to deprive users of their privilege to gain otherwise lawful access for the purposes of fair use. If you give the digital filmmaker the exclusive rights of copyright but forbid the film professor from going through the otherwise lawful process of parodying or quoting, that rule is unconstitutional, no matter how many other fair uses are unaffected. If the copyright law were amended to forbid journalists playing, on a Friday, excerpts of legally acquired red-dotted tapes made by presidents whose last name begins with N, it would still be unconstitutional. 87 The legal implementation of this conclusion would be simple. It would be unconstitutional to punish an individual for gaining access in order to make a fair use. However, if they cut down the digital fence to make illicit copies, both the cutting and the copying would be illegal. But what about the prohibition of trafficking in digital wire cutters, technologies such as DeCSS? There the constitutional question is harder. I would argue that the First Amendment requires an interpretation of the antitrafficking provisions that comes closer to the ruling in the Sony case. If Mr. Johansen did indeed make DeCSS to play DVDs on his Linux computer, and if that were indeed a substantial noninfringing use, then it cannot be illegal for him to develop the technology. But I accept that this is a harder line to draw constitutionally. About my first conclusion, though, I think the argument is both strong and clear. 88 Ironically, there is some support for my claim and it comes from an even higher, if not uniformly more thoughtful, set of judges than Newman and Kaplan. In the depressing case of Eldred v. Ashcroft, the Supreme Court upheld retrospective copyright term extensions against a variety of constitutional challenges. (Full disclosure: I assisted in the preparation of an amicus curiae brief in the case.) One of those challenges was based on the First Amendment. The fairly reasonable claim was that Congress could not retroactively lock up an entire twenty-year swathe of culture that had already been produced. Such a law would be all restraint of expression, performance, republication, adaption, and so on, with no incentive benefits. The Court was unconvinced. But it did say: 89 To the extent such assertions raise First Amendment concerns, copyright's built-in free speech safeguards are generally adequate to address them. We recognize that the D.C. Circuit spoke too broadly when it declared copyrights "categorically immune from challenges under the First Amendment." . . . But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.14 90 The DMCA, of course, does exactly this. As to digital works it alters the "traditional contours of copyright protection" in a way that affects "copyright's built-in free speech safeguards." That is what the Farmers' Tale was all about. Perhaps one day, in a case not involving a Norwegian teenager, a hacker magazine run by a long-haired editor with an Orwellian nom de plume, and an obscure technology that is accused of posing apocalyptic threats to the American film industry, that point will come out more clearly. 91 But the issue of speech regulation is only half of the story. Intellectual property rights over digital technologies affect not only speech, but the framework of competition and markets as well, as the next example makes clear. 92 The Apple of Forbidden Knowledge: The DMCA and Competition 93 You could tell it was a bizarre feud by the statement Apple issued, one strangely at odds with the Californian Zen-chic the company normally projects. "We are stunned that RealNetworks has adopted the tactics and ethics of a hacker to break into the iPod, and we are investigating the implications of their actions under the DMCA and other laws."15 94 What vile thing had RealNetworks done? They had developed a program called Harmony that would allow iPod owners to buy songs from Real's Music Store and play them on their own iPods. That's it. So why all the outrage? It turns out that like the story of DeCSS, this little controversy has a lot to teach us about the landscape of intellectual property disputes, about the mental topography of the high-tech economy. But where the DeCSS case was a war of metaphors around the boundaries of freedom of expression, the iPod story is about ways in which intellectual property marks the limits of competition. 95 Apple iPods can be used to store all kinds of material, from word processing documents to MP3 files. If you want to use these popular digital music players to download copy-protected music, though, you have only one source: Apple's iTunes service, which offers songs at 99 cents a pop in the United States, 79 pence in the United Kingdom. If you try to download copy-protected material from any other service, the iPod will refuse to play it. Or at least, that had been the case until Real managed to make their Harmony service compatible. 96 Real's actions meant that consumers had two sources of copy- protected music for their iPods. Presumably all the virtues of competition, including improved variety and lowered prices, would follow. The iPod owners would be happy. But Apple was not. The first lesson of the story is how strangely people use the metaphors of tangible property in new-economy disputes. How exactly had Real "broken into" the iPod? It had not broken into my iPod, which is after all my iPod. If I want to use Real's service to download music to my own device, where's the breaking and entering? 97 What Real had done was make the iPod "interoperable" with another format. If Boyle's word processing program can convert Microsoft Word files into Boyle's format, allowing Word users to switch programs, am I "breaking into Word"? Well, Microsoft might think so, but most of us do not. So leaving aside the legal claim for a moment, where is the ethical foul? 98 Apple was saying (and apparently believed) that Real had broken into something different from my iPod or your iPod. They had broken into the idea of an iPod. (I imagine a small, platonic white rectangle, presumably imbued with the spirit of Steve Jobs.) Their true sin was trying to understand the iPod so that they could make it do things that Apple did not want it to do. As an ethical matter, does figuring out how things work, in order to compete with the original manufacturer, count as breaking and entering? In the strange netherworld between hardware and software, device and product, the answer is often a morally heartfelt "yes!" I would stress "morally heartfelt." It is true manufacturers want to make lots of money and would rather not have competitors. Bob Young of Red Hat claims "every business person wakes up in the morning and says 'how can I become a monopolist?' " Beyond that, though, innovators actually come to believe that they have the moral right to control the uses of their goods after they are sold. This isn't your iPod, it's Apple's iPod. 99 Yet even if they believe this, we don't have to agree. In the material world, when a razor manufacturer claims that a generic razor blade maker is "stealing my customers" by making compatible blades, we simply laugh. The "hacking" there consists of looking at the razor and manufacturing a blade that will fit. To say this is somehow immoral seems laughable. Is the conclusion changed when the information about compatibility is inscribed in binary code and silicon circuits, rather than the molded plastic of a razor cartridge? What if ensuring the "fit" between the two products is not a matter of making sure the new blades snugly connect to the razor but of making sure the software embedded in my generic product sends the right code to the original product in order to be recognized? Our moral intuitions are a little less confident here. All kinds of bad policy can flourish in that area of moral uncertainty. 100 This leads us to the law. Surely Apple's suggestion that the DMCA might prohibit what Real had done is as baseless as their moral argument? In the United States, the answer is "probably," at least if the courts continue in the direction they are currently taking, but it is a closer call than you would think. Internationally, the answer is even less certain. That is where the iPod war provides its second new-economy lesson. Think for a moment about the way that the law shapes the business choices in this dispute. 101 In a competitive market, Apple would choose whether to make the iPod an open platform, able to work with everyone's music service, or to try to keep it closed, hoping to extract more money by using consumers' loyalty to the hardware to drive them to the tied music service. If they attempted to keep it closed, competitors would try to make compatible products, acting like the manufacturers of generic razor blades or printer cartridges. 102 The war would be fought out on the hardware (and software) level, with the manufacturer of the platform constantly seeking to make the competing products incompatible, to bad-mouth their quality, and to use fear, uncertainty, and doubt to stop consumers from switching. (Apple's actual words were: "When we update our iPod software from time to time, it is highly likely that Real's Harmony technology will cease to work with current and future iPods.") Meanwhile the competitors would race to untangle the knots as fast as the platform manufacturer could tie them. If the consumers got irritated enough they could give up their sunk costs and switch to another product altogether. 103 All of this seems fine, even if it represents the kind of socially wasteful arms race that led critics of capitalism to prophesy its inevitable doom. Competition is good and competition will often require interoperability. But what do we mean by competition? Is it competition if I assassinate your employees or poison the food in your restaurant? If I trespass on your land in order to sell a competing product? If I break into your safe to steal your trade secrets, use my monopoly position in the market to impose resale price agreements, or violate your patent? It is the law that draws the line between competition and theft, between virtuous competitive imitation and illicit "piracy." 104 Sometimes we need to give innovators property rights that allow them to prevent second-comers from free riding on their efforts. We have to do so because it is necessary to encourage future innovation. On the other hand, sometimes we not only allow the second-comer to free ride, we positively encourage it, believing that this is an integral part of competition and that there are adequate incentives to encourage innovation without the state stepping in. Intellectual property policy, indeed a large part of the policy behind all property rights, is about drawing the line between the two situations. Too far in one direction and innovation suffers because potential investors realize good ideas will immediately be copied. Too far in the other direction and monopolies hurt both competition and future innovation. 105 Imagine you are the first person to invest in getting the public to eat burritos for breakfast, or to place a petrol station at a certain crossroads, or to clip papers together with a folded bit of wire. In each case we give you some property rights. The fast-food vendor may own a trademarked phrase or jingle that the public learns to associate with his product. Since the patent office issued a patent for the sealed and crimped "peanut butter and jelly" sandwich I described at the beginning of the book, even a patent is not out of the question if your disgusting concoction is sufficiently novel and nonobvious. But we should not allow you to have a patent over all burritos, or burritos for breakfast, still less over the idea of fast food. As for the paper clip maker, there might be a trademark over the particular paper clip, but the idea of folding wire to secure paper stays in the public domain. The owner of the petrol station gets physical ownership of the land, but cannot stop a second-comer from setting up shop across the road, even if the first-comer's labor, capital, and effort proved that the location is a good one. We positively encourage follow-on imitation in those cases. 106 Now how about the case in point? What does Apple get in the way of property rights? Think back to my description of the intellectual property system in Chapter 1. They can get patents over those aspects of the iPod--both hardware and software--that are sufficiently innovative. Patents are what we use to protect inventions. They also get a copyright over the various pieces of software involved. That protects them only against someone who copies their code, not someone who writes new software to do the same thing. Copyrights are what we use to protect original expression. They get rights under trademark law over the name and perhaps parts of the design of the product--maybe the distinctive look of the iPod--though that is a bit more complex. All of these rights, plus being the first to break into the market in a big way, the brilliance of the design, and the tight integration between the hardware and the service, produce a formidable competitive advantage. The iPod is a very good product. 107 Now if a competitor infringes any of Apple's rights, for example by making a literal copy of the code, using their trademark in a way the law does not allow, or infringing on one of their patents, then Apple can shut them down and extract hefty damages. Quite right, too. But should they be able to prevent someone from making an interoperable product, provided they do not violate any of these existing rights in the process? Laws like the DMCA make that question more complicated. 108 Nowadays, there is software in many, many more products than you would imagine. Your watch, your phone, your printer, your thermostat, your garage door opener, your refrigerator, your microwave, your television--the odds are that if you bought them in the last ten years, they have some software component. In the 1970s the courts and Congress had concluded that software could be copyrighted as original expression, like a song or a novel, as well as being patented when it was novel, nonobvious, and useful. Frequently, different aspects of the same program will be covered by copyright and by patent. But software is a machine made of words, the machine of the digital age. That fact already causes some problems for our competition policy. Will the exceptions and limitations designed to deal with a copyright over a novel work adequately when they are applied to Microsoft Windows? That issue was already unclear. With the DMCA, we have added another crucial problem. Where there is copyrighted software there can be digital fences around it. If the copyright owner can forbid people to cut these fences to gain access to the software, then it can effectively enlarge its monopoly, capture tied services, and prohibit generic competition. 109 It was just this line of thought that led some other companies to do more than merely make threatening noises about the DMCA. Lexmark makes printers. But it also makes lots of money off the replacement ink or toner cartridges for those printers. In some cases, in fact, that is where printer companies make the majority of their profits. As a result, they are not exactly keen on generic replacements. Chamberlain makes garage door opener systems. But they also sell replacements for the controllers--the little devices that you use to trigger the door. Lawyers from both of those firms looked at the DMCA and saw a chance to do something most companies would love to do; to make generic competition illegal. Lexmark designed their printer program so that it would not accept a toner cartridge unless it received the correct "checksum" or validation number. So far, this looks no different from the razor manufacturer trying to make it difficult to manufacture a compatible replacement blade. Generic competitors now had to embed chips in their printer cartridges which would produce the correct code, otherwise they would not work in Lexmark printers. 110 Static Control Components is a North Carolina company that manufactures chips whose main function is to send the correct code to the printer program. With this chip implanted in them, generic cartridges would work in Lexmark printers. Lexmark's response could have been to change their program, rendering the chip obsolete, just as Apple could change the iTunes software to lock out Real Music's Rhapsody. Doing so would have been quite within their rights. Indeed it is a standard part of the interoperability wars. Instead, Lexmark sued Static Controls, claiming, among other things, a violation of the DMCA.16 Like Apple in the press release I quoted earlier, Lexmark clearly saw this as a kind of digital breaking and entering. This was their printer, their printer program, their market for replacement cartridges. Static was just helping a bunch of cheats camouflage their generic cartridges as authentic Lexmark cartridges. Translated into the legal language of the DMCA the claim is a little different, but still recognizable. Static was "trafficking" in a device that allowed the "circumvention of a technical protection measure" used to prevent "access to a copyrighted work"--namely the computer program inside the printer. That is behavior that the DMCA forbids. 111 The garage door company, Chamberlain--who also claimed to be concerned about the security of their garage doors--made a similar argument. In order to get the garage door to open, the generic replacement opener had to provide the right code to the program in the actual motor system. That program is copyrighted. The code controls "access" to it. Suddenly, the manufacturers of generic printer cartridges and garage door openers start to look rather like Jon Johansen. 112 Surely the courts did not accept this argument? Bizarrely enough, some of them did--at least at first. But perhaps it was not so bizarre. The DMCA was indeed a radical new law. It did shift the boundaries of power between intellectual property owners and others. And intellectual property rights are always about restraining competition, defining what is legitimate and what is not--that is what they do. There was a respectable argument that these devices did in fact violate the DMCA. In fact, it was respectable enough to convince a federal judge. The district court judge in the Lexmark case concluded that Lexmark was likely to win on both the DMCA claim and on a more traditional copyright claim and issued an injunction against Static Control. In Skylink, the case involving garage door openers, by contrast, the district court held that the universal garage door opener did not violate the DMCA. Both cases were appealed and both appeals courts sided with the generic manufacturers, saying that the DMCA did not prohibit this kind of access--merely making a computer program work the way it was supposed to. 113 The U.S. Court of Appeals for the Federal Circuit (CAFC) heard the Skylink appeal. In a remarkably far-reaching decision, the court effectively took many of the positions that Mr. Corley's lawyers had argued for in the DeCSS case, but they did so not to protect speech, but to protect competition. In fact, they implied that taking Chamberlain's side in the case would silently overrule the antitrust statutes. They also interpreted the new right created by the DMCA so as to add an implicit limitation. In their construction, merely gaining access is not illegal; only gaining access for the purpose of violating the copyright holders' rights violates the statute. The Reimerdes court had been willing to accept that the new access right allows a copyright holder to prohibit "fair uses as well as foul." When Chamberlain made the same argument as to their garage door opener program, the CAFC was incredulous. 114 Such an entitlement [as the one Chamberlain claims] would go far beyond the idea that the DMCA allows copyright owner to prohibit "fair uses . . . as well as foul." Reimerdes, 111 F. Supp. 2d at 304. Chamberlain's proposed construction would allow copyright owners to prohibit exclusively fair uses even in the absence of any feared foul use. It would, therefore, allow any copyright owner, through a combination of contractual terms and technological measures, to repeal the fair use doctrine with respect to an individual copyrighted work--or even selected copies of that copyrighted work.17 115 There are multiple ironies here. The CAFC rarely meets an intellectual property right it does not like. It has presided over a twenty-year expansion of American patent law that many scholars find indefensible. But when (for dubious jurisdictional reasons) it sorties beyond its traditional ambit of patent law, it is stunned by the potential expansiveness of the DMCA. Then there is the comparison with the Reimerdes case. How interesting that the First Amendment and concerns about free expression have comparatively little bite when applied to the DMCA, but antitrust and concerns about competition require that we curtail it. After all, the heart of Mr. Johansen's argument was that he had to write the DeCSS program in order to play his own DVDs on his own computer--to get access to his own DVDs, just as the purchaser of a replacement garage door control is getting access to the program that operates his own garage door. Indeed, Mr. Johansen's criticism of CSS was that it allowed the movie companies, "through a combination of contractual terms and technological measures, to repeal the fair use doctrine with respect to an individual copyrighted work." Mr. Corley echoed those claims. 116 Of course, the situations are not identical. The key limitation in Skylink is that the court saw no threat of "foul use." The Reimerdes court could see little else. On the other hand, the rulings are not easily reconciled. The Skylink court cannot imagine that Congress would want to give the copyright holder a new "property" right to prevent access unconnected to any underlying copyright violation. 117 As we have seen, Congress chose to create new causes of action for circumvention and for trafficking in circumvention devices. Congress did not choose to create new property rights. . . . Were we to interpret Congress's words in a way that eliminated all balance and granted copyright owners carte blanche authority to preclude all use, Congressional intent would remain unrealized. 118 Yet, arguably, that is exactly what the Reimerdes decision does, precisely because it focuses on enabling access alone, not access for the purpose of violating one of the rights of the copyright holder. The Reimerdes court saw a violation of the law just in cutting the wire or making a wire cutter. The Skylink court focused on whether the person cutting the wire was going to trespass once the cutting was done. In effect, the two courts disagree on which of the options offered to the legislature in the Farmers' Tale was actually enacted by Congress. Which court is correct? The Skylink decision strikes me as sensible. It also makes the statute constitutionally much more defensible--something that the Skylink court does not consider. But in the process, it has to rewrite the DMCA substantially. One should not presume that it will be this interpretation that will triumph. 119 SUMMING UP: EXAGGERATIONS, HALF-TRUTHS, AND BIPOLAR DISORDERS IN TECHNOLOGY POLICY 120 Let me return to the question with which I began the chapter. For many critics of contemporary intellectual property law, the DMCA is the very embodiment of all that is wrong. (I still cherish a friend's account of British protesters outside the American Embassy in London singing "D-M-C-A" to the tune of the Village People's "YMCA" and holding up signs calling for the law's repeal--to the great confusion of the diplomatic personnel.) The critics conjure up a digital apocalypse--a world of perfect control achieved through legally backed digital fences, in which both speech and competition suffer, and where citizens lose privacy, the privilege of fair use, and the right to criticize popular culture rather than simply consume it. In their view, the legal disaster is only exacerbated by bumbling judges who do not understand the technology and who are easily fooled by the doom-laden rhetoric of the content companies. The DMCA's supporters, on the other hand, think criticisms of the DMCA are overblown, that the dark tales of digital control are either paranoid delusions or tendentious exaggerations, and that far from being excessive, the DMCA's provisions are not sufficient to control an epidemic of illicit copying. More draconian intervention is needed. As for fair use, as I pointed out before, many of the DMCA's supporters do not think fair use is that important economically or culturally speaking. At best it is a "loophole" that copyright owners should have the right to close; certainly not an affirmative right of the public or a reserved limitation on the original property grant from the state. 121 Who is right? Obviously, I disagree profoundly with the DMCA's supporters. I wrote this book partly to explain--using Jefferson and Macaulay and the Sony case--what was wrong with their logic. It would be both convenient and predictable for me to claim that the DMCA is the intellectual property incarnation of the Antichrist. But it would not be true. In fact, I would not even put the DMCA in the top three of bad intellectual property initiatives worldwide. And many of the fears conjured up about it are indeed overblown. 122 Of course, the critics have a point. The DMCA is a very badly drafted law. As I have tried to show here, its key provisions were probably unnecessary and are, in my view, unconstitutional. If coupled with a number of other legal "innovations" favored by the content industry, the DMCA could play a very destructive role. In general, in fact, the Farmers' Tale is fairly accurate in describing both the origins of and the threats posed by the DMCA. Yet the single largest of those threats--the idea that the DMCA could be used to fence off large portions of the public domain and to make the fair use provisions of the Copyright Act essentially irrelevant--is still largely a threat rather than a reality. In some cases, fair use rights are curtailed. But for most citizens and for the majority of media, the DMCA has had relatively little effect. Digital rights management (DRM) certainly exists; indeed it is all around us. You can see that every time you try to play a DVD bought in another part of the world, open an Adobe eBook, or copy a song you have downloaded from iTunes. But so far, the world of legally backed digital rights management has not brought about the worst of the dystopian consequences that some people, including me, feared might result. 123 In many cases, citizens simply reject digital rights management. They will not buy products that use it. Attempts to introduce it into music CDs, for example, have been a resounding failure. In other cases, DRM has not been used in ways that the critics feared. There are genuine scandals, of course--cryptography research has been chilled, the DMCA has been turned to anticompetitive ends, and so on. It is also troubling to see federal judges issuing injunctions not only against banned material but also against those who link to the banned material. Somehow the blithe reassurance that this is consistent with the First Amendment fails to comfort one. But many of the evils prophesied for the DMCA remain as just that: prophecies. 124 There are also entries on the positive side of the ledger. The "safe-harbors" that the DMCA gave Internet service providers and search services have been a vital and positive force in the development of the Internet. It may even be true that in some cases, such as iTunes, the DMCA did what its backers claimed it would--encourage new provision of digital content by reassuring the record companies that they could put their music online surrounded by legally backed digital rights management. (Notably, however, the trend is now going the other way. Companies are coming to realize that many consumers prefer, and will pay more for, unprotected MP3 files.) 125 Of course, depending on your view of the music industry, that might seem like a mixed blessing. One might also wonder if the same consumer benefits might have been produced with a much less restrictive law. But with the exception of a few important areas--such as cryptography research, where its effects are reported to be severe--I would have to say that the criticisms focus too much on the DMCA, to the exclusion of the rest of the intellectual property landscape. Yes, the DMCA offers enormous potential for abuse, particularly in conjunction with some other developments in intellectual property that I will discuss later, but much of the abuse has not yet happened. Yet even if it never did happen, the DMCA has important lessons to teach us. 126 In this section I have tried to show how legal rules--particularly intellectual property rules--define the boundaries of legitimate competition. We used to assume that this was principally the function of patent and trademark law, less so of copyright. Of course, copyright would affect competition in publishing and in the TV and movie industries, but it hardly seemed central to competition policy in general. But once courts and legislatures accepted that software is copyrightable, that assessment changed. The levers and cogs of the machines of the modern economy are forged out of ones and zeros instead of steel and brass. In that situation, copyright is central to the competition policy of a high-tech economy. 127 As the Apple case shows, our moral intuitions about competition are going to be cloudier in the world of digital content and cyberspace. The same is true of the law. Even in the material world it can be hard to draw the line between the legitimate and ruthless pursuit of commercial advantage and various forms of unfair competition, antitrust violations, and so on. But in the immaterial world, the boundaries are even harder to draw. Is this the digital equivalent of trespass or legitimate passage on a public road that runs through your property? As I pointed out earlier, the constant analogies to physical property are likely to conceal as much as they reveal. Is this virtuous competitive imitation or illicit copying? We have strong, and by no means coherent, moral and legal intuitions about the answers to such questions. And our legal structure often gives us the raw material to make a very good case for both sides of the argument. 128 Into this already troubled situation, with a set of rules designed for original expression in novels and poems being applied to machines made of computer code, we add the DMCA and its new rights of uncertain extent. Copyright had a well- developed set of exceptions to deal with anticompetitive behavior. Where the existing exceptions did not function, courts tended to turn to fair use as the universal method for patching the system up--the duct tape of the copyright system. Without an evolving idea of fair use, copyright would overshoot its bounds as it was applied to new technologies and new economic conditions. Indeed that was the point of the Sony Axiom. The DMCA threw this system into disarray, into a war of competing metaphors. 129 The Skylink court sees monopolists being handed carte blanche to abolish the restraints on their monopolies. Competition policy demands that we construe the DMCA narrowly. The Reimerdes court sees a virus masquerading as speech, a digital pandemic that must be stopped at all costs by a draconian program of electronic public health. Each proceeds to construe the statute around the reality they have created. It is by no means certain which metaphor will win the day, still less which resolution will triumph in other countries that have passed versions of the DMCA. International attitudes toward speech, competition, and the necessary exceptions in a copyright system vary widely. Yet backed by the story of the Internet Threat, the content companies are already saying that we need to go further both nationally and internationally--introducing more technology mandates, requiring computers to have hardware that will only play approved copyrighted versions, allowing content companies to hack into private computers in search of material they think is theirs, and so on. Remember the suggestion from the beginning of the chapter, that all cars be assumed to be getaway vehicles for the felonious filchers of vegetables, and thus that they should be fitted with radio beacons, have the size of their cargo space reduced, and so on? The Farmers' Tale continues to evolve. Chapter 6: I Got a Mashup 1 So far, I have talked about the root ideas of intellectual property. I have talked about its history, about the way it influences and is influenced by technology. I have talked about its effects on free speech and on competition. Until now, however, I have not described the way that it actually affects culture. This chapter aims to rectify the omission, looking at the way copyright law handles one specific form of cultural creation--music. It turns out that some of the problems identified in Chapters 4 and 5 are not simply the result of a mismatch between old law and new technology, or the difficulties posed in applying copyright to software, to machines made of words. The same issues appear at the heart of a much older cultural tradition. 2 This is the story of a song and of that song's history. But it is also a story about property and race and art, about the way copyright law has shaped, encouraged, and prohibited music over the last hundred years, about the lines it draws, the boundaries it sets, and the art it forbids. 3 Music is hard for copyright law to handle. If one had to represent the image of creativity around which copyright law and patent law, respectively, are built, patent law's model of creativity would be a pyramid and copyright law's a fountain, or even an explosion. 4 In patent law, the assumption is that technological development converges. Two engineers from two different countries tend to produce similar ways of catching mice or harnessing the power of steam. There are a limited number of good ways of accomplishing a technical task. In addition, technological progress is assumed to be incremental. Each development builds on the ones behind it. Based on this image, patent law makes a series of decisions about what gets covered by property rights, for how long, how to handle "subsequent improvements," and so on. Patent rights last for a short time, not only to lower costs to consumers, but because we want to build on the technology inventors have created as soon as possible, without getting their permission. Even during the patent term, subsequent "improvers" get their own rights and can bargain with the original patent holder to share the profits. 5 Copyright's assumptions are different. Copyright began with texts, with creative expression. Here the assumption is (generally) that there are infinite possibilities, that two writers will not converge on the same words, and that the next generation of storytellers does not need to take the actual "stuff" that copyright covers in order to make the next play or novel. (It may be because of this image that so few policy makers seem to worry that copyright now lasts for a very long time.) Subsequent "improvements" of copyrighted material are called derivative works, and without the rights holder's permission, they are illegal. Again, the assumption seems to be that you can just write your own book. Do not claim you need to build on mine. 6 Of course, each of these pictures is a caricature. The reality is more complex. Copyright can make this assumption more easily because it does not cover ideas or facts--just their expression. "Boy meets girl, falls in love, girl dies" is not supposed to be owned. The novel Love Story is. It is assumed that I do not need Erich Segal's copyrighted expression to write my own love story. Even if literary creativity does converge around standard genres, plots, and archetypes, it is assumed that those are in the public domain, leaving future creators free to build their own work without using material that is subject to copyright. We could debate the truth of that matter for literature: the expansion of copyright's ambit to cover plotlines and characters makes it more questionable. Certainly many recognized forms of creativity, such as the pastiche, the collage, the literary biography, and the parody need extensive access to prior copyrighted work. But regardless of how well we think the image of individual creativity fits literature, it fits very poorly in music where so much creativity is recognizably more collective and additive, and where much of the raw material used by subsequent creators is potentially covered by copyright. 7 So how does the accretive process of musical creativity fare in the modern law and culture of copyright? How would the great musical traditions of the twentieth century--jazz, soul, blues, rock--have developed under today's copyright regime? Would they have developed at all? How does the law apply to the new musicians, remixers, and samplers who offer their work on the Internet? Do the lines it draws fit with our ethics, our traditions of free speech and commentary, our aesthetic judgments? It would take a shelf of books to answer such questions definitively. In this chapter, all I can do is suggest some possibilities--using the history of a single song as my case study. 8 ----------------------------------- 9 On August 29th, 2005, a hurricane made landfall in Louisiana. The forecasters called it "Hurricane Katrina," quickly shortened to "Katrina" as its story took over the news. The New Orleans levees failed. Soon the United States and then most of the world was watching pictures of a flooded New Orleans, seeing pleading citizens--mainly African-American--and a Keystone Cops response by the Federal Emergency Management Agency. The stories from New Orleans became more and more frightening. There were tales not only of natural disaster--drownings, elderly patients trapped in hospitals--but of a collapse of civilization: looting, murder and rape, stores being broken into with impunity, rescue helicopters fired upon, women and children sexually assaulted in the convention center where many of the refugees huddled. Later, it would turn out that many, perhaps most, of these reports were untrue, but one would not have guessed that from the news coverage. 10 The television played certain images over and over again. People--again, mainly African-Americans--were portrayed breaking into stores, pleading from rooftops, or later, when help still had not arrived, angrily gesturing and shouting obscenities at the camera. 11 As the disaster unfolded in slow motion, celebrities began appearing in televised appeals to raise money for those who had been affected by the storm. Kanye West, the hip hop musician, was one of them. Appearing on NBC on September 2, with the comedian Mike Myers, West started out seeming quietly upset. Finally, he exploded. 12 I hate the way they portray us in the media. You see a black family, it says, "They're looting." You see a white family, it says, "They're looking for food." And, you know, it's been five days [waiting for federal help] because most of the people are black. . . . So anybody out there that wants to do anything that we can help--with the way America is set up to help the poor, the black people, the less well-off, as slow as possible. I mean, the Red Cross is doing everything they can. We already realize a lot of people that could help are at war right now, fighting another way--and they've given them permission to go down and shoot us! 13 Myers, who, according to the Washington Post, "looked like a guy who stopped on the tarmac to tie his shoe and got hit in the back with the 8:30 to LaGuardia," filled in with some comments about the possible effect of the storm on the willingness of Louisiana citizens to live in the area in the future. Then he turned back to West, who uttered the line that came to epitomize Katrina for many people around the world, and to infuriate a large number of others. "George Bush doesn't care about black people!" Myers, the Post wrote, "now look[ed] like the 8:30 to LaGuardia turned around and caught him square between the eyes."1 In truth, he did appear even more stunned than before, something I would not have thought possible. 14 In Houston, Micah Nickerson and Damien Randle were volunteering to help New Orleans evacuees at the Astrodome and Houston Convention Center during the weekend of September 3. They, too, were incensed both by the slowness of the federal response to the disaster and by the portrayal of the evacuees in the media. But Mr. Nickerson and Mr. Randle were not just volunteers, they were also a hip-hop duo called "The Legendary K.O." What better way to express their outrage than through their art? An article in the New York Times described their response. 15 "When they got to Houston, people were just seeing for the first time how they were portrayed in the media," said Damien Randle, 31, a financial adviser and one half of the Legendary K.O. "It was so upsetting for them to be up on a roof for two days, with their kids in soiled diapers, and then see themselves portrayed as looters." In response, Mr. Randle and his partner, Micah Nickerson, wrote a rap based on the stories of the people they were helping. On Sept. 6, Mr. Nickerson sent Mr. Randle an instant message containing a music file and one verse, recorded on his home computer. Mr. Randle recorded an additional verse and sent it back, and 15 minutes later it was up on their Web site: www.k-otix.com.2 16 The song was called "George Bush Doesn't Care About Black People" (also referred to as "George Bush Doesn't Like Black People"). Appropriately, given that Mr. West was the one to come up with the phrase, the song was built around Mr. West's "Gold Digger." Much of the melody was sampled directly from the recording of that song. Yet the words were very different. Where "Gold Digger" is about a predatory, sensual, and materialist woman who "take[s] my money when I'm in need" and is a "triflin' friend indeed," The Legendary K.O.'s song is a lyrical and profane condemnation of the response to Katrina by both the government and the media. Here is a sample: 17 Five days in this motherf__ attic Can't use the cellphone I keep getting static Dying 'cause they lying instead of telling us the truth Other day the helicopters got my neighbors off the roof Screwed 'cause they say they coming back for us too That was three days ago, I don't see no rescue See a man's gotta do what a man's gotta do Since God made the path that I'm trying to walk through Swam to the store, tryin' to look for food Corner store's kinda flooded so I broke my way through I got what I could but before I got through News say the police shot a black man trying to loot (Who!?) Don't like black people George Bush don't like black people George Bush don't like black people 18 This chapter is the story of that song. "George Bush Doesn't Care About Black People" is the end (for the moment) of a line of musical borrowing. That borrowing extends far beyond Kanye West's song "Gold Digger." "Gold Digger" is memorable largely because it in turn borrows from an even older song, a very famous one written half a century before and hailed by many as the birth of soul music. It is in the origins of that song that we will start the trail. 19 I GOT A WOMAN 20 In 1955, Ray Charles Robinson, better known as Ray Charles, released a song called "I Got a Woman." It was a defining moment in Charles's musical development. Early in his career he had unashamedly modeled himself on Nat King Cole. 21 I knew back then that Nat Cole was bigger than ever. Whites could relate to him because he dealt with material they understood, and he did so with great feeling. Funny thing, but during all these years I was imitating Nat Cole, I never thought twice about it, never felt bad about copying the cat's licks. To me it was practically a science. I worked at it, I enjoyed it, I was proud of it, and I loved doing it. He was a guy everyone admired, and it just made sense to me, musical and commercial sense, to study his technique. It was something like when a young lawyer--just out of school--respects an older lawyer. He tries to get inside his mind, he studies to see how he writes up all his cases, and he's going to sound a whole lot like the older man--at least till he figures out how to get his own shit together. Today I hear some singers who I think sound like me. Joe Cocker, for instance. Man, I know that cat must sleep with my records. But I don't mind. I'm flattered; I understand. After all, I did the same thing.3 22 In the early 50s Charles decided that he needed to move away from Cole's style and find his own sound, "sink, swim or die." But as with any musician, "his own sound" was the product of a number of musical traditions--blues and gospel particularly. It is out of those traditions that "I Got a Woman" emerged; indeed it is that combination that causes it to be identified as one of the birthplaces of soul music. 23 According to the overwhelming majority of sources, "I Got a Woman" stems from a fairly overt piece of musical borrowing--Charles reworded the hymn "Jesus Is All the World to Me"--sometimes referred to as "My Jesus Is All the World to Me." 24 Musically, soul denotes styles performed by and for black audiences according to past musical practices reinterpreted and redefined. During its development, three performers played significant roles in shaping its sound, messages, and performance practice: Ray Charles, James Brown, and Aretha Franklin. If one can pinpoint a moment when gospel and blues began to merge into a secular version of gospel song, it was in 1954 when Ray Charles recorded "My Jesus Is All the World to Me," changing its text to "I Got A Woman."4 25 That story is repeated in the biography on Charles's Web site. "Charles reworded the gospel tune 'Jesus Is All the World to Me' adding deep church inflections to the secular rhythms of the nightclubs, and the world was never the same."5 Michael Lydon, Charles's most impressive biographer, simply reports that "Jesus Is All the World to Me" is described as the song's origin in another published source,6 and this origin is cited repeatedly elsewhere in books, newspaper articles, and online,7 though the most detailed accounts also mention Renald Richard, Charles's trumpeter, who is credited with co-writing the song.8 26 To secular ears, "Jesus Is All the World to Me" is a plodding piece of music with a mechanical, up-and-down melodic structure. It conjures up a bored (and white) church audience, trudging through the verses, a semitone flat, while thinking about Sunday lunch rather than salvation. It is about as far removed as one could be from the syncopated beat and amorous subject matter of "I Got a Woman." The hymn was the product of Will Lamartine Thompson--a severe-looking fellow with a faint resemblance to an elderly Doc Holliday--who died in 1909 and is buried in the same place he was born, East Liverpool, Ohio. But the words have an earnestness to them that gives life to the otherwise uninspired verse. 27 Jesus is all the world to me, my life, my joy, my all; He is my strength from day to day, without Him I would fall. When I am sad, to Him I go, no other one can cheer me so; When I am sad, He makes me glad, He's my Friend. 28 Reading those words, one can understand the sincerity that made Mr. Thompson spurn commercial publishers for his devotional music, instead founding his own publishing house (also in East Liverpool) to make sure that his hymns reached the people. I can quote as much of the song as I want without worrying about legal consequences because the copyright on Mr. Thompson's lyrics has expired. So has the copyright over the music. The song was published in 1904. Copyright had only been extended to musical compositions in 1881. Like all copyrights back then, copyright over music lasted for only twenty-eight years, with a possible extension for another fourteen. If Ray Charles did indeed reword it fifty years later, he was doing nothing illegal. It had been in the public domain for at least eight years, and probably for twenty. Now maybe Charles's genius was to hear in this hymn, or in a syncopated gospel version of this hymn, the possibility of a fusion of traditions which would itself become a new tradition--soul. Or perhaps his genius was in knowing a good idea--Richard's--when he heard it, and turning that idea into the beginnings of its own musical genre. 29 Soul is a fusion of gospel on the one hand and rhythm and blues on the other. From gospel, soul takes the call-and-response pattern of preacher and congregation and the wailing vocals of someone "testifying" to their faith. From rhythm and blues it takes the choice of instruments, some of the upbeat tempo, and the distinctly worldly and secular attitude to the (inevitable) troubles of life. Musicologists delight in parsing the patterns of influence further; R&B itself had roots in "jump music" and the vocal style of the "blues shouters" who performed with the big bands. It also has links to jazz. Gospel reaches back to spirituals and so on. 30 As with all music, those musical traditions can be traced back or forward in time, the net of influence and borrowing widening as one goes in either direction. In each, one can point to distinctive musical motifs--the chords of the twelve-bar blues, or the flattened fifth in bebop. But musical traditions are also defined by performance styles and characteristic sounds: the warm guitar that came out of the valve amplifiers of early funk, the thrashing (and poorly miked) drums of '80s punk, or the tinny piano of honky-tonk. Finally, styles are often built around "standards"--classic songs of the genre to which an almost obligatory reference is made. My colleague, the talented composer Anthony Kelley, uses Henry Louis Gates's term "signifyin' " to describe the process of showing you are embedded in your musical tradition by referring back to its classics in your playing. In jazz, for example, one demonstrates one's rootedness in the tradition by quoting a standard, but also one's virtuosity in being able to trim it into a particular eight-bar solo, beginning and ending on the right note for the current moment in the chord progression. "I Got Rhythm" and "Round Midnight" are such songs for jazz. (The chord changes of "I Got Rhythm" are so standard, they are referred to as "the rhythm changes"--a standard basis for improvisation.) And to stretch the connections further, as Kelley points out, the haunting introduction to "Round Midnight" is itself remarkably similar to Sibelius's Fifth Symphony. 31 Through all these layers of musical borrowing and reference, at least in the twentieth century in the United States, runs the seam of race. When white musicians "borrowed" from soul to make "blue-eyed soul," when Elvis took songs and styles from rhythm and blues and turned them into rockabilly, a process of racial cleansing went on. Styles were adapted but were cleansed of those elements thought inappropriate for a larger white audience. Generally, this involved cutting some of the rawer sensuality, removing racially specific verbal and musical references, and, for much of the century, cutting the African- American artists out of the profits in the process. 32 There is another irony here. Styles formed by patterns of gleeful borrowing, formed as part of a musical commons--the blues of the Mississippi Delta, for example--were eventually commercialized and "frozen" into a particular form by white artists. Sometimes those styles were covered with intellectual property rights which denied the ability of the original community to "borrow back." In the last thirty or forty years of the century, African-American artists got into the picture too, understandably embracing with considerable zeal the commercial opportunities and property rights that had previously been denied to them. But aside from the issue of racial injustice, one has to consider the question of sustainability. 33 In other work, I have tried to show how a vision of intellectual property rights built around a notion of the romantic author can sometimes operate as a one-way valve vis-à-vis traditional and collective creative work.9 There is a danger that copyright will treat collectively created musical traditions as unowned raw material, but will then prevent the commercialized versions of those traditions--now associated with an individual artist--from continuing to act as the basis for the next cycle of musical adaptation and development. One wonders whether jazz, blues, R&B, gospel, and soul would even have been possible as musical styles if, from their inception, they had been covered by the strong property rights we apply today. That is a question I want to return to at the end of this chapter. 34 Musical styles change over time and so do their techniques of appropriation. Sometimes musical generations find their successors are engaging in different types of borrowing than they themselves engaged in. They do not always find it congenial. It is striking how often musicians condemn a younger generation's practice of musical appropriation as theft, while viewing their own musical development and indebtedness as benign and organic. James Brown attacked the use of his guitar licks or the drum patterns from his songs by hip-hop samplers, for example, but celebrated the process of borrowing from gospel standards and from rhythm and blues that created the "Hardest Working Man in Show Business"--both the song and the musical persona. To be sure, there are differences between the two practices. Samplers take a three-second segment off the actual recording of "Funky Drummer," manipulate it, and turn it into a repeating rhythm loop for a hip-hop song. This is a different kind of borrowing than the adaptation of a chord pattern from a gospel standard to make an R&B hit. But which way does the difference cut as a matter of ethics, aesthetics, or law? 35 Charles himself came in for considerable criticism for his fusion of gospel intonations and melodic structures with the nightclub sound of rhythm and blues, but not because it was viewed as piracy. It was viewed as sacrilegious. 36 Charles totally removed himself from the polite music he had made in the past. There was an unrestrained exuberance to the new Ray Charles, a fierce earthiness that, while it would not have been unfamiliar to any follower of gospel music, was almost revolutionary in the world of pop. Big Bill Broonzy was outraged: "He's crying, sanctified. He's mixing the blues with the spirituals. He should be singing in a church."10 37 Charles disagreed. "You can't run away from yourself. . . . What you are inside is what you are inside. I was raised in the church and was around blues and would hear all these musicians on the jukeboxes and then I would go to revival meetings on Sunday morning. So I would get both sides of music. A lot of people at the time thought it was sacrilegious but all I was doing was singing the way I felt."11 Why the charge of sacrilege? Because beyond the breach of stylistic barriers, the relationships Charles described did not seem to belong in church. 38 "I Got a Woman" tells of a woman, "way over town," who is good to the singer--very good, in fact. She gives him money when he is in need, is a "kind of friend indeed," even saves her "early morning loving" just for him (and it is tender loving at that). In the third verse we learn she does not grumble, fuss, or run in the streets, "knows a woman's place is right there now in the home," and in general is a paragon of femininity. Gender roles aside, it is a fabulous song, from the elongated "We-e-ell . . ." in Charles's distinctive tones, to the momentary hesitation that heightens the tension, all the way through the driving beat of the main verses and the sense that a gospel choir would have fit right in on the choruses, testifying ecstatically to the virtues of Charles's lady friend. Charles liked women--a lot of women, according to his biographers--and a lot of women liked him right back. That feeling comes through very clearly from this song. 39 I would like to quote the song lyrics for you, just as I did the words of the hymn, but that requires a little more thought. Charles's song was released in 1955. By that time, the copyright term for a musical composition was twenty-eight years, renewable for another twenty-eight if the author wished. (Later, the twenty-eight-year second term would be increased to forty-seven years. Still later, the copyright term would be extended to life plus seventy years, or ninety-five years for a "work for hire." Sound recordings themselves would not be protected by federal law until the early 1970s.) Anyone who wrote or distributed a song under the "28 ??28" system was, in effect, saying "this is a long enough protection for me," enough incentive to create. Thus, we could have assumed that "I Got a Woman" would enter the public domain in either 1983 or, if renewed, 2011. Unfortunately for us, and for a latter-day Ray Charles, the copyright term has been extended several times since then, and each time it was also extended retrospectively. Artists, musicians, novelists, and filmmakers who had created their works on the understanding that they had twenty-eight or fifty-six or seventy-five years of protection now have considerably more. This was the point raised in Chapter 1. Most of the culture of the twentieth century, produced under a perfectly well-functioning system with much shorter copyright terms, is still locked up and will be for many years to come. 40 In the case of "I Got a Woman," it is now about fifty years since the song's release--the same length of time as between Thompson's hymn and Charles's alleged "rewording." If the words and music were properly copyrighted at the time of its publication, and renewed when appropriate, the copyright still has forty-five years to run. No one will be able to "reword" "I Got a Woman" and use it to found a new genre, or take substantial portions of its melody, until the year 2050. The freedoms Ray Charles says he used to create his song are denied to his successors until nearly a century after the song's release. (As we will see in a moment, this put certain constraints on Kanye West.) 41 Would it truly be a violation of copyright for me to quote the middle stanza in a nonfiction book on copyright policy? Not at all. It is a classic "fair use." In a moment I will do so. But it is something that the publisher may well fuss over, because copyright holders are extremely aggressive in asking for payments for the slightest little segment. Copyright holders in music and song lyrics are among the most aggressive of the lot. Year after year academics, critics, and historians pay fairly substantial fees (by our standards) to license tiny fragments of songs even though their incorporation is almost certainly fair use. Many of them do not know the law. Others do, but want to avoid the hassle, the threats, the nasty letters. It is simpler just to pay. 42 Unfortunately, these individual actions have a collective impact. One of the factors used to consider whether something is a fair use is whether or not there is a market for this particular use of a work. If there is, it is less likely to be a fair use to quote or incorporate such a fragment. As several courts have pointed out, there is a powerful element of circularity here. You claim you have a right to stop me from doing x--quoting two lines of your three-verse song in an academic book, say. I say you have no such right and it is a fair use. You say it is not a fair use because it interferes with your market--the market for selling licenses for two- sentence fragments. But when do you have such a market? When you have a right to stop me quoting the two-sentence fragment unless I pay you. Do you have such a right? But that is exactly what we are trying to decide! Is it a fair use or not? The existence of the market depends on it not being a fair use for me to quote it without permission. To say "I would have a market if I could stop you doing it, so it cannot be a fair use, so I can stop you" is perfectly circular. 43 How do we get out of the circle? Often the court will look to customs and patterns in the world outside. Do people accept this as a market? Do they traditionally pay such fees? Thus, if a lot of people choose to pay for quotes that actually should have been fair use, the "market" for short quotes will begin to emerge. That will, in turn, affect the boundaries of fair use for the worse. Slowly, fair use will constrict, will atrophy. The hypertrophied permissions culture starts as myth, but it can become reality. 44 In any event, Ray Charles had no need of fair use to make "I Got a Woman" because the hymn his biography claims it is based on was in the public domain. But is that the real source? I can hear little resemblance. As I researched the origins of "I Got a Woman," I found claims that there was a different source, a mysterious song by the Bailey Gospel Singers, or the Harold Bailey Gospel Singers, called "I've Got a Savior."12 The Columbia Records gospel catalogue even provided a catalogue number.13 There was such a song, or so it seemed. But there the research stalled. The exemplary librarians at Duke University Music Library could find no trace. Catalogues of published records showed nothing. Inquiries to various music librarian listservs also produced no answer. There was a man called Harold Bailey, who sang with a group of gospel singers, but though several Internet postings suggested he was connected to the song, his biography revealed he would have been only thirteen at the time. The Library of Congress did not have it. Eventually, Jordi Weinstock--a great research assistant who demonstrated willingness to pester anyone in the world who might conceivably have access to the recording--hit gold. The Rodgers and Hammerstein Archives of Recorded Sound at the New York Public Library for the Performing Arts had a copy--a 78 rpm vinyl record by the Bailey Gospel Singers with "Jesus Is the Searchlight" on the B-side. Our library was able to obtain a copy on interlibrary loan from the helpful curator, Don McCormick. 45 It sounds like the same song. Not the same words, of course: the introduction is different and the Bailey Gospel Singers lack the boom-chicky-boom backing of Charles's version, but the central melody is almost exactly the same. When the Bailey Gospel Singers sing "Keeps me up / Keeps me strong / Teach me right / When I doing wrong / Well, I've got a savior / Oh what a savior / yes I have," the melody, and even the intonation, parallel Charles singing the equivalent lines: "She gimme money / when I'm in need / Yeah she's a kind of / friend indeed / I've got a woman / way over town / who's good to me." 46 True, some of the lyrical and rhythmic patterns of "I've Got a Savior" are older still. They come from a spiritual called "Ain't That Good News," dating from 1940, which rehearses all the things the singer will have in the Kingdom of Heaven--a harp, a robe, slippers (!), and, finally, a savior. The author of "I've Got a Savior" was, like all the artists discussed here, taking a great deal from a prior musical tradition. Nevertheless, Charles's borrowing is particularly overt and direct. The term "rewording" is appropriate. So far as I can see, whether or not he also relied on a fifty-year-old hymn, Ray Charles appears to have taken both the melody and lyrical pattern of his most famous hit from a song that was made a mere three or four years earlier. 47 Like many 78 rpm records, this one was sold without liner notes. The center of the record provides the only details. It gives the name of the track and the band and a single word under the song title, "Ward"--presumably the composer. "Ward" might be Clara Ward of the Ward Singers, a talented gospel singer and songwriter who became Aretha Franklin's mentor and who had her own music publishing company. 48 There is a particular reason to think that she might have written the song: Ray Charles clearly liked to adapt her music to secular ends. We know that he "reworked" Ward's gospel classic "This Little Light of Mine" into "This Little Girl of Mine." Ward reportedly was irritated by the practice. So far as we know, the copying of the music did not annoy her because she viewed it as theft, but because she viewed it as an offense against gospel music. 49 Charles is now starting to get criticism from some gospel music performers for secularizing gospel music and presenting it in usual R&B venues. Most adamant in her misgivings is Clara Ward who complains about "This Little Girl Of Mine" being a reworking of "This Little Light Of Mine" (which it is), as a slap against the gospel field.14 50 This stage of Charles's career is described, rightly, as the moment when his originality bursts forth, where he stops imitating the smooth sounds of Nat King Cole and instead produces the earthy and sensual style that becomes his trademark--his own sound. That is true enough; there had been nothing quite like this before. Yet it was hardly original creation out of nothing. Both Charles himself and the musicological literature point out that "his own sound," "his style," is in reality a fusion of two prior genres--rhythm and blues and gospel. But looking at the actual songs that created soul as a genre shows us that the fusion goes far beyond merely a stylistic one. Charles makes some of his most famous songs by taking existing gospel classics and reworking or simply rewording them. "I've Got a Savior" becomes "I Got a Woman." "This Little Light of Mine" becomes "This Little Girl of Mine." 51 The connection is striking: two very recent gospel songs, probably by the same author, from which Charles copies the melody, structure, pattern of verses, even most of the title--in each case substituting a beloved sensual woman for the beloved deity. Many others have noticed just how closely Charles based his songs on gospel tunes, although the prevalence of the story that "I Got a Woman" is derived from an early-twentieth-century hymn caused most to see only the second transposition, not the first.15 Borrowing from a fifty-year-old hymn and changing it substantially in the process seems a little different from the repeated process of "search and replace" musical collage that Charles performed on the contemporary works of Clara Ward. 52 If I am right, Charles's "merger" of gospel and blues relied on a very direct process of transposition. The transposition was not just of themes: passion for woman substituted for passion for God. That is a familiar aspect of soul.16 It is what allows it to draw so easily from gospel's fieriness and yet coat the religion with a distinctly more worldly passion. Sex, sin, and syncopation--what more could one ask? But Charles's genius was to take particular songs that had already proved themselves in the church and on the radio, and to grab large chunks of the melody and structure. He was not just copying themes, or merging genres, he was copying the melodies and words from recent songs. 53 Was this mere musical plagiarism, then? Should we think less of Ray Charles's genius because we find just how closely two of the canonical songs in the creation of soul were based on the work of his contemporaries? Hardly. "I Got a Woman" and "This Little Girl of Mine" are simply brilliant. Charles does in fact span the worlds of the nightclub at 3 a.m. on Sunday morning and the church later that day, of ecstatic testimony and good old- fashioned sexual infatuation. But the way he does so is a lot more like welding, or bricolage, than it is like designing out of nothing or creating anew while distantly tugged by mysterious musical forces called "themes" or "genres." Charles takes bits that have been proven to work and combines them to make something new. When I tell engineers or software engineers this story, they nod. Of course that is how creation works. One does not reinvent the wheel, or the method of debugging, so why should one reinvent the hook, the riff, or the melody? And yet Charles's creation does not have the degraded artistic quality that is associated with "mere" cut-and-paste or collage techniques. The combination is greater than the sum of its parts. If Charles's songs do not fit our model of innovative artistic creativity, perhaps we need to revise the model--at least for music--rather than devaluing his work. 54 When I began this study, it seemed to me that the greatest challenge to copyright law in dealing with music was preventing rights from "creeping," expanding from coverage of a single song or melody to cover essential elements of genre, style, and theme. In effect, we needed to apply the Jefferson Warning to music, to defeat the constant tendency to confuse intellectual property with real property, and to reject the attempts to make the right holder's control total. My assumption was that all we needed to do was to keep open the "common space" of genre and style, and let new artists create their new compositions out of the material in that commons and gain protection over them. In many ways, Charles's work lies at the very core of the stuff copyright wishes to promote. It is not merely innovative and expressive itself, it also helped form a whole new genre in which other artists could express themselves. But to create this work, Charles needed to make use of a lot more than just genres and styles created by others. He needed their actual songs. If the reactions of Clara Ward and Big Bill Broonzy are anything to go by, they would not have given him permission. To them, soul was a stylistic violation, a mingling of the sacred with the profane. If given a copyright veto over his work, and a culture that accepts its use, Ward might well have exercised it. Like the disapproving heirs that Macaulay talked about, she could have denied us a vital part of the cultural record. Control has a price. 55 Did Ray Charles commit copyright infringement? Perhaps. We would have to find if the songs are substantially similar, once we had excluded standard forms, public domain elements, and so on. I would say that they are substantially similar, but was the material used copyright-protected expression? 56 The Copyright Office database shows no entry for "I've Got a Savior." This is not conclusive, but it seems to indicate that no copyright was ever registered in the work. In fact, it is quite possible that the song was first written without a copyright notice. Nowadays that omission would be irrelevant. Works are copyrighted as soon as they are fixed in material form, regardless of whether any copyright notice is attached. In 1951, however, a notice was required when the work was published, and if one was not put on the work, it passed immediately into the public domain. However, later legislation decreed that the relevant publication was not of the record, but of the notation. If the record were pressed and sold without a copyright notice, the error could be corrected. If a lead sheet or a sheet music version of "I've Got a Savior" had been published without notice or registration, it would enter the public domain. It is possible that this happened. Intellectual property rights simply played a lesser role in the 1950s music business than they do today, both for better and for worse. Large areas of creativity operated as copyright-free zones. Even where copyrights were properly registered, permission fees were not demanded for tiny samples. While bootlegged recordings or direct note-for-note copies might well draw legal action, borrowing and transformation were apparently viewed as a normal part of the creative process. In some cases, artists simply did not use copyright. They made money from performances. Their records might receive some kind of protection from state law. These protections sufficed. 57 But the lack of protection also had a less attractive and more racially skewed side. African-American artists were less likely to have the resources and knowledge necessary to navigate the system of copyright. For both black and white artists, whatever rights there were moved quickly away from the actual creators toward the agents, record companies, and distributors. They still do. But African-American musicians got an even worse deal than their white counterparts. True, the copyright system was only an infinitesimal part of that process. A much larger part was the economic consequences of segregation and racial apartheid. But copyright was one of the many levers of power that were more easily pulled by white hands. This is an important point because the need to end that palpable racial injustice is sometimes used to justify every aspect of our current highly legalized musical culture. About that conclusion, I am less convinced. 58 In any event, it is possible that the musical composition for "I've Got a Savior" went immediately into the public domain. If that were the case, Ray Charles could draw on it, could change it, could refine it without permission or fee. Certainly there is no mention of seeking permission or paying fees in any of the histories of "I Got a Woman." Indeed, the only question of rectitude Charles was focused on was the stylistic one. Was it appropriate to mix gospel and R&B, devotional music and secular desire? Charles and Richard seemed to see the process of rewording and adapting as just a standard part of the musician's creative process. The only question was whether these two styles were aesthetically or morally suited, not whether the borrowing itself was illegal or unethical. So, whether they drew on a hymn that had fallen into the public domain after the expiration of its copyright term, or a gospel song for which copyright had never been sought, or whether they simply took a copyrighted song and did to it something that no one at the time thought was legally inappropriate, Renald Richard and Ray Charles were able to create "I Got a Woman" and play a significant role in founding a new musical genre--soul. 59 One thing is clear. Much of what Charles and Richard did in creating their song would be illegal today. Copyright terms are longer. Copyright protection itself is automatic. Copyright policing is much more aggressive. The musical culture has changed into one in which every fragment must be licensed and paid for. The combination is fatal to the particular pattern of borrowing that created these seminal songs of soul. 60 That should give us pause. I return to the ideas of the Jefferson Warning from Chapter 2 and the Sony Axiom from Chapter 4. Copyright is not an end in itself. It has a goal: to promote the progress of cultural and scientific creativity. That goal requires rights that are less than absolute. As Jessica Litman points out, building in the intellectual space is different from building in the physical space. We do not normally dismantle old houses to make new ones. This point is not confined to music. Earlier I quoted Northrop Frye: "Poetry can only be made out of other poems; novels out of other novels. All of this was much clearer before the assimilation of literature to private enterprise."17 The question is, how big are the holes we need to leave in the private rights? How large a commons do we need to offer to future creators? 61 Ray Charles's creation of "I Got a Woman" is only one case. By itself, it proves nothing. Yet, if we find that the seminal, genre-creating artworks of yesteryear would be illegal under the law and culture of today, we have to ask ourselves "is this really what we want?" What will the music of the future look like if the Clara Wards and Will Lamartine Thompsons of today can simply refuse to license on aesthetic grounds or demand payment for every tiny fragment? Tracing the line further back, it is fascinating to wonder whether gospel, blues, and jazz would have developed if musical motifs had been jealously guarded as private property rather than developed as a kind of melodic and rhythmic commons. Like most counterfactuals, that one has no clear answer, but there is substantial cause for skepticism. If copyright is supposed to be promoting innovation and development in culture, is it doing its job? 62 AN INDUSTRY OF GOLD DIGGERS? 63 Fifty years after "I Got a Woman" was written, Kanye West released "Gold Digger" on the album Late Registration. Mr. West is an interesting figure in rap. At first he was shunned because his clean-cut looks and preppy clothing ran against the gangster image that often dominates the music. It is just hard imagining Mr. West delivering a line like Rakim's "I used to be a stick-up kid, so I think of all the devious things I did" with a straight face. (Still less "Stop smiling, ain't nothin' funny, nothing moves but the money.") Perhaps partly as a result, his lyrics are oddly bipolar in their views about exaggerated masculinity and the misogyny that sometimes accompanies it. 64 For the song, Mr. West recruited Jamie Foxx, who had played Ray Charles in the movie Ray. Showing an impressive expanse of oiled chest, Mr. Foxx imitates Charles's style and the melody of "I Got a Woman" to provide the lyrical chorus to "Gold Digger." "I Got a Woman" anchors West's song. It provides its melodic hook. It breaks up the rap with a burst of musical nostalgia. But Mr. West's gold digger is very different from Ray Charles's woman friend. This woman does not give money when the singer is in need. She takes his money when he is in need and is a "triflin' friend indeed." Mr. Charles had a friend who gave him tender morning loving. Jamie Foxx sings of a mercenary gold digger who digs on him. When Mr. West adds the rap verses to the song, we get a perfect caricature of such a person, uninterested in any man who is broke, dragging around four kids and an entourage, insisting all of them be entertained at her boyfriend's expense, and wielding unfounded paternity suits like a proprietary business method. Mr. West's repeated disclaimer "I ain't sayin' she's a gold digger" is unconvincing, because both the words of the introduction and the implicit message of the rap tell us she is. We even get the absurd image of a man who is playing on the winning side in the Super Bowl but driving a Hyundai, so financially demanding is his girlfriend. At several points the song descends into ludicrous--and perhaps conscious--self-mockery, as it explores the concerns of the rich African-American celebrity male. My favorite line is "If you ain't no punk, holler 'We want prenup!!' " The audience obliges. It sounds like assertiveness training for show business millionaires. 65 It would be hard to get a feminist role model out of either "I Got a Woman" or "Gold Digger." One offers the feminine virtues of modesty and fidelity, but magically combines them with wantonness where the singer is concerned and an open checkbook. The other is a parody of the self-assertive economic actor, as rapacious as any multinational, who uses her sexuality for profit. Put them together and you have bookends--male fantasy and male nightmare. Was that Mr. West's point? Perhaps. The song itself takes several sly turns. The gold digger dogging Mr. West is used as part of a homily to black women on how to treat their (noncelebrity) black men. They should stick with their man because his ambition is going to take him from mopping floors to the fryers, from a Datsun to a Benz. It seems that Mr. West is getting a little preachy, while slamming the actual social mobility available to black men. Moving from floor cleaning to frying chicken is not actually going to provide a Mercedes. But he immediately undercuts that tone twice, once by acknowledging the boyfriend's likely infidelity and again by saying that even if the black woman follows his homily, "once you get on, he leave yo' ass for a white girl." 66 Mr. West has a tendency to make sudden turns like this in his lyrics--ironically upsetting the theme he has just set up. So it is not hard to imagine that he deliberately used a fragment of Charles's song, not just because it sounded good but to contrast the image of the fantasy woman from Charles's 1950s soul, who is faithful, sensual, and always willing to offer a loan, with an image from today's rap--sexually predatory and emasculating women who are uninterested in men except as a source of money. Even the retro cover of the single, with its 1950s-style pinup drawing of a white model, seems to draw the connection. Did he use Charles's song precisely because of these clashing cultural snapshots? Perhaps, or perhaps he just liked the tune. In any event, the contrast is striking. When it was released, Charles's song was seen as a sacrilegious depiction of sensuality and the woman was decried as a harlot. Compared to the woman in Mr. West's song, she sounds like a Girl Scout. It is also a little depressing. Ray Charles was neither an egalitarian metrosexual nor a Prince Charming where women were concerned--anything but. But as I said before, you do get a sense that he liked women--however unrealistic or two-dimensional their portrayal. It is hard to get that sense from "Gold Digger." 67 Was Mr. West legally required to ask permission--and pay, if necessary--to use a fragment of "I Got a Woman" for his chorus? The longest single piece of borrowing occurs in the introduction: twenty-six words and their accompanying music. "She takes my money, when I'm in need, oh she's a triflin' friend indeed. Oh she's a gold digger, way over town, who digs on me." As I pointed out, the lyrics from Charles's song present a very different story. "She gimme money / when I'm in need / Yeah she's a kind of / friend indeed / I've got a woman / way over town / who's good to me." But even if the message is the opposite, the musical borrowing is direct. It is also extensive. During Mr. West's rap, the entire background melody is a loop of Jamie Foxx singing the Ray Charles-inspired melody in the background. During the song, Mr. Foxx returns to words that are closer to Charles's original: "She gimme money, when I'm in need," a refrain that is conspicuously at odds with the woman being described by Mr. West. That eight-bar loop of a Ray Charles melody runs throughout Kanye West's song. 68 Mr. West is very successful, so the fragment of the song was "cleared"--payment was made to Charles's estate. It is fascinating to think of what might have happened if Charles's heirs had refused. After all, one could see West's song as a crude desecration of Charles's earlier work, rather than a good- humored homage. Since this is not a "cover version" of the song--one which does not change its nature and thus operates under the statutory licensing scheme--Charles's heirs would have the right to refuse a licensing request. Unlike Clara Ward, it is clear that Charles's heirs have the legal power to say no, to prevent reuse of which they disapprove. 69 Was West legally required to license? Would all this amount to a copyright violation? It is worth running through the analysis because it gives a beautiful snapshot of the rules with which current law surrounds musical creation. 70 Today, a song is generally covered by at least two copyrights. One covers the musical composition--the sheet music and the lyrics--and the other the particular sound recording of that composition. Just as there are two kinds of copyrights, so there are at least two kinds of borrowings that copyright might be concerned with. First, one musical composition might infringe another. Thus, for example, a court found that George Harrison "subconsciously" based his song "My Sweet Lord" on the melody of "He's So Fine" by the Chiffons. 71 How much does it take to infringe? That is a difficult question. The law's standard is "substantial similarity," but not every kind of similarity counts. Minimal or de minimis copying of tiny fragments is ignored. Certain styles or forms have become standards; for example, the basic chord structure of the twelve- bar blues or the habit of introducing instruments one at a time, from quietest to loudest. There are only so many notes--and so many ways to rearrange them; inevitably any song will be similar to some other. Yet that cannot mean that all songs infringe copyright. Finally, even where there is substantial similarity of a kind that copyright is concerned with, the second artist may claim "fair use"--for parody or criticism, say. Copyright law, in other words, has tried to solve the problem with which I began the chapter. Because much of musical creativity is organic and collective and additive, because it does use prior musical expression, some copyright decisions have tried to carve out a realm of freedom for that creativity, using doctrines with names such as scènes à faire, merger, and fair use. This is yet another example of judges trying to achieve the balance that this book is all about--between the realm of the protected and the public domain--recognizing that it is the balance, not the property side alone, that allows for new creativity. 72 The second type of potential infringement comes when someone uses a fragment of the earlier recording as part of the later one, actually copying a portion of the recording itself and using it in a new song. One might imagine the same rules would be applied--de minimis copying irrelevant, certain standard forms unprotected, and so on. And one would be wrong. In a case called Bridgeport Music, which I will discuss in a moment, the Court of Appeals ruled that taking even two notes of a musical recording counts as potentially actionable copying. Where recordings are concerned, in other words, there is almost no class of copying so minimal that the law would ignore it. This is a terrible decision, at least in my opinion, likely to be rejected by other Circuits and perhaps even eventually by the Supreme Court. But for the moment, it is a case that samplers have to deal with. 73 How does Kanye West fare under these rules? He may sample from the actual recording of Mr. Charles's song. It is hard to tell. He certainly copies portions of the melody. That means we have to look at the copyright in the musical composition--the words and the music of "I Got a Woman." For a copyright infringement, one needs a valid copyright and evidence of copying, the amount copied needs to be more than an insignificant fragment, substantial similarity is required, and the similarity has to be between the new work and the elements of the original that are actually protected by copyright. Elements taken from the public domain, standard introductions, musical clichés, and so forth, do not get included in the calculation of similarity. Finally, the copier can claim "fair use"--that his borrowing is legally privileged because it is commentary, criticism, parody, and so on. 74 Does Charles, or his record company, have a valid copyright in the musical composition? One huge problem in copyright law is that it is remarkably hard to find this out. Even with the best will in the world, it is hard for an artist, musician, or teacher to know what is covered by copyright and what is not. Nowadays, all works are copyrighted as soon as they are fixed, but at the time "I Got a Woman" was written one had to include a copyright notice or the song went immediately into the public domain. The Copyright Office database shows no copyright over the words and music of "I Got a Woman." There are copyrights over a variety of recordings of the song. If Mr. West is using a fragment of the recording, these would affect him. But the melody? It is possible that the underlying musical composition is in the public domain. Finding out whether it is or is not would probably cost one a lot of money. 75 Suppose that Mr. Charles has complied with all the formalities. The words and music were published with a copyright notice. A copyright registration was filed and renewed. Does Mr. West infringe this copyright? That is where the discovery of the Bailey Gospel Singers recording is potentially so important. Charles only gets a copyright in his original creation. Those elements taken from the public domain (if "I've Got a Savior" was indeed in the public domain) or from other copyrighted songs do not count. The irony here is that the elements that Kanye West borrows from Ray Charles are almost exactly the same ones Ray Charles borrows from the Bailey Gospel Singers. "I've got a savior, Oh what a savior" becomes "I got a woman, way over town" becomes "There's a Gold Digger, way over town." And of course, the music behind those words is even more similar. When The Legendary K.O. reached for Kanye West's song in order to criticize Mr. Bush, they found themselves sampling Jamie Foxx, who was copying Ray Charles, who was copying the Bailey Gospel Singers, who themselves may have borrowed their theme from an older spiritual. 76 GEORGE BUSH DOESN'T CARE . . . 77 Five damn days, five long days And at the end of the fifth he walking in like "Hey!" Chilling on his vacation, sitting patiently Them black folks gotta hope, gotta wait and see If FEMA really comes through in an emergency But nobody seem to have a sense of urgency Now the mayor's been reduced to crying I guess Bush said, "N------'s been used to dying!" He said, "I know it looks bad, just have to wait" Forgetting folks was too broke to evacuate N------'s starving and they dying of thirst I bet he had to go and check on them refineries first Making a killing off the price of gas He would have been up in Connecticut twice as fast . . . After all that we've been through nothing's changed You can call Red Cross but the fact remains that . . . George Bush ain't a gold digger, but he ain't f--ing with no broke n------s "George Bush Doesn't Care About Black People," The Legendary K.O. 78 The song "George Bush Doesn't Care About Black People" was an immediate sensation. Hundreds of thousands of people downloaded it. Within days two different video versions had been made, one by Franklin Lopez and another by a filmmaker called "The Black Lantern." Both synchronized the lyrics of the song with news clips of the disaster and unsympathetic footage of President Bush apparently ignoring what was going on. The effect was both hilarious and tragic. The videos were even more popular than the song alone. The blogosphere was fascinated--entries were posted, e-mails circulated to friends with the usual "you have to see this!" taglines. In fact, the song was so popular that it received the ultimate recognition of an Internet fad: the New York Times wrote a story on it, setting the practice in historical context. 79 In the 18th century, songwriters responded to current events by writing new lyrics to existing melodies. "Benjamin Franklin used to write broadside ballads every time a disaster struck," said Elijah Wald, a music historian, and sell the printed lyrics in the street that afternoon. This tradition of responding culturally to terrible events had almost been forgotten, Mr. Wald said, but in the wake of Hurricane Katrina, it may be making a comeback, with the obvious difference that, where Franklin would have sold a few song sheets to his fellow Philadelphians, the Internet allows artists today to reach the whole world.18 80 Mr. Nickerson's and Mr. Randle's song started with Kanye West's words--taken from the fundraiser with Mike Myers. "George Bush doesn't care about black people." From there it launched into the song. The background melody comes almost entirely from a looped, or infinitely repeated, version of the hook that Kanye West and Jamie Foxx had in turn taken from Ray Charles: "She gimme money, when I'm in need. I gotta leave." Against that background, The Legendary K.O. provide their profane and angry commentary, part of which is excerpted above, with a chorus of "George Bush don't like black people," in case anyone had missed the point. 81 The videos differ in the issues they stress. Franklin Lopez's movie is, rather pointedly given its theme, just black and white. He uses ornate captions pages, reminiscent of silent film from the 1920s, to make political points against the background of the song and the news footage. As the captions read "Katrina Rapidly Approaches," we cut to a shot of the hurricane. "The President Ponders on What to Do." We have a shot of Mr. Bush playing golf. "I Think I'll Ride This One Out." Mr. Bush is shown relaxing on a golf cart, juxtaposed against pictures of African-Americans wading through the floods. The captions add, as an afterthought, "And Keep Dealing with the Brown People." (Pictures of soldiers shooting.) When FEMA's Michael Brown is shown--at the moment when Bush said "Brownie, you are doing a hell of a job"--the captions comment mockingly, "The Horse Judge to the Rescue." 82 Mr. Lopez's video obviously tries to use The Legendary K.O.'s song to make larger political arguments about the country. For example, it asserts that "in 2004 Bush diverted most of the funds for the levees to the war in Iraq." Scenes reminiscent of a Michael Moore documentary are shown. There are pictures of the Iraq war, Halliburton signs, and shots of the president with a member of the Saudi royal family. The captions accuse the president of showing insensitivity and disdain to racial minorities. One summarizes the general theme: "Since he was elected president, George Bush's policies have been less than kind toward Africans and Hispanics." Issues ranging from the response to the Darfur massacres, No Child Left Behind, and the attempted privatization of Social Security also make their appearance. The video concludes by giving the donation information for the Red Cross and saying that we are "onto" Bush. A picture of a Klansman removing his hood is shown, with the image manipulated so that the face revealed is Mr. Bush's. 83 The Black Lantern's video is just as angry, and it uses some of the same footage, but the themes it picks up are different. It starts with a logo that parodies the FBI copyright warning shown at the beginning of movies: "WARNING: Artist supports filesharing. Please distribute freely." That dissolves into a picture of Kanye West and Mike Myers. West is speaking, somewhat awkwardly as he goes "off script," and at first Mr. Myers is nodding, though he starts to look increasingly worried. West says, "I hate the way they portray us in the media. You see a black family it says they are looting. You see a white family, it says they are looking for food." Finally, West says "George Bush doesn't care about black people" and the camera catches Myers's mute, appalled reaction. Then the song begins. The film cuts repeatedly between a music video of Mr. Foxx as he sang the lines for "Gold Digger" and the news coverage of the debacle in New Orleans. At one point the music pauses and a news anchor says, "You simply get chills when you look at these people. They are so poor. And so black." The song resumes. Here the message is simpler. The media coverage is biased and governmental attention slowed because of negative racial stereotypes and lack of concern about black people. 84 Some readers will find that this song and these videos capture their own political perspectives perfectly. They will love the bitterly ironic and obscene outrage at the government's failure, the double standards of the press, and the disproportionate and callously disregarded impact on the poor and black. Others will find both song and films to be stupid, insulting, and reductionist--an attempt to find racial prejudice in a situation that, at worst, was an example of good old-fashioned governmental incompetence. Still others will find the language just too off-putting to even think about the message. Whatever your feelings about the content, I urge you to set them aside for a moment. For better or worse, Mr. Bush just happened to be president at the moment when the Internet was coming into its own as a method of distributing digitally remixed political commentary, which itself has recently become something that amateurs can do for pennies rather than an expensive activity reserved to professionals. The point is that whatever rules we apply to deal with "George Bush Doesn't Care About Black People" will also apply to the next video that alleges corruption in a Democratic administration or that attacks the sacred cows of the left rather than the right. How should we think about this kind of activity, this taking the songs and films and photos of others and remixing them to express political, satirical, parodic, or simply funny points of view? 85 SAMPLING 86 Let us begin with the music. Unlike the other songs I have discussed here, with the possible exception of Mr. West's, "George Bush Doesn't Care About Black People" makes use of digital samples of the work of others. In other words, this is not merely about copying the tune or the lyrics. The reason that Mr. Nickerson and Mr. Randle could make and distribute this song so fast (and so cheaply) is that they took fragments from the recording of "Gold Digger" and looped them to form the background to their own rap. That was also part of the reason for the positive public reaction. Kanye West (and Ray Charles and Clara Ward) are very talented musicians. West's song was already all over the airwaves. The Legendary K.O. capitalized on that, just as Benjamin Franklin capitalized on the familiarity of the songs he reworded. But where Franklin could only take the tune, The Legendary K.O. could take the actual ones and zeros of the digital sound file. 87 As I mentioned earlier, there are two types of copyright protection over music. There is the copyright over the musical composition and, a much more recent phenomenon, the copyright over the actual recording. This song potentially infringes both of them. 88 Readers who came of age in the 1980s might remember the music of Public Enemy and N.W.A.--a dense wall of sound on which rap lyrics were overlaid. That wall of sound was in fact made up of samples, sometimes hundreds of tiny samples in a single track. Rap and hip-hop musicians proceeded under the assumption that taking a fragment of someone else's recording was as acceptable legally (and aesthetically) as a jazz musician quoting a fragment of another tune during a solo. In both cases, the use of "quotation" is a defining part of the genre, a harmless or even complimentary homage. Or so they thought. 89 In a 1991 case called Grand Upright, that idea was squashed.19 The rap artist Biz Markie had extensively sampled Gilbert O'Sullivan's song "Alone Again (Naturally)" for his own song "Alone Again." The court could have applied the rules described earlier in this chapter, decided whether or not this was a large enough usage to make the second song substantially similar to the original, discussed whether or not it counted as a fair use, whether Markie's use was transformative or parodic, whether it was going to have a negative impact on the market for the original, weighed the issues, and ruled either way. In doing so, there would have been some nice points to discuss about whether or not the breadth of fair use depends in part on the practice in the relevant artistic community, how to understand parodic reference, or the relevant markets for the work. (Biz Markie's lawyers had asked for permission to use the sample, but the Supreme Court has made clear that seeking permission does not weigh against a defense of fair use.) There were also some tricky issues about the breadth of legal rights over recordings--the right was of relatively recent creation and had some interesting limitations. Underlying it all was a more fundamental question: how do we interpret the rules of copyright so as to encourage musical creativity? After all, as this chapter has shown, borrowing and reference are a fundamental part of musical practice. We ought to think twice before concluding they are illegal. Are we to criminalize jazz? Condemn Charles Ives? And if not, what is the carefully crafted line we draw that allows some of those uses but condemns this one? 90 Judge Duffy, however, was uninterested in any of these subtleties. 91 "Thou shalt not steal" has been an admonition followed since the dawn of civilization. Unfortunately, in the modern world of business this admonition is not always followed. Indeed, the defendants in this action for copyright infringement would have this court believe that stealing is rampant in the music business and, for that reason, their conduct here should be excused. The conduct of the defendants herein, however, violates not only the Seventh Commandment, but also the copyright laws of this country.20 92 If this were a law school exam, it would get a "D." (Maybe a C given grade inflation.) Duffy makes all of the errors Jefferson warned us against. Tangible property is the same as intellectual property. Songs are the same as sheep and the same rules can apply to both. Theft is theft. The prior injunctions of the framers and the courts notwithstanding, we do not need to think carefully about the precise boundaries of intellectual property rights or worry that interpreting them too broadly is as bad as making them too narrow. So far as Judge Duffy is concerned, the tablets on Mount Sinai were inscribed with an absolute injunction against digital sampling. (The font must have been small.) But to say all this is merely to scratch the surface of how regrettable a decision it is. In the narrowest and most formalistic legal terms it is also very poor. 93 Judge Duffy gives not a single citation to the provisions of the Copyright Act. He ignores issues of de minimis copying, substantial similarity, fair use, and the differences between the right over the recording and that over the composition. In fact, he quotes the Bible more, and more accurately, than he does Title 17 of the U.S. Code--the Copyright Act. The one mention he makes of actual copyright law is at the end of the opinion, when he refers the case for criminal prosecution! When I first read this case, I seriously wondered for a moment if it were a crude parody of a legal opinion written by someone who had never been to law school. 94 Is the result in this case wrong? Personally, I do not think so. It is possible, even probable, that a conscientious judge who bothered to read the law could go through a careful analysis and find that Markie's use went beyond de minimis copying, that it was neither creative, parodic, nor short enough to count as a fair use. The judge might have presumed a negative effect on the market for Mr. O'Sullivan's song and thus could have ruled that it was a copyright infringement. In doing so, the judge would have to give some guidance to future courts about digital sampling. The most likely guidance would be "the sample here is so extensive and so unchanged, that this case says little about the wider musical practice of sampling." Judge Duffy's opinion was poor not because of the result he reached, but because he reached it in an overly broad and judicially inappropriate way that became a guideline for future cultural creation. Worse still, the industry listened to him. 95 In excellent books on this issue, Kembrew McLeod and Siva Vaidhyanathan each argue that Grand Upright was a disaster for rap music.21 The industry's practice turned full circle almost overnight. Now every sample, no matter how tiny, had to be "cleared"--licensed from the owners of the recording. As they tell the story, this "legal" change caused an aesthetic change. The number of samples in an average song dropped precipitously. The engaging complexity of the Public Enemy "wall of sound" gave way to the simplistic thumping beat and unimaginative synthesizer lines of modern rap. I must admit to sharing McLeod's and Vaidhyanathan's musical prejudices. The causal claim is harder to substantiate, but industry lawyers and musicians both agree that changes in the industry's understanding of the law had a major role in transforming the practice of sampling. 96 If we disregard the Jefferson Warning and assume the recording artist has absolute property rights over his work, then we could ignore the idea that forcing people to pay for stuff they take might have a negative effect on future art and culture. Theft is theft. I might be able to make art much more easily if I did not have to pay for the paint and canvas, but that is not commonly held to excuse shoplifting from art stores. But if we take the Jefferson Warning seriously, then intellectual property's job is to balance the need to provide incentives for production and distribution with the need to leave future creators free to build upon the past. Reasonable minds will differ on where this line is to be drawn, but the process of drawing it is very different from the process Judge Duffy had in mind. 97 For fifteen years, critics of the decision waited for an appeals court to fix the law in this area. When the case of Bridgeport Music, Inc. v. Dimension Films came up, they thought they had what they wanted. The band NWA had used a tiny fragment (less than two seconds) consisting of three notes of a guitar solo from the George Clinton song "Get Off Your Ass and Jam." The fragment was an arpeggiated chord, which simply means that you strike the notes of the chord individually and in sequence. It was, in fact, a pretty standard "deedly" sound, familiar from many guitar solos. NWA then heavily distorted this fragment and looped it so that it played in the background of one part of the song--so faintly that it is almost impossible to hear and completely impossible to recognize. (With the distortion it sounds like a very faint and distant police siren.) A company called Bridgeport Music owned the sound recording copyright over the Clinton song. They sued. NWA's response was predictable--this was classic de minimis copying, which the law did not touch. One did not even have to get to the issue of fair use (though this surely would be one). 98 The appeals court did not waste any time attempting to dignify Judge Duffy's decision in Grand Upright. 99 Although Grand Upright applied a bright-line test in a sampling case, we have not cited it as precedent for several reasons. First, it is a district court opinion and as such has no binding precedential value. Second, although it appears to have involved claims for both sound recording and musical composition copyright infringement, the trial judge does not distinguish which he is talking about in his ruling, and appears to be addressing primarily the musical composition copyright. Third, and perhaps most important, there is no analysis set forth to indicate how the judge arrived at his ruling, which has resulted in the case being criticized by commentators.22 100 They did like one thing about the decision, however: its bright- line rule, "Thou Shalt Not Steal." (Lawyers use the term "bright-line rule" to refer to a rule that is very easy to apply to the facts. A 55 mph speed limit is a bright-line rule.) The Bridgeport court rejected the idea that sound recording copyrights and music composition copyrights should be analyzed in the same way. They wanted to set a clear rule defining how much of a sound recording one could use without permission. How much? Nothing. To be precise, the court suggests in a footnote that taking a single note might be acceptable since the copyright protection only covers a "series." Anything more, however, is clearly off limits. 101 Though they come to a conclusion that, if anything, is more stringent than Judge Duffy's, they do so very differently. In their words, "Get a license or do not sample." Effectively, the court concludes that the sound recording copyright is different enough from the composition copyright that a court could reasonably conclude that a different analysis is required. The judges are fully aware that copyright must balance encouraging current creators and leaving raw material to future creators--the Jefferson Warning holds no novelty for them. But they conclude that a clear "one-note rule" will do, because if the costs of licenses are too high, samplers can simply recreate the riff themselves, and this will tend to keep prices reasonable. 102 This is an interesting idea. Why does this not happen more often? Why do samplers not simply recreate James Brown's drumbeat from "Funky Drummer," or George Clinton's solo from "Get Off Your Ass and Jam"? Musicians offer lots of different answers. They do not understand the distinction the court is drawing, so the market never develops. The samples themselves cannot be replicated, because the music has all kinds of overtones from the historical equipment used and even the methods of recording. Fundamentally, though, the answer seems to be one of authenticity, ironically enough. The original beats have a totemic significance--like the great standard chord sequences in jazz. One cannot substitute replicas for James Brown's funkiness. It just would not be the same. As Walter Benjamin pointed out long ago in "The Work of Art in the Age of Mechanical Reproduction," cheap copying actually increases the demand for authenticity.23 The court's economic analysis--which imagines a world of fungible beats produced for music as a consumer good--deals poorly with such motivations. 103 When the court first released its decision, it was greeted with concern even by recording industry representatives who might have been expected to favor it, because it appeared to do away with not only the de minimis limitation on copyright (some portions are just too small to count as "copying") but the fair use provisions as well. The court took the very unusual step of rehearing the case and amending the opinion, changing it in a number of places and adding a paragraph that stated that when the case went back to the district court, the judge there was free to consider the fair use defense. Of course, if one takes this seriously--and, for the constitutional reasons given in Chapter 5, I agree that the court has no power to write fair use out of the statute--it undermines the supposedly clear rule. If the factors of fair use are seriously applied, how can a three- note excerpt ever fail to be fair use? And if we always have to do a conventional fair use analysis, then the apparent clarity of the one-note rule is an illusion. 104 The Bridgeport decision is a bad one, I believe. Among other things, it fails to take seriously the constitutional limitations on copyright--including the originality requirement and the First Amendment. (A three-note sample is not original enough to be protected under copyright law, in my view. There are also more speech-related issues in sampling than the court seems to realize.) The competitive licensing market the court imagines seems more like economic fantasy than reality. I think the ruling sets unnecessary barriers on musical creation and ends up with a rule that is just as blurry as the one it criticizes. I think the court's reading of the statute and legislative history is wrong--though I have not bored you with the full details of that argument. But I want to be clear that it is a very different kind of bad decision from Judge Duffy's. 105 The court in Bridgeport does see copyright as a balance. It does understand the need for future creators to build on the past, but it also shows that a simple willingness to look upon intellectual property protections in a utilitarian way does not solve all problems. It certainly does not proceed from Jefferson's presumption that intellectual property protections should be interpreted narrowly. Though it claims to have a "literal" reading of the statute, the real driving force in the analysis is an unconsummated desire for bright-line rules and a belief that the market will solve these problems by itself. The court also suggests that "[i]f this is not what Congress intended or is not what they would intend now, it is easy enough for the record industry, as they have done in the past, to go back to Congress for a clarification or change in the law." Note the assumption that "the record industry" is the most reliable guide to Congress's intentions or that it is the only entity affected by such a rule. This is truly the image of copyright law as a contract among affected industries. Of course, digital artists such as The Legendary K.O. hardly fit within such a model. 106 Under the rule in Bridgeport--"Get a license or do not sample"--Mr. Randle and Mr. Nickerson appear to be breaking the law. They did not get a license and they most definitely did sample. What about fair use? 107 Under fair use, copyright allows a very specific (and possibly lengthy) use of another's material when the purpose is parody of that prior work itself. The Supreme Court gave parody a unique status in the Acuff-Rose case. The (extremely profane) rap group 2 Live Crew had asked for permission to produce a version of Roy Orbison's "Pretty Woman." But where Orbison sang about the pretty woman walking down the street whom he would like to meet, 2 Live Crew wrote about a "big hairy woman" ("with hair that ain't legit, 'cause you look like Cousin It"). They sang about a "bald headed" woman with a "teeny weeny afro." They sang about group sex with both women. Finally, they told a "two timin' woman," "now I know the baby ain't mine." Justice Souter showed the characteristic sangfroid of a Supreme Court justice faced with raunchy rap music. 108 While we might not assign a high rank to the parodic element here, we think it fair to say that 2 Live Crew's song reasonably could be perceived as commenting on the original or criticizing it, to some degree. 2 Live Crew juxtaposes the romantic musings of a man whose fantasy comes true, with degrading taunts, a bawdy demand for sex, and a sigh of relief from paternal responsibility. The later words can be taken as a comment on the naiveté of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies. It is this joinder of reference and ridicule that marks off the author's choice of parody from the other types of comment and criticism that traditionally have had a claim to fair use protection as transformative works.24 [emphasis added] 109 Truly, the law can confront and master all cultural forms. The heart of parody as the Supreme Court described it is that one is taking aim at the original. Because 2 Live Crew could be seen as directing their song at Orbison's original, rather than using Orbison's song to make some other political or social point, the court was willing to give it the favorable consideration that parody receives as a fair use. 110 Does "George Bush Doesn't Care About Black People" fit that model? The Legendary K.O. were not "taking aim" at "Gold Digger." True, they quoted West's actual words from the television broadcast (also copyrighted). They even used them as their title. But they were not taking aim at his song. (Ironically, Kanye West has a better claim that he was taking aim at Ray Charles's picture of womanhood, in just the way described in the 2 Live Crew case.) Rather, The Legendary K.O. were using the sample of the song as the backing to an entirely different rap that expressed, in familiar and popular musical form, a more expansive version of his condemnation of both press and president. That does not end the inquiry. Parody is not the only form of protected criticism or commentary. But it makes it much harder for them to succeed, particularly in light of the hostility toward sampling betrayed by both Grand Upright and Bridgeport. 111 The videos made by The Black Lantern and Franklin Lopez present an even more complex set of questions. On top of the music copyright issues, we also have fair use claims for the extensive news footage and footage of Mr. Foxx. The Black Lantern also used some fragments of a popular video by Jib-Jab, which had a cartoon Bush and Kerry singing dueling parodied versions of Woody Guthrie's "This Land." When JibJab's video first came out, the Guthrie estate claimed copyright infringement over the song. Assisted by a number of public interest legal groups, JibJab claimed fair use. (It eventually came out that the copyright over the song was no longer valid.) What did Jib-Jab do when The Black Lantern sampled them in their turn? In a move that both wins the prize for hypocrisy and serves to sum up the intersection of law and culture I have been describing, they sent him a cease and desist letter. The video was taken down for a week and he was eventually forced to remove the segment of their video from his work. Fair use for me, but not for thee. 112 CONCLUSION 113 The Legendary K.O. samples Kanye West, who uses a fragment from Ray Charles, who may have taken material from Will Lamartine Thompson or, more likely, from Clara Ward (who herself borrowed from a gospel standard). The chain of borrowing I describe here has one end in the hymns and spirituals of the early 1900s and the other in the twenty-first century's chaotic stew of digital sampling, remix, and mashup. Along the way, we have the synthesis of old and the invention of new musical genres--often against the wishes of those whose work is serving as the raw material. One way of viewing this story is that each of these musicians (except for some imaginary original artist, the musical source of the Nile) is a plagiarist and a pirate. If they are licensing their material or getting it from the public domain, then they may not be lawbreakers but they are still unoriginal slavish imitators. If one's image of creativity is that of the romantic, iconoclastic creator who invents the world anew with each creation, those conclusions seem entirely appropriate. The borrowing here is rampant. Far from building everything anew, these musicians seem quite deliberately to base their work on fragments taken from others. 114 It is important to remember that copyright does not subscribe completely to the idea of romantic creation where music is concerned. As I pointed out earlier, musical genres develop out of other genres: soul from gospel and rhythm and blues; gospel from spirituals; rhythm and blues from jazz, jump music, and Delta blues; and so on. When it comes to genres, we can play the game of musicological "six degrees of separation" all day long. Copyright is supposed to leave "holes" in its coverage so that the genre is not covered, only the specific form of creativity within the genre. I mentioned before the need to keep the lines of genre and form open, to keep them free from private property rights in order to allow musicians to develop the form by using them as common property, the "highways" of musical progress. So, for example, the twelve-bar blues uses the first, fourth, and fifth chords in a scale. That sequence cannot be owned, unless blues is to become impossible or illegal. Bebop is characterized by copious use of the flattened fifth--a sound which was jarring to audiences when it was first introduced and which marked the break with the more accessible jazz of swing and the big bands. The flattened fifth is not owned. These characteristic genre- creating sequences or sounds are supposed to be left in the public domain, though increasingly some scholars--including me--are coming to believe that we have managed to make the copyright holder's control so complete and so granular as to close those common areas and impede the development of future musical forms. The Bridgeport court might extend its logic and imagine that the entire musical commons could be licensed, of course. The presence of other chord sequences would keep the price down! But up to now, we have not gone that far. In theory at least, copyright is not supposed to stop the next Ray Charles, the person who wants to fuse two older forms of music to create a third. 115 Yet the chain of borrowing that links The Legendary K.O., Kanye West, Ray Charles, and the Bailey Gospel Singers is of a different kind. This borrowing involves taking chunks of prior musicians' melodies, their words, their lyrical patterns. This is not just copying the genre. It is copying the lines of the song within the genre. This is the kind of stuff copyright is supposed to regulate even when it is working well. And yet, listening to the sequence, it is hard to deny that at each stage something artistic and innovative, something remarkable, has been created. In fact, the story of this song is the striking ability of each set of artists to impose their own sound, temperament, spirituality, humor, vision of women, or, in the case of The Legendary K.O., their intense and profane political anger, onto the musical phrases they have in common. 116 The postmodern conclusion here is "there is nothing new under the sun"--that all creation is re-creation, that there is no such thing as originality, merely endless imitation. If this is meant to be a comment about how things get created, at least in music, I think there is some truth to it. But if it is a claim about aesthetic worth, a denial that there are more and less creative individuals in the arts, I find it as facile and unconvincing as its romantic authorial opposite. 117 What is fascinating about the artists I describe here is that, while they do not fit neatly into either the aesthetic ideal of independent creation or the legal model for how creative expression gets made, they each have a remarkable, palpable creativity. Each leaves us with something new, even if formed partly from the fragments of the past. One could describe Ray Charles as the merest plagiarist--making "search and replace" songs by substituting a woman for the deity in already- established hits. But if that is our conclusion, it merely proves that our theories of aesthetics are poorer than the creativity they seek to describe. So much the worse for the theories. 118 As Jefferson pointed out, the lines surrounding intellectual property are hard to draw--something the Bridgeport court got right. When we draw them, whether legally or as a matter of aesthetic morality, we do so partly with standard instances in mind. "Well, that can't be wrong," we think to ourselves, and reason by analogy accordingly. Yet the process of analogy fails us sometimes, because the types of borrowing change over time. 119 Ray Charles was frank about the way he copied the style and licks of Nat King Cole like an apprentice learning from a lawyer. But he and his estate assiduously guarded his copyrights against more modern borrowing they found to be inappropriate. Judge Duffy thunderously denounces Biz Markie. It is harder to imagine him leveling the same condemnation at Dizzy Gillespie, Charles Ives, Oscar Peterson, or, for that matter, Beethoven, though all of them made copious use of the works of others in their own. It is bizarre to imagine a Bridgeport-like rule being extended to composition copyrights and applied to music such as jazz. "Get a license or do not solo"? I think not. Does it make any more sense for sampling? 120 If there is a single reason I told the story of these songs it is this: to most of us, certainly to me, the idea that copyright encourages creativity and discourages the reuse of material created by others seems reasonable. Of course, I would want to apply the correctives implied by the Jefferson Warning--to make sure the rights were as short and as narrow as possible. But at least when it comes to copying chunks of expression still covered by copyright, our intuitions are to encourage people to create "their own work," rather than to rely on remix. What does that mean in the world of music? As the story I have told here seems to illustrate, even musicians of unquestioned "originality," even those who can make a claim to having created a new musical genre, sometimes did so by a process rather more like collage than creation out of nothing, taking chunks of existing work that were proven to work well and setting them in a new context or frame. 121 Imagine Ray Charles trying to create "I Got a Woman" today. Both of his possible sources would be strongly and automatically protected by copyright. The industries in which those works were produced would be much more legalistic and infinitely more litigious. The owners of those copyrights could use them to stop him from "desecrating their work"--which is literally what he is doing. We know Clara Ward objected to Charles's other borrowings from gospel. I cannot imagine Will Lamartine Thompson or his worthy neighbors in East Liverpool looking kindly on the sweet "early morning loving" outside of wedlock described in "I Got a Woman," still less the use of sacred music to glorify it. And copyright gives them the power to say no. Remember Macaulay's description of how Richardson's novels might have been censored by a moralistic heir? Even if the objections were not vetoes, but simple demands for payment, would we get "I Got a Woman" and "This Little Girl of Mine"? Given the extent of the borrowing that jump-started this particular genre-bridging effort, would we be likely to see the birth of soul music? 122 Congress assures us that the many increases in copyright protection have been in the name of encouraging creativity. The music industry says the same thing when its pettifogging clearance procedures and permission culture are criticized. But do we really think we are more likely to get a twenty-first- century Ray Charles, or a fusion of styles to create a new genre, in the world we have made? Do we really think that the formalist ignorance of Judge Duffy or the market optimism of the Bridgeport court, in which thick markets offer fungible sets of samples to be traded like commodities, are good guides for the future of music? Are we in fact killing musical creativity with the rules that are supposed to defend it? 123 An Internet optimist would tell us that is precisely the point. True, because of the errors described in the chapter on the Jefferson Warning, and the mistakes catalogued in the chapters on the Internet Threat and the Farmers' Tale, we have dramatically expanded the scope, length, and power of the rights that are supposed to shape our creative culture. But technology cures all. Look at The Legendary K.O., The Black Lantern, or Franklin Lopez. They are all probably breaking the law as it is currently interpreted by the courts. But their work can be created for pennies and distributed to millions. The technology allows people to circumvent the law. Admittedly, some of the copyright holders will police their rights assiduously--think of JibJab's newfound dislike of fair use and their power to alter The Black Lantern's video. But others either cannot or will not. Kanye West's representatives in particular are unlikely to be stupid enough to sue The Legendary K.O. in the first place. Internet distribution becomes a demimonde in which the rules of the rest of the society either cannot or will not be enforced. Art gets its breathing room, not from legal exceptions, but from technological enforcement difficulties. Finally, as more and more people can create and distribute digital culture, they are less likely to understand, believe in, or accept rules that are strongly at variance with their aesthetic and moral assumptions. 124 There is a lot to these points. The technology does transform the conditions of creativity, and sometimes it runs right over the law in the process. Thousands, even millions, can be reached outside of conventional distribution channels with work that is technically illegal. And attitudes toward creative propriety do not track legal rules. When I wrote to Mr. Randle and Mr. Nickerson, I found that they realized Mr. West probably had a legal right to get their work taken down, but they felt he would not use it, and they had a very commonsensical conception of what they ought to be allowed to do. They were not making any money from this. They were making a political point, drawing attention to a political and human problem. That made it okay. They would have liked more formal permission so that they could actually distribute CDs through conventional for-profit channels, perhaps with some portion of the proceeds going to disaster relief, but they understood they were unlikely to get it. 125 Despite all this, I am uncomfortable with the argument "do not worry, technology will allow us to evade the rules where they are stupid." A system that can only function well through repeated lawbreaking is an unstable and dangerous one. It breeds a lack of respect for the law in those who should be its greatest supporters and beneficiaries. It blurs civil disobedience and plain old lawbreaking. Sitting in on the segregated lunch counter and being willing to face the consequences is very different from parking in the disabled space and hoping you can get away with it. It also blurs our judgment of conduct. Whatever one thinks of them, The Legendary K.O. are doing something very different than a college student who just does not want to pay for music and downloads thousands of tracks for free from file sharing networks. 126 The problem is not simply one of blurring. Technology-based "freedoms" are not reliable (though legal ones, too, may fail). In a pinch, the technology may not save you, as thousands of those same downloaders have found out when sued by the RIAA and forced to pay thousands of dollars for an activity they thought to be private and anonymous. The Internet "solution" also leaves certain types of artistic creation dependent on the vagaries of the current technology, which may well change, eliminating some of the zone of freedom we currently rely on. But more worrisome is the fact that this "solution" actually confines certain types of art to the world of the Internet. 127 The video of "George Bush Doesn't Care About Black People" could be seen by many, but only if they were wired to the right technological and social network. (After all, someone has to tell you to watch.) It was a searing intervention in the national debate on Katrina. But it appeared on no television station. Like most of the mashups created online, the fact that the rights could never be cleared keeps it off mass media. Copyright acts as the barbed wire around mass media outlets. That is a shame, I think. Not because that video is so good--you may love it or hate it. But because this kind of artwork has something important to contribute to our national culture. Imagine a world in which Ray Charles could create "I Got a Woman," but could only circulate it to a narrow group of the file-trading digerati because of a flagrant violation of Clara Ward's copyright. Do we still get soul? The blues? Jazz? Or do we just get a precious and insular digital subculture, whose cultural experiments never reach the mainstream? 128 Throughout his life, Charles described an intimate relationship with his audience, with the public. He described their tastes as a check, as a corrective; he thought they would actually be "ahead" of the artists. He wanted to make songs that would be listened to by tens of millions of people. And he wanted to make art and lots of money. I am all for the person who wants to create as an "amateur-professional" and distribute outside the chains of commerce. I have worked with organizations that make it easier to do this. But I also believe in the power and creativity of commercial culture and political speech carried on mass media. Ironically, our current copyright system serves it poorly. 129 What is the solution to all of this? The music business runs on compulsory licenses, a legally granted ability to use music in certain ways without permission, though with a fee. The system seems to function pretty well. One solution is to extend that system to the world of mashups and derivative works. If you merely copy the whole of my work and circulate it on file sharing networks or on CDs, we apply the current rules and penalties. If, on the other hand, you make a "derivative" work, mixing your work with mine, then there are two alternatives. If you stay in the world of nonprofit exchange, you get a heightened presumption in favor of fair use (perhaps administered through a quicker and cheaper system of arbitration). If you move into the for-profit world, then you must pay a flat licensing fee or percentage of profits to the copyright holder. 130 A second solution would be to curtail the hypertrophy of protectionism that made all this happen in the first place. The copyright term could be shortened or we could require renewal every twenty-eight years. (There are international treaties that currently forbid the latter alternative.) We could cut back on excesses like the Bridgeport decision, create incentives to make the music industry less legalistically insistent on policing the most atomic level of creation. We could exempt samples shorter than five seconds from copyright liability, clarify the boundaries of fair use, and extend it beyond parody to other genre-smashing forms such as satire and collage. 131 There are enormous obstacles to all these proposals. In particular, while artists fare very poorly under the current clearance culture--paying but not receiving the benefits of payments--the middlemen who profit from transaction costs are not keen on abolishing them. Certainly if, as the Bridgeport court assumed, the recording industry is the party responsible for fine-tuning copyright law, we are hardly likely to see any reforms that threaten current modes of doing business. Yet there is a ray of hope. It is getting harder and harder to pretend that the rules ostensibly designed to encourage creativity are actually working. At the same time, more and more people are creating and distributing cultural objects--becoming "subjects" of intellectual property law in the process, often to their dismay and irritation. It is in that conjunction--a far cry from the industry contract envisioned by the Bridgeport court--that hope for the future of copyright law's treatment of culture might lie. Chapter 7: The Enclosure of Science and Technology: Two Case Studies 1 Over the last forty years, much has changed in the way that scientific research and technological development are organized, funded, and institutionally arranged. Much has also changed in the type of scientific and technical material that is covered by intellectual property rights, the ways that material is covered, the parties who hold the rights, and the state of research and development at which rights claims are made. Many academics who study both science's organizational structure and the intellectual property claims that surround it are concerned about the results. To say this is not to conjure up a tragically lost world of pure research science, untainted by property claims or profit motives. That world never existed and it is probably a good thing too. Intellectual property rights, and the profit motive more generally, have a vital and beneficial role in moving innovations from lab bench to bedside, from computer simulation to actual flight. The question is not whether intellectual property rights are useful as part of scientific and technological development. The question is what type of rights they should be, where in the research process those rights are best deployed, how they should coexist with state funded basic scientific and technological research, how broad they should be, how they should deal with new technologies, how long they should last, how they should treat follow-on innovations. 2 I cannot hope here to answer all those questions, though some fascinating research has begun the process. Instead, as with the music chapter, I will offer a case study--actually two case studies--that try to illuminate the process I am describing, to illustrate its pitfalls and its strange and unintended consequences. 3 The two defining technologies of the last thirty years are biotechnology and the networked computer. Each is both product and platform. Innovations themselves, they are also constitutive technologies that enable still more innovations. But at several historical moments in the development of each we came perilously close to breaking technology with law.1 Some would say that it was not just a close shave: we actually have hampered or limited the full potential of technology, slowing down its dynamism with a host of overbroad software patents, gene patents, and materials transfer agreements. Others are more optimistic. They think that a series of rapid improvisations by courts, scientists, programmers, and businesspeople has largely mitigated any problems caused by the process of legal expansion.2 But if mistakes were made, it is important to know what they were lest we continue or repeat them. If there were "fixes," it is important to know if they can be replicated. 4 So were there mistakes? If so, have they been fixed, and how? Drawing on an article I co-wrote with my brilliant colleague Arti Rai,3 this chapter suggests some answers to those questions by sketching out some details of the legal history of those technologies, concluding with a discussion of a single promising new technology that shares aspects of both--synthetic biology. The answers are important. Behind the abstract words "innovation" or "technological development" there are lives saved or lost, communicative freedoms expanded or contracted, communities enabled or stunted, wealth generated or not. The subject would benefit from informed, sophisticated, democratic attention. It is not something you want to leave a host of lawyers and lobbyists to decide among themselves. 5 A MACHINE THAT CONTAINS ALL OTHER MACHINES 6 Imagine a person staring at an infinite roll of paper tape. On the paper are symbols in some alphabet or number system. The reader carries out simple, operable instructions on the basis of that data. "Add together the next two digits you are presented with and write down the answer. If the answer is odd, go to step 2. If the answer is even, go to step 3." Now replace the person with a mechanical head that can "read" the instructions, carry out the desired operations, and write the answer down. The British mathematician Alan Turing imagined something like this--a little more complicated, perhaps, but fairly similar. What is it? We have the reading head, the set of instructions, the data on which the instructions are to be performed, the record of the result, and some kind of "state table" that tells the machine where it is in the process. These are the component parts of Turing machines--or as we know them better, computers. More accurately, Turing machines are a method of simulating the operation of computers, a metaphor that enables us to imitate their logical processes. In the words of Wikipedia, "despite their simplicity--[they] can be adapted to simulate the logic of any computer that could possibly be constructed." And to give lawyers fits. But that is getting ahead of ourselves. 7 In Greek mythology, Procrustes had a bed to which he fitted its prospective occupants, whether they liked it or not. The tall were trimmed down. The short stretched on the rack. Intellectual property lawyers have many similarities to Procrustes. The technologies that are brought before them are made to fit the conceptual boxes the law provides, boxes with names such as "copyright" and "patent." Occasionally, new conceptual boxes are made, but--for very good reasons--most of the time we stick with the boxes we have. As with Procrustes, things do not always fit and the process can be distressing for its subjects. 8 It is important to realize that the process of trimming and stretching can be done well or badly. If it is done really badly, the technology is stunted, deformed, even destroyed. If it is done well, the law aids the development of the technology in exactly the happy way described in Chapter 1. What did our Procrustean legal system do with computers and computer science? 9 I will focus on software--the set of instructions the machine is to perform. How should we think of it? Software is written down by programmers. It is recorded first in a form readable to humans, or at least geeks. Then, through a series of transformations, it is turned into the machine code, the ones and zeros that will operate the computer. But at its root it can be understood through the metaphor of the simple list of instructions to be carried out in order, just as with the Turing machine and its infinite tape. 10 How should we fit software into the categories of intellectual property? We have "writing," fixation in some medium of symbols that can be read by others--both machine and human. Writing is normally the domain of copyright. Are computer programs copyrightable? All kinds of problems present themselves. At least in the United States, copyright covers expression. As I pointed out in a previous book, at its base is the conception of the romantic author impressing her uniqueness of spirit on the work at the moment of writing. It is that expressive choice, not the facts or ideas on which the work is based, that copyright covers. And it is only original expression that copyright covers. It does not cover purely functional objects, systems, processes, or methods of operation. One cannot copyright the coat hanger, the mousetrap, or long division. One cannot even copyright a "sculpture" if the main function of its design is to serve as a bicycle rack. Admittedly, one can copyright some expressive works that serve a practical purpose. A book about how to do double-entry bookkeeping is copyrightable. Yet copyright covers only the expressive choices used in selecting the words to explain the method, and the images to represent it, not the methods it describes or the facts or ideas it contains. Can copyright cover computer programs? Should we see them as copyrightable how-to books or as uncopyrightable machines made of words? 11 Machines and other functional innovations are normally the domain of patent rights. One can patent the mousetrap, and then one gets an exclusive right to the actual mechanically enabled method of catching mice, not just the artistic flourishes on the blueprint. Patents have more demanding criteria than copyrights. The invention needs to be novel and have utility, or usefulness; I cannot get a patent over something that would have been an obvious idea to an insider in the relevant field of technology, a "person having ordinary skill in the art," or PHOSITA, in the jargon of patent lawyers. But once I get my patent, it gives me a very strong power to exclude others from the invention--even if they came up with it independently. The right lasts for twenty years. Follow-on innovators who improve on my idea can get a patent on that improvement. They can block me from using the improvement. I can block them from using the original invention. Thus we have an incentive to negotiate if either of us wants to bring the improved innovation to market. 12 So where did software fit? Was it copyrightable writing or patentable invention? There are two issues here. The first is whether there should be any intellectual property rights over software at all. The basic case for that proposition is simple, a classic example of the public goods problem described in the first chapter. Software costs money to create, but is cheap to copy. When a youthful Bill Gates wrote his 1976 letter to the wonderfully named Dr. Dobb's Journal of Computer Calisthenics & Orthodontia, he put the point clearly. 13 Who can afford to do professional work for nothing? What hobbyist can put 3-man years into programming, finding all the bugs, documenting his product and distribute it for free? The fact is, no one besides us has invested a lot of money into hobby software. We have written 6800 BASIC, and are writing 8080 APL and 6800 APL, but there is very little incentive to make this software available to hobbyists. Most directly, the thing you do is theft.4 14 He signed the letter "Bill Gates, General Partner, Micro-Soft." The hyphen would disappear in time. The philosophy stuck around. 15 Though there are quibbles about the facts in Gates's letter--critics claim he himself did a lot of free riding on public domain code and government-funded computer time--his basic point is that software needs to be protected by (enforceable) property rights if we expect it to be effectively and sustainably produced. Some software developers disagree. But assuming one concedes the point for the sake of argument, there is a second question: should software be covered by copyright or patent, or some unidentified third option? 16 In practice, software ended up being covered by both schemes, partly because of actions by Congress, which included several references to software in the Copyright Act, and partly as a result of decisions by the Copyright Office, the Patent and Trademark Office, and judges. One could copyright one's code and also gain a patent over the "nonobvious," novel, and useful innovations inside the software. 17 At first, it was the use of copyright that stirred the most concern. As I explained in the last chapter, copyright seems to be built around an assumption of diverging innovation--the fountain or explosion of expressive activity. Different people in different situations who sit down to write a sonnet or a love story, it is presumed, will produce very different creations rather than being drawn to a single result. Thus strong rights over the resulting work are not supposed to inhibit future progress. I can find my own muse, my own path to immortality. Creative expression is presumed to be largely independent of the work of prior authors. Raw material is not needed. "Copyright is about sustaining the conditions of creativity that enable an individual to craft out of thin air an Appalachian Spring, a Sun Also Rises, a Citizen Kane."5 18 There are lots of reasons to doubt that this vision of "creation out of nothing" works very well even in the arts, the traditional domain of copyright law. The story of Ray Charles's "I Got a Woman" bears ample witness to those doubts. But whatever its merits or defects in the realm of the arts, the vision seems completely wrongheaded when it comes to software. Software solutions to practical problems do converge, and programmers definitely draw upon prior lines of code. Worse still, as I pointed out earlier, software tends to exhibit "network effects." Unlike my choice of novel, my choice of word processing program is very strongly influenced, perhaps dominated, by the question of what program other people have chosen to buy. That means that even if a programmer could find a completely different way to write a word processing program, he has to be able to make it read the dominant program's files, and mimic its features, if he is to attract any customers at all. That hardly sounds like completely divergent creation. 19 Seeing that software failed to fit the Procrustean bed of copyright, many scholars presumed the process of forcing it into place would be catastrophic. They believed that, lacking patent's high standards, copyright's monopolies would proliferate widely. Copyright's treatment of follow-on or "derivative" works would impede innovation, it was thought. The force of network effects would allow the copyright holder of whatever software became "the standard" to extract huge monopoly rents and prevent competing innovation for many years longer than the patent term. Users of programs would be locked in, unable to shift their documents, data, or acquired skills to a competing program. Doom and gloom abounded among copyright scholars, including many who shared Mr. Gates's basic premise--that software should be covered by property rights. They simply believed that these were the wrong property rights to use. 20 Copyright did indeed cause problems for software developers, though it is hard to judge whether those problems outweighed the economic benefits of encouraging software innovation, production, and distribution. But the negative effects of copyright were minimized by a remarkably prescient set of actions by courts and, to a much lesser extent, Congress, so that the worst scenarios did not come to pass. Courts interpreted the copyright over software very narrowly, so that it covered little beyond literal infringement. (Remember Jefferson's point about the importance of being careful about the scope of a right.) They developed a complicated test to work out whether one program infringed the details of another. The details give law students headaches every year, but the effects were simple. If your software was similar to mine merely because it was performing the same function, or because I had picked the most efficient way to perform some task, or even because there was market demand for doing it that way, then none of those similarities counted for the purposes of infringement. Nor did material that was taken from the public domain. The result was that while someone who made literal copies of Windows Vista was clearly infringing copyright, the person who made a competing program generally would not be. 21 In addition, courts interpreted the fair use doctrine to cover "decompilation"--which is basically taking apart someone else's program so that you can understand it and compete with it. As part of the process, the decompiler had to make a copy of the program. If the law were read literally, decompilation would hardly seem to be a fair use. The decompiler makes a whole copy, for a commercial purpose, of a copyrighted work, precisely in order to cause harm to its market by offering a substitute good. But the courts took a broader view. The copy was a necessary part of the process of producing a competing product, rather than a piratical attempt to sell a copy of the same product. This limitation on copyright provided by fair use was needed in order to foster the innovation that copyright is supposed to encourage. This is a nice variation of the Sony Axiom from Chapter 4. 22 These rulings and others like them meant that software was protected by copyright, as Mr. Gates wanted, but that the copyright did not give its owner the right to prevent functional imitation and competition. Is that enough? Clearly the network effects are real. Most of us use Windows and most of us use Microsoft Word, and one very big reason is because everyone else does. Optimists believe the lure of capturing this huge market will keep potential competitors hungry and monopolists scared. The lumbering dominant players will not become complacent about innovation or try to grab every morsel of monopoly rent, goes the argument. They still have to fear their raptor-like competitors lurking in the shadows. Perhaps. Or perhaps it also takes the consistent threat of antitrust enforcement. In any event, whether or not we hit the optimal point in protecting software with intellectual property rights, those rights certainly did not destroy the industry. It appeared that, even with convergent creativity and network effects, software could be crammed into the Procrustean bed of copyright without killing it off in the process. Indeed, to some, it seemed to fare very well. They would claim that the easy legal protection provided by copyright gave a nascent industry just enough protection to encourage the investment of time, talent, and dollars, while not prohibiting the next generation of companies from building on the innovations of the past. 23 In addition, the interaction between copyright and software has produced some surprising results. There is a strong argument that it is the fact that software is copyrightable that has enabled the "commons-based creativity" of free and open source software. What does commons-based creativity mean? Basically, it is creativity that builds on an open resource available to all. An additional component of some definitions is that the results of the creativity must be fed back into the commons for all to use. Think of English. You can use English without license or fee, and you can innovate by producing new words, slang, or phrases without clearance from some Academie Anglaise. After you coin your term, it is in turn available to me to build upon or to use in my own sentences, novels, or jokes. And so the cycle continues. As the last chapter showed, for the entire history of musical creativity until the last forty years or so, the same had been true of at least a low level of musical borrowing. At the basic level of musical phrases, themes, snatches of melody, even chord structures, music was commons-based creativity. Property rights did not reach down into the atomic structure of music. They stayed at a higher level--prohibiting reproduction of complete works or copying of substantial and important chunks. So in some areas of both music and language, we had commons- based creativity because there were no property rights over the relevant level. The software commons is different. 24 The creators of free and open source software were able to use the fact that software is copyrighted, and that the right attaches automatically upon creation and fixation, to set up new, distributed methods of innovation. For example, free and open source software under the General Public License--such as Linux--is a "commons" to which all are granted access. Anyone may use the software without any restrictions. They are guaranteed access to the human-readable "source code," rather than just the inscrutable "machine code," so that they can understand, tinker, and modify. Modifications can be distributed so long as the new creation is licensed under the open terms of the original. This creates a virtuous cycle: each addition builds on the commons and is returned to it. The copyright over the software was the "hook" that allowed software engineers to create a license that gave free access and the right to modify and required future programmers to keep offering those freedoms. Without the copyright, those features of the license would not have been enforceable. For example, someone could have modified the open program and released it without the source code--denying future users the right to understand and modify easily. To use an analogy beloved of free software enthusiasts, the hood of the car would be welded shut. Home repair, tinkering, customization, and redesign become practically impossible. 25 Of course, if there were no copyright over software at all, software engineers would have other freedoms--even if not legally guaranteed open access to source code. Still, it was hard to deny that the extension of the property regime had--bizarrely, at first sight--actually enabled the creation of a continuing open commons. The tempting real estate analogy would be environmentalists using strong property rights over land to guarantee conservation and open access to a green space, where, without property rights, the space could be despoiled by all. But as I have pointed out earlier, while such analogies may help us, the differences between land and intellectual property demand that they be scrutinized very carefully. It is hard to overgraze an idea. 26 So much for copyright. What about patents? U.S. patent law had drawn a firm line between patentable invention and unpatentable idea, formula, or algorithm. The mousetrap could be patented, but not the formula used to calculate the speed at which it would snap shut. Ideas, algorithms, and formulae were in the public domain--as were "business methods." Or so we thought. 27 The line between idea or algorithm on the one hand and patentable machine on the other looks nice and easy. But put that algorithm--that series of steps capable of being specified in the way described by the Turing machine--onto a computer, and things begin to look more complex. Say, for example, that algorithm was the process for converting miles into kilometers and vice versa. "Take the first number. If it is followed by the word miles, then multiply by 8/5. If it is followed by the word kilometers, multiply by 5/8 . . ." and so on. In the abstract, this is classic public domain stuff--no more patentable than E=mc2 or F=ma. What about when those steps are put onto the tape of the Turing machine, onto a program running on the hard drive of a computer? 28 The Court of Appeals for the Federal Circuit (the United States's leading patent court) seems to believe that computers can turn unpatentable ideas into patentable machines. In fact, in this conception, the computer sitting on your desk becomes multiple patentable machines--a word processing machine, an e- mail machine, a machine running the program to calculate the tensile strength of steel. I want to stress that the other bars to patentability remain. My example of mile-to-kilometer conversion would be patentable subject matter but, we hope, no patent would be granted because the algorithm is not novel and is obvious. (Sadly, the Patent and Trademark Office seems determined to undermine this hope by granting patents on the most mundane and obvious applications.) But the concern here is not limited to the idea that without a subject matter bar, too many obvious patents will be granted by an overworked and badly incentivized patent office. It is that the patent was supposed to be granted at the very end of a process of investigation and scientific and engineering innovation. The formulae, algorithms, and scientific discoveries on which the patented invention was based remained in the public domain for all to use. It was only when we got to the very end of the process, with a concrete innovation ready to go to market, that the patent was to be given. Yet the ability to couple the abstract algorithm with the concept of a Turing machine undermines this conception. Suddenly the patents are available at the very beginning of the process, even to people who are merely specifying--in the abstract--the idea of a computer running a particular series of algorithmic activities. 29 The words "by means of a computer" are--in the eyes of the Federal Circuit--an incantation of magical power, able to transubstantiate the ideas and formulae of the public domain into private property. And, like the breaking of a minor taboo that presages a Victorian literary character's slide into debauchery, once that first wall protecting the public domain was breached, the court found it easier and easier to breach still others. If one could turn an algorithm into a patentable machine simply by adding "by means of a computer," then one could turn a business method into something patentable by specifying the organizational or information technology structure through which the business method is to be implemented. 30 If you still remember the first chapters of this book, you might wonder why we would want to patent business methods. Intellectual property rights are supposed to be handed out only when necessary to produce incentives to supply some public good, incentives that otherwise would be lacking. Yet there are already plenty of incentives to come up with new business methods. (Greed and fear are the most obvious.) There is no evidence to suggest that we need a state-backed monopoly to encourage the development of new business methods. In fact, we want people to copy the businesses of others, lowering prices as a result. The process of copying business methods is called "competition" and it is the basis of a free-market economy. Yet patent law would prohibit it for twenty years. So why introduce patents? Brushing aside such minor objections with ease, the Court of Appeals for the Federal Circuit declared business methods to be patentable. Was this what Jefferson had in mind when he said "I know well the difficulty of drawing a line between the things which are worth to the public the embarrassment of an exclusive patent, and those which are not"? I doubt it. 31 It is commonplace for courts to look at the purpose of the law they are enforcing when seeking to understand what it means. In areas of regulation which are obviously instrumental--aimed at producing some particular result in the world--that approach is ubiquitous. In applying the antitrust laws, for example, courts have given meaning to the relatively vague words of the law by turning to economic analysis of the likely effects of different rules on different market structures. 32 Patent law is as instrumental a structure as one could imagine. In the United States, for example, the constitutional authorization to Congress to pass patent and copyright legislation is very explicit that these rights are to be made with a purpose in view. Congress has the power "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." One might imagine that courts would try to interpret the patent and copyright laws with that purpose, and the Jefferson Warning about its constraints, firmly in mind. Yet utilitarian caution about extending monopolies is seldom to be found in the reasoning of our chief patent court. 33 The difference is striking. Jefferson said that the job of those who administered the patent system was to see if a patent was "worth the embarrassment to the public" before granting it. The Constitution tells Congress to make only those patent laws that "promote the progress of science and useful arts." One might imagine that this constitutional goal would guide courts in construing those same laws. Yet neither Jeffersonian ideals nor the constitutional text seem relevant to our chief patent court when interpreting statutory subject matter. Anything under the sun made by man is patentable subject matter, and there's an end to it. The case that announced the rule on business methods involved a patent on the process of keeping accounts in a "hub- and-spoke" mutual fund--which included multiplying all of the stock holdings of each fund in a family of funds by the respective current share price to get total fund value and then dividing by the number of mutual fund shares that each customer actually holds to find the balance in their accounts. As my son observed, "I couldn't do that until nearly the end of third grade!"6 34 In theory of course, if the patent is not novel or is obvious, it will still be refused. The Supreme Court recently held that the Court of Appeals for the Federal Circuit has made "nonobvious" too easy a standard to meet.7 It is unclear, however, whether that judgment will produce concrete effects on actual practices of patent grants and litigation. The Patent and Trademark Office puts pressure on examiners to issue patents, and it is very expensive to challenge those that are granted. Better, where possible, to rule out certain subject matter in the first place. Tempted in part by its flirtation with the "idea made machine" in the context of a computer, the Court of Appeals for the Federal Circuit could not bring itself to do so. Where copyright law evolved to wall off and minimize the dangers of extending protection over software, patent law actually extended the idea behind software patents to make patentable any thought process that might produce a useful result. Once breached, the walls protecting the public domain in patent law show a disturbing tendency to erode at an increasing rate. 35 To sum up, the conceptual possibilities presented to copyright and patent law by the idea of a Turing machine were fascinating. Should we extend copyright or patent to cover the new technology? The answer was "we will extend both!" Yet the results of the extension were complex and unexpected in ways that we will have to understand if we want to go beyond the simple but important injunctions of Jefferson and Macaulay. Who would have predicted that software copyrights could be used to create a self-perpetuating commons as well as a monopoly over operating systems, or that judges would talk knowingly of network effects in curtailing the scope of coverage? Who would have predicted that patents would be extended not only to basic algorithms implemented by a computer, but to methods of business themselves (truly a strange return to legalized business monopolies for a country whose founders viewed them as one of the greatest evils that could be borne)? 36 SYNTHETIC BIOLOGY 37 If you are a reader of Science, PLoS Biology, or Nature, you will have noticed some attractive and bizarre photographs recently. A field of bacteria that form themselves into bull's- eyes and polka dots. A dim photograph of a woman's face "taken" by bacteria that have been programmed to be sensitive to light. You may also have read about more inspiring, if less photogenic, accomplishments--for example, the group of scientists who managed to program bacteria to produce artemesinin, a scarce natural remedy for malaria derived from wormwood. Poking deeper into these stories, you would have found the phrase "synthetic biology" repeated again and again, though a precise definition would have eluded you. 38 What is "synthetic biology"? For some it is simply that the product or process involves biological materials not found in nature. Good old-fashioned biotechnology would qualify. One of the first biotechnology patent cases, Diamond v. Chakrabarty, involved some bacteria which Dr. Chakrabarty had engineered to eat oil slicks--not their natural foodstuff.8 The Supreme Court noted that the bacteria were not found in nature and found them to be patentable, though alive. According to the simplest definition, Dr. Chakrabarty's process would count as synthetic biology, though this example antedates the common use of the term by two decades. For other scientists, it is the completely synthetic quality of the biology involved that marks the edge of the discipline. The DNA we are familiar with, for example, has four "base pairs"-- A, C, G, and T. Scientists have developed genetic alphabets that involve twelve base pairs. Not only is the result not found in nature, but the very language in which it is expressed is entirely new and artificial. 39 I want to focus on a third conception of synthetic biology: the idea of turning biotechnology from an artisanal process of one- off creations, developed with customized techniques, to a true engineering discipline, using processes and parts that are as standardized and as well understood as valves, screws, capacitors, or resistors. The electrical engineer told to build a circuit does not go out and invent her own switches or capacitors. She can build a circuit using off-the-shelf components whose performance is expressed using standard measurements. This is the dream of one group of synthetic biologists: that biological engineering truly become engineering, with biological black boxes that perform all of the standard functions of electrical or mechanical engineering--measuring flow, reacting to a high signal by giving out a low signal, or vice versa, starting or terminating a sequence, connecting the energy of one process to another, and so on. 40 Of course an engineer understands the principle behind a ratchet, or a valve, but he does not have to go through the process of thinking "as part of this design, I will have to create a thing that lets stuff flow through one way and not the other." The valve is the mechanical unit that stands for that thought, a concept reified in standardized material form which does not need to be taken apart and parsed each time it is used. By contrast, the synthetic biologists claim, much of current biotechnological experimentation operates the way a seventeenth- century artisan did. Think of the gunsmith making beautiful one- off classics for his aristocratic patrons, without standardized calibers, parts, or even standard-gauge springs or screws. The process produces the gun, but it does not use, or produce, standard parts that can also be used by the next gunsmith. 41 Is this portrayal of biology correct? Does it involve some hyping of the new hot field, some denigration of the older techniques? I would be shocked, shocked, to find there was hype involved in the scientific or academic enterprise. But whatever the degree to which the novelty of this process is being subtly inflated, it is hard to avoid being impressed by the projects that this group of synthetic biologists has undertaken. The MIT Registry of Standard Biological Parts, for example, has exactly the goal I have just described. 42 The development of well-specified, standard, and interchangeable biological parts is a critical step towards the design and construction of integrated biological systems. The MIT Registry of Standard Biological Parts supports this goal by recording and indexing biological parts that are currently being built and offering synthesis and assembly services to construct new parts, devices, and systems. . . . In the summer of 2004, the Registry contained about 100 basic parts such as operators, protein coding regions, and transcriptional terminators, and devices such as logic gates built from these basic parts. Today the number of parts has increased to about 700 available parts and 2000 defined parts. The Registry believes in the idea that a standard biological part should be well specified and able to be paired with other parts into subassemblies and whole systems. Once the parameters of these parts are determined and standardized, simulation and design of genetic systems will become easier and more reliable. The parts in the Registry are not simply segments of DNA, they are functional units.9 43 Using the Registry, a group of MIT scientists organizes an annual contest called iGEM, the International Genetically Engineered Machine competition. Students can draw from the standard parts that the Registry contains, and perhaps contribute their own creations back to it. What kinds of "genetically engineered machines" do they build? 44 A team of eight undergraduates from the University of Ljubljana in Slovenia-- cheering and leaping onto MIT's Kresge Auditorium stage in green team T-shirts-- won the grand prize earlier this month at the International Genetically Engineered Machine (iGEM) competition at MIT. The group--which received an engraved award in the shape of a large aluminum Lego piece--explored a way to use engineered cells to intercept the body's excessive response to infection, which can lead to a fatal condition called sepsis. The goal of the 380 students on 35 university teams from around the world was to build biological systems the way a contractor would build a house--with a toolkit of standard parts. iGEM participants spent the summer immersed in the growing field of synthetic biology, creating simple systems from interchangeable parts that operate in living cells. Biology, once thought too complicated to be engineered like a clock, computer or microwave oven, has proven to be open to manipulation at the genetic level. The new creations are engineered from snippets of DNA, the molecules that run living cells.10 45 Other iGEM entries have included E. coli bacteria that had been engineered to smell like wintergreen while they were growing and dividing and like bananas when they were finished, a biologically engineered detector that would change color when exposed to unhealthy levels of arsenic in drinking water, a method of programming mouse stem cells to "differentiate" into more specialized cells on command, and the mat of picture-taking bacteria I mentioned earlier. 46 No matter how laudable the arsenic detector or the experimental technique dealing with sepsis, or how cool the idea of banana- scented, picture-taking bacteria, this kind of enterprise will cause some of you to shudder. Professor Drew Endy, one of the pioneers in this field, believes that part of that reaction stems from simple novelty. "A lot of people who were scaring folks in 1975 now have Nobel prizes."11 But even if inchoate, the concerns that synthetic biology arouses stem from more than novelty. There is a deep-seated fear that if we see the natural world of biology as merely another system that we can routinely engineer, we will have extended our technocratic methods into a realm that was only intermittently subject to them in a way that threatens both our structure of self-understanding and our ecosystem. 47 To this, the synthetic biologists respond that we are already engineering nature. In their view, planned, structured, and rationalized genetic engineering poses fewer dangers than poorly understood interventions to produce some specific result in comparative ignorance of the processes we are employing to do so. If the "code" is transparent, subject to review by a peer community, and based on known parts and structures, each identified by a standard genetic "barcode," then the chance of detecting problems and solving them is higher. And while the dangers are real and not to be minimized, the potential benefits--the lives saved because the scarce antimalarial drug can now be manufactured by energetic E. coli or because a cheap test can demonstrate arsenic contamination in a village well--are not to be minimized either. 48 I first became aware of synthetic biology when a number of the scientists working on the Registry of Standard Biological Parts contacted me and my colleague Arti Rai. They did not use these exact words, but their question boiled down to "how does synthetic biology fare in intellectual property's categories, and how can we keep the basics of the science open for all to use?" As you can tell from this book, I find intellectual property fascinating--lamentably so perhaps. Nevertheless, I was depressed by the idea that scientists would have to spend their valuable time trying to work out how to save their discipline from being messed up by the law. Surely it would be better to have them doing, well, science? 49 They have cause for concern. As I mentioned at the beginning of this chapter, synthetic biology shares characteristics of both software and biotechnology. Remember the focus on reducing functions to black boxes. Synthetic biologists are looking for the biological equivalents of switches, valves, and inverters. The more abstractly these are described, the more they come to resemble simple algebraic expressions, replete with "if, then" statements and instructions that resolve to "if x, then y, if not x, then z." 50 If this sounds reminiscent of the discussion of the Turing machine, it should. When the broad rules for software and business methods were enunciated by the federal courts, software was already a developed industry. Even though the rules would have allowed the equivalent of patenting the alphabet, the very maturity of the field minimized the disruption such patents could cause. Of course "prior art" was not always written down. Even when it was recorded, it was sometimes badly handled by the examiners and the courts, partly because they set a very undemanding standard for "ordinary expertise" in the art. Nevertheless, there was still a lot of prior experience and it rendered some of the more basic claims incredible. That is not true in the synthetic biology field. 51 Consider a recent article in Nature, "A universal RNAi-based logic evaluator that operates in mammalian cells."12 The scientists describe their task in terms that should be familiar. "A molecular automaton is an engineered molecular system coupled to a (bio)molecular environment by 'flow of incoming messages and the actions of outgoing messages,' where the incoming messages are processed by an 'intermediate set of elements,' that is, a computer." The article goes on to describe some of the key elements of so-called "Boolean algebra"-- "or," "and," "not," and so on--implemented in living mammalian cells. 52 These inscriptions of Boolean algebra in cells and DNA sequences can be patented. The U.S. Department of Health and Human Services, for example, owns patent number 6,774,222: 53 This invention relates to novel molecular constructs that act as various logic elements, i.e., gates and flip-flops. . . . The basic functional unit of the construct comprises a nucleic acid having at least two protein binding sites that cannot be simultaneously occupied by their cognate binding protein. This basic unit can be assembled in any number of formats providing molecular constructs that act like traditional digital logic elements (flips-flops, gates, inverters, etc.). 54 My colleagues Arti Rai and Sapna Kumar have performed a patent search and found many more patents of similar breadth.13 55 What is the concern? After all, this is cutting-edge science. These seem like novel, nonobvious inventions with considerable utility. The concern is that the change in the rules over patentable subject matter, coupled with the Patent and Trademark Office's handling of both software and biotechnology, will come together so that the patent is not over some particular biological circuit, but, rather, over Boolean algebra itself as implemented by any biotechnological means. It would be as if, right at the beginning of the computer age, we had issued patents over formal logic in software--not over a particular computer design, but over the idea of a computer or a binary circuit itself. 56 "By means of a computer" was the magic phrase that caused the walls around the public domain of algorithms and ideas to crumble. Will "by means of a biological circuit" do the same? And--to repeat the key point--unlike computer science, biotechnology is developing after the hypertrophy of our intellectual property system. We do not have the immune system provided by the established practices and norms, the "prior art," even the community expectations that protected software from the worst effects of patents over the building blocks of science. 57 Following the example of software, the founders of the MIT Registry of Standard Biological Parts had the idea of protecting their discipline from overly expansive intellectual property claims by turning those rights against themselves. Free and open source software developers have created a "commons" using the copyright over the code to impose a license on their software, one that requires subsequent developers to keep the source open and to give improvements back to the software commons--a virtuous cycle. Could the Registry of Standard Biological Parts do the same thing? The software commons rests on a license. But, as I pointed out in the last section, the license depends on an underlying property right. It is because I have automatic copyright over my code that I can tell you "use it according to these terms or you will be violating my copyright." Is there a copyright over the products of synthetic biology? To create one we would have to take the extension of copyright that was required to reach software and stretch it even further. Bill Gates might argue for intellectual property rights over software using the logic of his article in Dr. Dobb's Journal. Will the argument for copyrights over synthetic biological coding be "I need the property right so I can create a commons"? 58 In practice, I think the answer is, and should be, no. Of course, one could think of this as just another type of coding, making expressive choices in a code of A's, C's, G's, and T's, just as a programmer does in Java or C??. Yet, software was already a stretch for copyright law. Synthetic biology strikes me as a subject matter that the courts, Congress, and the Copyright Office are unlikely to want to cram into copyright's already distorted outlines-- particularly given the obvious availability of patent rights. As a matter of conceptual intuition, I think they will see biological subject matter as harder to fit into the categories of original expressive writing. On one level, yes, it is all information, but, on another level, the idea of programming with gene sequences will probably raise hackles that the idea of coding inside a programming language never would. As a normative matter, I think it would be a poor choice to apply copyright to the products of synthetic biology. Attempting to produce a particular open commons, one might enable the kind of hundred-year monopolies over functional objects that the critics of software copyright initially feared. 59 If one wishes to keep the basic ideas and techniques of synthetic biology open for subsequent innovators, there are alternatives to the idea of a synthetic biology open source license. The Registry of Standard Biological Parts or the BioBricks Foundation can simply put all their work into the public domain immediately. (This, indeed, is what they are currently doing.) Such a scheme lacks one key feature of open source software: the right to force subsequent innovators to release their code back into the commons. Yet it would make subsequent patents on the material impossible, because it had already been published. 60 Regardless of the decisions made about the future of synthetic biology, I think its story--coupled to that of software and biotechnology more generally--presents us with an important lesson. I started the chapter with the metaphor of Procrustes's bed. But in the case of software and biotechnology, both the bed--the categories of copyright and patent--and its inhabitants--the new technologies--were stretched. Cracks formed in the boundaries that were supposed to prevent copyright from being applied to functional articles, to prevent patents extending to cover ideas, algorithms, and business methods. 61 Until this point, though the science would have been strange to Jefferson or his contemporaries, the underlying issue would have been familiar. The free-trade, Scottish Enlightenment thinkers of the eighteenth and nineteenth centuries would have scoffed at the idea that business methods or algorithms could be patented, let alone that one could patent the "or," "if-then," and "not" functions of Boolean algebra as implemented by a biological mechanism. The response, presumably, is to fine tune our patent standards--to patent the mousetrap and the corkscrew, not the notion of catching mice or opening bottles by mechanical means. Still less should we allow the patenting of algebra. These are fine points. Later scholarship has added formulae, data, and historical analysis to back up Jefferson's concerns, while never surpassing his prose. As I said at the beginning of the book, if we were to print out the Jefferson Warning and slip it into the shirt pocket of every legislator and regulator, our policy would be remarkably improved. 62 But it is here that the story takes a new turn, something that neither Jefferson nor the philosophers of the Scottish Enlightenment had thought of, something that goes beyond their cautions not to confuse intellectual property with physical property, to keep its boundaries, scope, and term as small as possible while still encouraging the desired innovation. 63 Think of the reaction of the synthetic biologists at MIT. They feared that the basic building blocks of their new discipline could be locked up, slowing the progress of science and research by inserting intellectual property rights at the wrong point in the research cycle. To solve the problem they were led seriously to consider claiming copyright over the products of synthetic biology--to fight overly broad patent rights with a privately constructed copyright commons, to ride the process of legal expansion and turn it to their own ends. As I pointed out earlier, I think the tactic would not fare well in this particular case. But it is an example of a new move in the debate over intellectual property, a new tactic: the attempt to create a privately constructed commons where the public domain created by the state does not give you the freedom that you believe creativity needs in order to thrive. It is to that tactic, and the distributed creativity that it enables, that I will turn to now. Chapter 8: A Creative Commons 1 If you go to the familiar Google search page and click the intimidating link marked "advanced search," you come to a page that gives you more fine-grained control over the framing of your query. Nestled among the choices that allow you to pick your desired language, or exclude raunchy content, is an option that says "usage rights." Click "free to use or share" and then search for "physics textbook" and you can download a 1,200-page physics textbook, copy it, or even print it out and hand it to your students. Search for "Down and Out in the Magic Kingdom" and you will find Cory Doctorow's fabulous science fiction novel, online, in full, for free. His other novels are there too--with the willing connivance of his commercial publisher. Search for "David Byrne, My Fair Lady" and you will be able to download Byrne's song and make copies for your friends. You'll find songs from Gilberto Gil and the Beastie Boys on the same page. No need to pay iTunes or worry about breaking the law. 2 Go to the "advanced" page on Flickr, the popular photo sharing site, and you will find a similar choice marked "Creative Commons License." Check that box and then search for "Duke Chapel" and you will get a selection of beautiful photos of the lovely piece of faux Gothic architecture that sits about three hundred yards from the office where I am writing these words. You can copy those photos, and 66 million others on different subjects, share them with your friends, print them for your wall, and, in some cases, even use them commercially. The same basic tools can be found on a range of specialized search engines with names like OWL Music Search, BlipTV, SpinExpress, and OERCommons. Searching those sites, or just sticking with the advanced options on Google or Yahoo, will get you courses in music theory, moral philosophy, and C++ programming from famous universities; a full-length movie called Teach by Oscar-winning director Davis Guggenheim; and free architectural drawings that can be used to build low-cost housing. At the Wellcome Library, you will find two thousand years of medical images that can be shared freely. Searching for "skeleton" is particularly fun. You can even go to your favorite search engine, type in the title of this book, find a site that will allow you to download it, and send the PDF to a hundred friends, warmly anticipating their rapturous enjoyment. (Better ask them first.) 3 All this copying and sharing and printing sounds illegal, but it is not (at least if you went through the steps I described). And the things you can do with this content do not stop with simply reproducing it, printing it on paper, or sending it by e-mail. Much of it can be changed, customized, remixed--you could rewrite the module of the class and insert your own illustrations, animate the graphs showing calculus in action, morph the photo into something new. If you search for a musician with the unpromising name "Brad Sucks," you will find a Web site bearing the modest subtitle "A one man band with no fans." Brad, it turns out, does not suck and has many fans. What makes him particularly interesting is that he allows those fans, or anyone else for that matter, to remix his music and post their creations online. I am particularly fond of the Matterovermind remix of "Making Me Nervous," but it may not be to your taste. Go to a site called ccMixter and you will find that musicians, famous and obscure, are inviting you to sample and remix their music. Or search Google for Colin Mutchler and listen to a haunting song called "My Life Changed." Mr. Mutchler and a violinist called Cora Beth Bridges whom he had never met created that song together. He posted a song called "My Life" online, giving anyone the freedom to add to it, and she did--"My Life." Changed. 4 On December 15, 2002, in San Francisco, a charitable organization called Creative Commons was launched. (Full disclosure: I have been a proud board member of Creative Commons since its creation.) Creative Commons was the brainchild of Larry Lessig, Hal Abelson, and Eric Eldred. All the works I have just described--and this book itself--are under Creative Commons licenses. The authors and creators of those works have chosen to share it with the world, with you, under generous terms, while reserving certain rights for themselves. They may have allowed you to copy it, but not to alter it--to make derivative works. Or they may have allowed you to use it as you wish, so long as you do so noncommercially. Or they may have given you complete freedom, provided only that you attribute them as the owner of the work. There are a few simple choices and a limited menu of permutations. 5 What makes these licenses unusual is that they can be read by two groups that normal licenses exclude--human beings (rather than just lawyers) and computers. The textbooks, photos, films, and songs have a tasteful little emblem on them marked with a "cc" which, if you click on it, links to a "Commons Deed," a simple one-page explanation of the freedoms you have. There are even icons--a dollar with a slash through it, for example--that make things even clearer. Better still, the reason the search engines could find this material is that the licenses also "tell" search engines exactly what freedoms have been given. Simple "metadata" (a fancy word for tags that computers can read) mark the material with its particular level of freedoms. This is not digital rights management. The license will not try to control your computer, install itself on your hard drive, or break your TV. It is just an expression of the terms under which the author has chosen to release the work. That means that if you search Google or Flickr for "works I am free to share, even commercially," you know you can go into business selling those textbooks, or printing those photos on mugs and T-shirts, so long as you give the author attribution. If you search for "show me works I can build on," you know you are allowed to make what copyright lawyers call "derivative works." 6 The idea behind Creative Commons was simple. As I pointed out in the first chapter, copyright adheres automatically on "fixation." As soon as you lift the pen from the paper, click the shutter, or save the file, the work is copyrighted. No formalities. No need even to use the little symbol (C). Once copyrighted, the work is protected by the full might of the legal system. And the legal system's default setting is that "all rights are reserved" to the author, which means effectively that anyone but the author is forbidden to copy, adapt, or publicly perform the work. This might have been a fine rule for a world in which there were high barriers to publication. The material that was not published was theoretically under an "all rights reserved" regime, but who cared? It was practically inaccessible anyway. After the development of the World Wide Web, all that had changed. Suddenly people and institutions, millions upon millions of them, were putting content online--blogs, photo sites, videologs, podcasts, course materials. It was all just up there. 7 But what could you do with it? You could read it, or look at it, or play it presumably--otherwise why had the author put it up? But could you copy it? Put it on your own site? Include it in a manual used by the whole school district? E-mail it to someone? Translate it into your own language? Quote beyond the boundaries of fair use? Adapt for your own purposes? Take the song and use it for your video? Of course, if you really wanted the work a lot, you could try to contact the author--not always easy. And one by one, we could all contact each other and ask for particular types of permissions for use. If the use was large enough or widespread enough, perhaps we would even think that an individual contract was necessary. Lawyers could be hired and terms hashed out. 8 All this would be fine if the author wished to retain all the rights that copyright gives and grant them only individually, for pay, with lawyers in the room. But what about the authors, the millions upon millions of writers, and photographers and musicians, and filmmakers and bloggers and scholars, who very much want to share their work? The Cora Beth Bridges of the world are never going to write individual letters to the Colin Mutchlers of the world asking for permission to make a derivative work out of "My Life." The person who translated my articles into Spanish or Mandarin, or the people who repost them on their Web sites, or include them in their anthologies might have asked permission if I had not granted it in advance. I doubt though that I would have been contacted by the very talented person who took images from a comic book about fair use that I co-wrote and mashed them up with words from a book by Larry Lessig, and some really nice music from someone none of us had ever met. Without some easy way to give permission in advance, and to do so in a way that human beings and computers, as well as lawyers, can understand, those collaborations will never happen, though all the parties would be delighted if they did. These are losses from "failed sharing"--every bit as real as losses from unauthorized copying, but much less in the public eye. 9 Creative Commons was conceived as a private "hack" to produce a more fine-tuned copyright structure, to replace "all rights reserved" with "some rights reserved" for those who wished to do so. It tried to do for culture what the General Public License had done for software. It made use of the same technologies that had created the issue: the technologies that made fixation of expressive content and its distribution to the world something that people, as well as large concentrations of capital, could do. As a result, it was able to attract a surprising range of support--Jack Valenti of the Motion Picture Association of America and Hillary Rosen of the Recording Industry Association of America, as well as John Perry Barlow of the Grateful Dead, whose attitude toward intellectual property was distinctly less favorable. Why could they all agree? These licenses were not a choice forced on anyone. The author was choosing what to share and under what terms. But that sharing created something different, something new. It was more than a series of isolated actions. The result was the creation of a global "commons" of material that was open to all, provided they adhered to the terms of the licenses. Suddenly it was possible to think of creating a work entirely out of Creative Commons-licensed content--text, photos, movies, music. Your coursebook on music theory, or your documentary on the New York skyline, could combine your own original material with high-quality text, illustrations, photos, video, and music created by strangers. One could imagine entire fields--of open educational content or of open music--in which creators could work without keeping one eye nervously on legal threats or permissions. 10 From one perspective, Creative Commons looks like a simple device for enabling exercise of authorial control, remarkable only for the extremely large number of authors making that choice and the simplicity with which they can do so. From another, it can be seen as re-creating, by private choice and automated licenses, the world of creativity before law had permeated to the finest, most atomic level of science and culture--the world of folk music or 1950s jazz, of jokes and slang and recipes, of Ray Charles's "rewording" of gospel songs, or of Isaac Newton describing himself as "standing on the shoulders of giants" (and not having to pay them royalties). Remember, that is not a world without intellectual property. The cookbook might be copyrighted even if the recipe was not. Folk music makes it to the popular scene and is sold as a copyrighted product. The jazz musician "freezes" a particular version of the improvisation on a communally shared set of musical motifs, records it, and sometimes even claims ownership of it. Newton himself was famously touchy about precedence and attribution, even if not about legal ownership of his ideas. But it is a world in which creativity and innovation proceed on the basis of an extremely large "commons" of material into which it was never imagined that property rights could permeate. 11 For many of us, Creative Commons was conceived of as a second- best solution created by private agreement because the best solution could not be obtained through public law. The best solution would be a return of the formality requirement--a requirement that one at least write the words "James Boyle copyright 2008," for example, in order to get more than 100 years of legal protection backed by "strict liability" and federal criminal law. Those who did not wish to have the legal monopoly could omit the phrase and the work would pass into the public domain, with a period of time during which the author could claim copyright retrospectively if the phrase was omitted by accident. The default position would become freedom and the dead weight losses caused by giving legal monopolies to those who had not asked for them, and did not want them, would disappear. To return to the words of Justice Brandeis that I quoted at the beginning of the book: 12 The general rule of law is, that the noblest of human productions--knowledge, truths ascertained, conceptions, and ideas--become, after voluntary communication to others, free as the air to common use. Upon these incorporeal productions the attribute of property is continued after such communication only in certain classes of cases where public policy has seemed to demand it. 13 Brandeis echoes the Jeffersonian preference for a norm of freedom, with narrowly constrained exceptions only when necessary. That preference means that the commons of which I spoke is a relatively large one--property rights are the exception, not the norm. Of course, many of those who use Creative Commons licenses might disagree with that policy preference and with every idea in this book. They may worship the DMCA or just want a way to get their song or their article out there while retaining some measure of control. That does not matter. The licenses are agnostic. Like a land trust which has a local pro-growth industrialist and a local environmentalist on its board, they permit us to come to a restricted agreement on goals ("make sure this space is available to the public") even when underlying ideologies differ. They do this using those most conservative of tools--property rights and licenses. And yet, if our vision of property is "sole and despotic dominion," these licenses have created something very different--a commons has been made out of private and exclusive rights. 14 My point here is that Creative Commons licenses or the tools of free and open source software--to which I will turn in a moment--represent something more than merely a second-best solution to a poorly chosen rule. They represent a visible example of a type of creativity, of innovation, which has been around for a very long time, but which has reached new salience on the Internet--distributed creativity based around a shared commons of material. 15 FREE AND OPEN SOURCE SOFTWARE 16 In 2007, Clay Shirky, an incisive commentator on networked culture, gave a speech which anyone but a Net aficionado might have found simultaneously romantic and impenetrable. He started by telling the story of a Shinto shrine that has been painstakingly rebuilt to exactly the same plan many times over its 1,300-year life--and which was denied certification as a historic building as a result. Shirky's point? What was remarkable was not the building. It was a community that would continue to build and rebuild the thing for more than a millennium. 17 From there, Shirky shifted to a discussion of his attempt to get AT&T to adopt the high-level programming language Perl--which is released as free and open source software under the General Public License. From its initial creation by Larry Wall in 1987, Perl has been adapted, modified, and developed by an extraordinary range of talented programmers, becoming more powerful and flexible in the process. As Shirky recounts the story, when the AT&T representatives asked "where do you get your support?" Shirky responded, " 'we get our support from a community'--which to them sounded a bit like 'we get our Thursdays from a banana.' " Shirky concluded the speech thus: 18 We have always loved one another. We're human. It's something we're good at. But up until recently, the radius and half-life of that affection has been quite limited. With love alone, you can plan a birthday party. Add coordinating tools and you can write an operating system. In the past, we would do little things for love, but big things required money. Now we can do big things for love.1 19 There are a few people out there for whom "operating systems" and "love" could plausibly coexist in a sentence not constructed by an infinite number of monkeys. For most though, the question is, what could he possibly have meant? 20 The arguments in this book so far have taken as a given the incentives and collective action problems to which intellectual property is a response. Think of Chapter 1 and the economic explanation of "public goods." The fact that it is expensive to do the research to find the right drug, but cheap to manufacture it once it is identified provides a reason to create a legal right of exclusion. In those realms where the innovation would not have happened anyway, the legal right of exclusion gives a power to price above cost, which in turn gives incentives to creators and distributors. So goes the theory. I have discussed the extent to which the logic of enclosure works for the commons of the mind as well as it did for the arable commons, taking into account the effects of an information society and a global Internet. What I have not done is asked whether a global network actually transforms some of our assumptions about how creation happens in a way that reshapes the debate about the need for incentives, at least in certain areas. This, however, is exactly the question that needs to be asked. 21 For anyone interested in the way that networks can enable new collaborative methods of production, the free software movement, and the broader but less political movement that goes under the name of open source software, provide interesting case studies.2 Open source software is released under a series of licenses, the most important being the General Public License (GPL). The GPL specifies that anyone may copy the software, provided the license remains attached and the source code for the software always remains available.3 Users may add to or modify the code, may build on it and incorporate it into their own work, but if they do so, then the new program created is also covered by the GPL. Some people refer to this as the "viral" nature of the license; others find the term offensive.4 The point, however, is that the open quality of the creative enterprise spreads. It is not simply a donation of a program or a work to the public domain, but a continual accretion in which all gain the benefits of the program on pain of agreeing to give their additions and innovations back to the communal project. 22 For the whole structure to work without large-scale centralized coordination, the creation process has to be modular, with units of different sizes and complexities, each requiring slightly different expertise, all of which can be added together to make a grand whole. I can work on the sendmail program, you on the search algorithms. More likely, lots of people try, their efforts are judged by the community, and the best ones are adopted. Under these conditions, this curious mix of Kropotkin and Adam Smith, Richard Dawkins and Richard Stallman, we get distributed production without having to rely on the proprietary exclusion model. The whole enterprise will be much, much, much greater than the sum of the parts. 23 What's more, and this is a truly fascinating twist, when the production process does need more centralized coordination, some governance that guides how the sticky modular bits are put together, it is at least theoretically possible that we can come up with the control system in exactly the same way. In this sense, distributed production is potentially recursive. Governance processes, too, can be assembled through distributed methods on a global network, by people with widely varying motivations, skills, and reserve prices.5 24 The free and open source software movements have produced software that rivals or, some claim, exceeds the capabilities of conventional proprietary, binary-only software.6 Its adoption on the "enterprise level" is impressive, as is the number and enthusiasm of the various technical testaments to its strengths. You have almost certainly used open source software or been its beneficiary. Your favorite Web site or search engine may run on it. If your browser is Firefox, you use it every day. It powers surprising things around you--your ATM or your TiVo. The plane you are flying in may be running it. It just works. 25 Governments have taken notice. The United Kingdom, for example, concluded last year that open source software "will be considered alongside proprietary software and contracts will be awarded on a value-for-money basis." The Office of Government Commerce said open source software is "a viable desktop alternative for the majority of government users" and "can generate significant savings. . . . These trials have proved that open source software is now a real contender alongside proprietary solutions. If commercial companies and other governments are taking it seriously, then so must we."7 Sweden found open source software to be in many cases "equivalent to--or better than--commercial products" and concluded that software procurement "shall evaluate open software as well as commercial solutions, to provide better competition in the market."8 26 What is remarkable is not merely that the software works technically, but that it is an example of widespread, continued, high-quality innovation. The really remarkable thing is that it works socially, as a continuing system, sustained by a network consisting both of volunteers and of individuals employed by companies such as IBM and Google whose software "output" is nevertheless released into the commons. 27 Here, it seems, we have a classic public good: code that can be copied freely and sold or redistributed without paying the creator or creators. This sounds like a tragedy of the commons of the kind that I described in the first three chapters of the book. Obviously, with a nonrival, nonexcludable good like software, this method of production cannot be sustained; there are inadequate incentives to ensure continued production. E pur si muove, as Galileo is apocryphally supposed to have said in the face of Cardinal Bellarmine's certainties: "And yet it moves."9 Or, as Clay Shirky put it, "we get our support from a community." 28 For a fair amount of time, most economists looked at open source software and threw up their hands. From their point of view, "we get our support from a community" did indeed sound like "we get our Thursdays from a banana." There is an old economics joke about the impossibility of finding a twenty-dollar bill lying on a sidewalk. In an efficient market, the money would already have been picked up. (Do not wait for a punch line.) When economists looked at open source software they saw not a single twenty- dollar bill lying implausibly on the sidewalk, but whole bushels of them. Why would anyone work on a project the fruits of which could be appropriated by anyone? Since copyright adheres on fixation--since the computer programmer already has the legal power to exclude others--why would he or she choose to take the extra step of adopting a license that undermined that exclusion? Why would anyone choose to allow others to use and modify the results of their hard work? Why would they care whether the newcomers, in turn, released their contributions back into the commons? 29 The puzzles went beyond the motivations of the people engaging in this particular form of "distributed creativity." How could these implausible contributions be organized? How should we understand this strange form of organization? It is not a company or a government bureaucracy. What could it be? To Richard Epstein, the answer was obvious and pointed to a reason the experiment must inevitably end in failure: 30 The open source movement shares many features with a workers' commune, and is likely to fail for the same reason: it cannot scale up to meet its own successes. To see the long-term difficulty, imagine a commune entirely owned by its original workers who share pro rata in its increases in value. The system might work well in the early days when the workforce remains fixed. But what happens when a given worker wants to quit? Does that worker receive in cash or kind his share of the gain in value during the period of his employment? If not, then the run- up in value during his period of employment will be gobbled up by his successor--a recipe for immense resentment. Yet that danger can be ducked only by creating a capital structure that gives present employees separable interests in either debt or equity in exchange for their contributions to the company. But once that is done, then the worker commune is converted into a traditional company whose shareholders and creditors contain a large fraction of its present and former employers. The bottom line is that idealistic communes cannot last for the long haul.10 31 There are a number of ideas here. First, "idealistic communes cannot last for the long haul." The skepticism about the staying power of idealism sounds plausible today, though there are some relatively prominent counterexamples. The Catholic Church is also a purportedly idealistic institution. It is based on canonical texts that are subject to even more heated arguments about textual interpretation than those which surround the General Public License. It seems to be surviving the long haul quite well. 32 The second reason for doomsaying is provided by the word "commune." The problems Epstein describes are real where tangible property and excludable assets are involved. But is the free and open source community a "commune," holding tangible property in common and excluding the rest of us? Must it worry about how to split up the proceeds if someone leaves because of bad karma? Or is it a community creating and offering to the world the ability to use, for free, nonrival goods that all of us can have, use, and reinterpret as we wish? In that kind of commune, each of us could take all the property the community had created with us when we left and the commune would still be none the poorer. Jefferson was not thinking of software when he talked of the person who lights his taper from mine but does not darken me, but the idea is the same one. Copying software is not like fighting over who owns the scented candles or the VW bus. Does the person who wrote the "kernel" of the operating system resent the person who, much later, writes the code to manage Internet Protocol addresses on a wireless network? Why should he? Now the program does more cool stuff. Both of them can use it. What's to resent? 33 How about idealism? There is indeed a broad debate on the reasons that the system works: Are the motivations those of the gift economy? Is it, as Shirky says, simply the flowering of an innate love that human beings have always had for each other and for sharing, now given new strength by the geographic reach and cooperative techniques the Internet provides? "With love alone, you can plan a birthday party. Add coordinating tools and you can write an operating system." Is this actually a form of potlatch, in which one gains prestige by the extravagance of the resources one "wastes"? Is open source an implicit résumé- builder that pays off in other ways? Is it driven by the species-being, the innate human love of creation that continually drives us to create new things even when homo economicus would be at home in bed, mumbling about public goods problems?11 34 Yochai Benkler and I would argue that these questions are fun to debate but ultimately irrelevant.12 Assume a random distribution of incentive structures in different people, a global network--transmission, information sharing, and copying costs that approach zero--and a modular creation process. With these assumptions, it just does not matter why they do it. In lots of cases, they will do it. One person works for love of the species, another in the hope of a better job, a third for the joy of solving puzzles, and a fourth because he has to solve a particular problem anyway for his own job and loses nothing by making his hack available for all. Each person has their own reserve price, the point at which they say, "Now I will turn off Survivor and go and create something." But on a global network, there are a lot of people, and with numbers that big and information overhead that small, even relatively hard projects will attract motivated and skilled people whose particular reserve price has been crossed. 35 More conventionally, many people write free software because they are paid to do so. Amazingly, IBM now earns more from what it calls "Linux-related revenues" than it does from traditional patent licensing, and IBM is the largest patent holder in the world.13 It has decided that the availability of an open platform, to which many firms and individuals contribute, will actually allow it to sell more of its services, and, for that matter, its hardware. A large group of other companies seem to agree. They like the idea of basing their services, hardware, and added value on a widely adopted "commons." This does not seem like a community in decline. 36 People used to say that collaborative creation could never produce a quality product. That has been shown to be false. So now they say that collaborative creation cannot be sustained because the governance mechanisms will not survive the success of the project. Professor Epstein conjures up a "central committee" from which insiders will be unable to cash out--a nice mixture of communist and capitalist metaphors. All governance systems--including democracies and corporate boards--have problems. But so far as we can tell, those who are influential in the free software and open source governance communities (there is, alas, no "central committee") feel that they are doing very well indeed. In the last resort, when they disagree with decisions that are taken, there is always the possibility of "forking the code," introducing a change to the software that not everyone agrees with, and then letting free choice and market selection converge on the preferred iteration. The free software ecosystem also exhibits diversity. Systems based on GNU-Linux, for example, have distinct "flavors" with names like Ubuntu, Debian, and Slackware, each with passionate adherents and each optimized for a particular concern--beauty, ease of use, technical manipulability. So far, the tradition of "rough consensus and running code" seems to be proving itself empirically as a robust governance system. 37 Why on earth should we care? People have come up with a surprising way to create software. So what? There are at least three reasons we might care. First, it teaches us something about the limitations of conventional economics and the counterintuitive business methods that thrive on networks. Second, it might offer a new tool in our attempt to solve a variety of social problems. Third, and most speculative, it hints at the way that a global communications network can sometimes help move the line between work and play, professional and amateur, individual and community creation, rote production and compensated "hobby." 38 We should pay attention to open source software because it shows us something about business methods in the digital world--indeed in the entire world of "information-based" products, which is coming to include biotechnology. The scale of your network matters. The larger the number of people who use your operating system, make programs for your type of computer, create new levels for your game, or use your device, the better off you are. A single fax machine is a paperweight. Two make up a communications link. Ten million and you have a ubiquitous communications network into which your "paperweight" is now a hugely valuable doorway. 39 This is the strange characteristic of networked goods. The actions of strangers dramatically increase or decrease the usefulness of your good. At each stage the decision of someone else to buy a fax machine increases the value of mine. If I am eating an apple, I am indifferent about whether you are too. But if I have a fax machine then my welfare is actually improved by the decisions of strangers to buy one. The same process works in reverse. Buy a word processing program that becomes unpopular, get "locked in" to using it, and find yourself unable to exchange your work easily with others. Networks matter and increasing the size of the networks continues to add benefits to the individual members. 40 What's true for the users of networks is doubly so for the producers of the goods that create them. From the perspective of a producer of a good that shows strong network effects such as a word processing program or an operating system, the optimal position is to be the company that owns and controls the dominant product on the market. The ownership and control is probably by means of intellectual property rights, which are, after all, the type of property rights one finds on networks. The value of that property depends on those positive and negative network effects. This is the reason Microsoft is worth so much money. The immense investment in time, familiarity, legacy documents, and training that Windows or Word users have provides a strong incentive not to change products. The fact that other users are similarly constrained makes it difficult to manage any change. Even if I change word processor formats and go through the trouble to convert all my documents, I still need to exchange files with you, who are similarly constrained. From a monopolist's point of view, the handcuffs of network effects are indeed golden, though opinions differ about whether or not this is a cause for antitrust action. 41 But if the position that yields the most revenue is that of a monopolist exercising total control, the second-best position may well be that of a company contributing to a large and widely used network based on open standards and, perhaps, open software. The companies that contribute to open source do not have the ability to exercise monopoly control, the right to extract every last cent of value from it. But they do have a different advantage; they get the benefit of all the contributions to the system without having to pay for them. The person who improves an open source program may not work for IBM or Red Hat, but those companies benefit from her addition, just as she does from theirs. The system is designed to continue growing, adding more contributions back into the commons. The users get the benefit of an ever-enlarging network, while the openness of the material diminishes the lock-in effects. Lacking the ability to extract payment for the network good itself--the operating system, say--the companies that participate typically get paid for providing tied goods and services, the value of which increases as the network does. 42 I write a column for the Financial Times, but I lack the fervor of the true enthusiast in the "Great Game of Markets." By themselves, counterintuitive business methods do not make my antennae tingle. But as Larry Lessig and Yochai Benkler have argued, this is something more than just another business method. They point us to the dramatic role that openness--whether in network architecture, software, or content--has had in the success of the Internet. What is going on here is actually a remarkable corrective to the simplistic notion of the tragedy of the commons, a corrective to the Internet Threat storyline and to the dynamics of the second enclosure movement. This commons creates and sustains value, and allows firms and individuals to benefit from it, without depleting the value already created. To appropriate a phrase from Carol Rose, open source teaches us about the comedy of the commons, a way of arranging markets and production that we, with our experience rooted in physical property and its typical characteristics, at first find counterintuitive and bizarre. Which brings us to the next question for open source. Can we use its techniques to solve problems beyond the world of software production? 43 In the language of computer programmers, the issue here is "does it scale?" Can we generalize anything from this limited example? How many types of production, innovation, and research fit into the model I have just described? After all, for many innovations and inventions one needs hardware, capital investment, and large-scale, real-world data collection--stuff, in its infinite recalcitrance and facticity. Maybe the open source model provides a workaround to the individual incentives problem, but that is not the only problem. And how many types of innovation or cultural production are as modular as software? Is open source software a paradigm case of collective innovation that helps us to understand open source software and not much else? 44 Again, I think this is a good question, but it may be the wrong one. My own guess is that an open source method of production is far more common than we realize. "Even before the Internet" (as some of my students have taken to saying portentously), science, law, education, and musical genres all developed in ways that are markedly similar to the model I have described. The marketplace of ideas, the continuous roiling development in thought and norms that our political culture spawns, owes much more to the distributed, nonproprietary model than it does to the special case of commodified innovation that we think about in copyright and patent. Not that copyright and patent are unimportant in the process, but they may well be the exception rather than the norm. Commons-based production of ideas is hardly unfamiliar, after all. 45 In fact, all the mottos of free software development have their counterparts in the theory of democracy and open society; "given enough eyeballs, all bugs are shallow" is merely the most obvious example. Karl Popper would have cheered.14 The importance of open source software is not that it introduces us to a wholly new idea. It is that it makes us see clearly a very old idea. With open source the technology was novel, the production process transparent, and the result of that process was a "product" which outcompeted other products in the marketplace. "How can this have happened? What about the tragedy of the commons?" we asked in puzzlement, coming only slowly to the realization that other examples of commons-based, nonproprietary production were all around us. 46 Still, this does not answer the question of whether the model can scale still further, whether it can be applied to solve problems in other spheres. To answer that question we would need to think more about the modularity of other types of inventions. How much can they be broken down into chunks suitable for distribution among a widespread community? Which forms of innovation have some irreducible need for high capital investment in distinctly nonvirtual components--a particle accelerator or a Phase III drug trial? Again, my guess is that the increasing migration of the sciences toward data- and processing-rich models makes much more of innovation and discovery a potential candidate for the distributed model. Bioinformatics and computational biology, the open source genomics project,15 the BioBricks Foundation I mentioned in the last chapter, the possibility of distributed data scrutiny by lay volunteers16--all of these offer intriguing glances into the potential for the future. Finally, of course, the Internet is one big experiment in, as Benkler puts it, peer-to-peer cultural production.17 47 If these questions are good ones, why are they also the wrong ones? I have given my guesses about the future of the distributed model of innovation. My own utopia has it flourishing alongside a scaled-down, but still powerful, intellectual property regime. Equally plausible scenarios see it as a dead end or as the inevitable victor in the war of productive processes. These are all guesses, however. At the very least, there is some possibility, even hope, that we could have a world in which much more of intellectual and inventive production is free. " 'Free' as in 'free speech,' " Richard Stallman says, not "free as in 'free beer.' "18 But we could hope that much of it would be both free of centralized control and low- or no-cost. When the marginal cost of reproduction is zero, the marginal cost of transmission and storage approaches zero, the process of creation is additive, and much of the labor doesn't charge, the world looks a little different.19 This is at least a possible future, or part of a possible future, and one that we should not foreclose without thinking twice. Yet that is what we are doing. The Database Protection Bills and Directives, which extend intellectual property rights to the layer of facts;20 the efflorescence of software patents;21 the UCITA-led validation of shrinkwrap licenses that bind third parties;22 the Digital Millennium Copyright Act's anticircumvention provisions23--the point of all of these developments is not merely that they make the peer-to-peer model difficult, but that in many cases they rule it out altogether. I will assert this point here, rather than argue for it, but I think it can be (and has been) demonstrated quite convincingly.24 48 The point is, then, that there is a chance that a new (or old, but underrecognized) method of production could flourish in ways that seem truly valuable--valuable to free speech, innovation, scientific discovery, the wallets of consumers, to what William Fisher calls "semiotic democracy,"25 and, perhaps, valuable to the balance between joyful creation and drudgery for hire. True, it is only a chance. True, this theory's scope of operation and sustainability are uncertain. But why would we want to foreclose it? That is what the recent expansions of intellectual property threaten to do. And remember, these expansions were dubious even in a world where we saw little or no possibility of the distributed production model I have described, where discussion of network effects had yet to reach the pages of The New Yorker,26 and where our concerns about the excesses of intellectual property were simply the ones that Jefferson, Madison, and Macaulay gave us so long ago. 49 LEARNING FROM THE SHARING ECONOMY 50 Accept for the sake of argument that the free software community actually works, actually produces high-quality products capable of competing in the market with proprietary alternatives. Concede for a moment that the adoption of Creative Commons licenses shows there are millions of creators out there who want to share their works with others. Many of those creators even want to allow the world to build on their material. Indeed, let us concede that the whole history of the Web, from Wikipedia to the obsessive and usefully detailed sites created on everything from Vikings to shoe polishes, shows a desire to share one's knowledge, to build on the work of others one has never met. These efforts are remarkably varied. Some are ultimately aimed at profit--even if their results are free. Think of IBM's open source initiatives or musicians who release Creative Commons- licensed work in order to get more club gigs. Some are provided as a volunteer act of benevolence or civic duty, even if they "compete" with expensive proprietary alternatives. Think of Wikipedia or MIT's OpenCourseWare. When the infrastructure for this collaboration does not exist, it gets assembled--and quickly. Both the GPL and Creative Commons are examples. Accept all of this. So what? 51 Lesson number one comes from the nonprofit activities--everything from Wikipedia to Web sites created by enthusiasts. People like to create and wish to share. In many cases they will do so without financial reward. A surprising amount of useful, creative, or expressive activity is generated without any financial incentive at all. 52 Should this cause us to throw out the economic case for copyrights? No. But it should lead us to reassess it. As I explained in Chapter 1, copyright provides an incentive for two distinct activities. First, it offers an incentive to create the work in the first place. The author of Windows for Dummies or Harry Potter gets a right to exclude others from copying the work, a right that he or she can sell in the marketplace. The goal is to offer a financial reason to devote time to this particular creative activity. It is this incentive that is most often cited when attempting to persuade policy makers to expand protection. Second, it offers an incentive to distribute the work--to typeset and print large quantities of the work and to sell it to bookstores, or to broadcast it, or put it on movie screens. 53 Each medium is economically different, of course. The economics of the feature film are different from those of the book, the magazine, or the operating system. Thus, we have never had very good figures on the relative importance of these incentives. We can only guess at how much of the incentive from copyright goes to encouraging creation and how much to distribution. Until recently, most types of distribution demanded higher levels of capital. The industry structure that resulted often consisted of creators who worked as wage or contract labor for distributors--either never acquiring copyright in their work in the first place or immediately transferring that copyright to their employers. Because distribution was expensive, our experience with material generated for fun or out of a love of sharing was an essentially private and local one. You might have a neighbor's photocopied sheet of baking recipes that worked well at high altitudes, or of fishing techniques that worked well on a particular lake, a song that a friend created for a special occasion, or a short story you wrote for your kids--and then typed up for them to tell to theirs. Financial incentives were not needed to encourage the creation of the work, but the cost of distribution dramatically limited its dissemination. 54 The single most dramatic thing that the Web has done by lowering the cost of communication and distribution, at the same moment that other electronic tools lowered the cost of production, is to make this local and private activity a global and public one. Someone, somewhere, will have written the guide to fishing on that lake, baking at that altitude, washing windows, or treating stings from Portuguese man-of-war jellyfish. Someone will have taken a photo of the Duke Chapel or explained the history, economics, and chemistry of shoe polish or distilling. Someone might even have created a great class on music theory or C???programming. Someone will have written a handy little program to manage DNS requests on a local network. Bizarrely, at least as far as the economists were concerned, these people all wanted to share what they had made. Because of the genius of search engines, and the implicit peer-review function that those engines deduce from patterns of links to pages, I can find that material when I need it. 55 True, much of the material on the Web is inane or insane, confused, badly written, tendentious, and inaccurate. (It should be noted that this is hardly a problem confined to the Web or volunteer-generated material. Personally, I would not want People magazine or Fox News in a time capsule to represent my civilization. But some of the material on the Web is clearly worse.) Yes, Wikipedia is occasionally inaccurate--though in one test in Nature it stacked up well against the Encyclopedia Britannica, and it is obviously much more encyclopedic in its coverage. But all of this misses the point. 56 Consider how your expectations about information retrieval have changed in the last fifteen years. We now simply assume that questions about a piece of architecture, a bit of local history, a recipe, or the true author of a song can all be answered within seconds. We have forgotten what it is like to be routinely in ignorance because of the unavailability of some piece of information. One podcaster I talked to called it being a member of "the right-click generation": "When I am walking around and I see a building, I almost feel as though I ought to be able to 'right click' it and have the architect's name pop up." Consider that it now seems normal for a gay Iraqi man in Baghdad to have a blog that offers hundreds of thousands of readers around the world a literate and touching account of the American occupation from a perspective entirely different from that provided by the mainstream press.27 We think it normal for a person of moderate resources to be able to speak to the world from a war zone, whether or not he is affiliated with a newspaper or credentialed by a corporation. 57 These examples are not the end of the process. Our methods of sorting, ranking, and verifying the material generated are still evolving. They may improve even beyond this point. We are only fifteen years into this particular experiment, after all. And a huge amount of this material is produced by our fellow citizens without the profit motive. 58 Does this mean that we no longer need copyright or patent protection to encourage the production and distribution of creative work? No. The fishing tips are great, but I still might buy a handsomely illustrated guide to take on the lake with me or, even better, just stay at home and read A River Runs Through It. The New Yorker, and not a sheaf of printouts from the Web, still sits on my coffee table, though much of the high-quality content I read comes to me online, for free, from strangers who are generating it for pleasure, not profit, or who profit from open sharing, not closed control. The online blogosphere provides a vital counterpoint to mainstream media, but it exists in a symbiotic--some would say parasitic--relationship with that media and the network of professional news gatherers for which it pays. Some of the most interesting open source production methods actually rely on copyright. Even if they did not, open source production would not suffice to run our pharmaceutical industry (though it might help with certain stages of the drug discovery process). 59 Still, just as it would be silly to dismiss the importance of intellectual property based on our experience of blogs and Wikipedia and open source software, it would be equally silly to underestimate what the Web has taught us. The Web has enabled an astonishing flowering of communication and expression, an astounding democratization of creativity. We have learned just how strong, and how useful, is the human urge to express, communicate, invent, and create--provided the barriers to sharing are lowered. These are the very things that copyright and patent are supposed to encourage. For us to portray the Web--as the Internet Threat story line does--as predominantly a threat to creativity is simply perverse. For us to base our policies only on that notion would be a tragedy. We might end up stultifying one of the greatest explosions of human creativity the world has ever seen by treating it as an unimportant marginal case and instead designing our rules around the production processes of commercial culture in the late twentieth century. 60 The shape of our copyright and to a lesser extent our patent system comes from a world in which almost all large-scale distribution was an expensive, capital-intensive enterprise. The roles of gatekeeper and financier, producer and assembler, distributor and advertiser, tended naturally to coalesce into vertically integrated firms or symbiotic commercial partnerships. Those firms were presumed to be the proxy for the public interest when it came to intellectual property policy. Who would know better than they what was needed? Occasionally, device manufacturers would provide a counterweight--as in the Sony case--where the defense of a particular "consumer freedom" actually created a market for a complementary product. Artists and authors might be trotted out as appealing spokespersons, though the laws that were made only sporadically reflected their economic and artistic interests. Librarians and educational institutions had influence at the edges. Most of the time, though, it was the assemblers and distributors of content whose voices and assumptions about markets would be heard. 61 Out of this pattern of habit and influence, and out of much deeper notions about authorship and invention that I have explored elsewhere, developed an ideology, a worldview. Call it maximalism. Its proponents sincerely believed in it and pursued it even when it did not make economic sense. (Think how lucky the movie industry is that it lost the Sony case.) It has been the subject of this book. Its tenets are that intellectual property is just like physical property, that rights need to increase proportionately as copying costs decrease, and that, in general, increasing levels of intellectual property protection will yield increasing levels of innovation. Despite its defense of ever-increasing government-granted monopolies, this ideology cloaks itself in the rhetoric of free markets. The bumbling state, whose interventions in the economy normally spell disaster, turns into a scalpel-wielding genius when its monopolies and subsidies are provided through intellectual property rights rather than regulatory fiat. Above all, this way of seeing the world minimizes the importance of creativity, expression, and distribution that takes place outside its framework and ignores or plays down the importance of the input side of the equation--the need to focus on the material from which culture and science are made, as well as the protected expression and inventions made from that raw material. 62 This process was not--let me stress--was not a simple process of economic determinism or industry conspiracy. Anyone who claims that is the thesis of this book simply has not read it. (Reviewers beware.) Let us start with economic determinism. It was not a situation in which the law mechanistically recorded the interests of the most economically important industries in the area. This was the creation of a worldview, not the steely- eyed calculation of profit and loss. Not only did many of the rules we ended up with make no sense from the point of view of some of the largest economic players in the area--think of the device manufacturers, the search engines, and so on--they frequently made no sense from the perspective of those proposing them. Attempting to twist the law to make it illegal for technology to interfere with your old business method is frequently bad for the industry seeking the protection, as well as for the technology, the market, and the wider society. Since this worldview makes incumbents systematically blind to profit- making opportunities that could be secured by greater openness, rather than greater control, it actually disables them from pursuing some of the most promising methods by which they could have made money for their shareholders. Again, the chapter on the Sony decision offers a salutary example. 63 Economic determinism does not explain the rules we have. Neither are those rules simply a result of the manipulation of elected officials by incumbent industries through crafty campaign contributions and distorted evidence (though to be sure, there was a lot of that as well). Many of the people who put forward this worldview--both lobbyists and lobbied--sincerely believe that more rights will always lead to more innovation, that all property rights are the same, that we do not need to think about both the input and output sides of the equation, that cheaper copying techniques automatically require greater protections, and so on. 64 What of the modest suggestions I put forward here? We could sum them up thus: do not apply identical assumptions to physical and intellectual property. Focus on both the inputs to and the outputs of the creative process; protecting the latter may increase the cost of the former. Look both at the role of the public domain and the commons of cultural and scientific material and at the need to provide incentives for creativity and distribution through exclusive rights. More rights will not automatically produce more innovation. Indeed, we should confine rights as narrowly as possible while still providing the desired result. Look at the empirical evidence before and after increasing the level of protection. Pay attention to the benefits as well as the costs of the new technologies and the flowering of creativity they enable. 65 To me, these points seem bland, boring, obvious--verging on tautology or pablum. To many believers in the worldview I have described, they are either straightforward heresy or a smokescreen for some real, underlying agenda--which is identified as communism, anarchism, or, somewhat confusingly, both. 66 This account smacks of exaggeration, I know. How could things be so one-sided? The best answer I can give came from a question I was asked at a recent conference. The questioner pointed out politely that it was unlikely that the policy-making process would ignore such a fundamental and obvious set of points--points that I myself observed had been well understood for hundreds of years. I had used many examples of intellectual property rights being extended--in length, breadth, scope. Why had I not spoken, he asked, of all the times over the last fifty years when intellectual property rights had been weakened, curtailed, shortened? Since human beings were fallible, surely there were occasions when the length of a copyright or patent term had proved to be too long, or the scope of a right too large, and the rights had been narrowed appropriately by legislation. Why did I not cite any of these? The answer is simple. To the best of my knowledge, there are none. Legislatively, intellectual property rights have moved only in one direction--outward. (Court decisions present a more complex picture, as the previous chapter's discussion of software copyrights and business method patents shows.) 67 What are the odds that the costs of new technologies are always greater than their benefits as far as intellectual property rights holders are concerned? This pattern is not a matter of policies carefully crafted around the evidence. It is the fossil record of fifty years of maximalism. If I lean toward the other side of the story it is not because I am a foe of intellectual property. It is because I believe our policies have become fundamentally unbalanced--unbalanced in ways that actually blind us to what is going on in the world of creativity. 68 We are living through an existence-proof that there are other methods of generating innovation, expression, and creativity than the proprietary, exclusionary model of sole control. True, these methods existed before. Yet they tended to be local or invisible or both. The Internet has shown conclusively and visibly that--at least in certain sectors--we can have a global flowering of creativity, innovation, and information sharing in which intellectual property rights function in a very different way than under the standard model of proprietary control. In some cases, intellectual property rights were simply irrelevant--much of the information sharing and indexing on the Web falls within this category. In some cases they were used to prevent exclusivity. Think of Creative Commons or the General Public License. In some, they were actually impediments. Software patents, for example, have a negative effect on open source software development--one that policy makers are only now slowly beginning to acknowledge. 69 It is important not to overstate how far the sharing economy can get us. It might help to cut the costs of early-stage drug development, as the Tropical Disease Initiative attempts to do for neglected diseases. It will not generate a Phase III drug trial or bring a drug to market. Sharing methods might be used to generate cult movies such as Star Wreck: In the Pirkinning, which was created using techniques borrowed from open source software and is available under a Creative Commons license. They will not produce a mammoth blockbuster like Ben Hur, or Waterworld for that matter--results that will generate mixed feelings. So there are real limitations to the processes I describe. 70 But even acknowledging those limitations, it is fair to say that one of the most striking events to occur during our lifetimes is the transformation wrought by the Web, a transformation that is partly driven by the extraordinary explosion of nonproprietary creativity and sharing across digital networks. The cultural expectation that a web of expression and information will just be there--whatever subject we are discussing--is a fundamental one, the one that in some sense separates us from our children. With this as a background it is both bizarre and perverse that we choose to concentrate our policy making only on maintaining the business methods of the last century, only on the story line of the Internet Threat, only on the dangers that the technology poses to creativity (and it does pose some) and never on the benefits. 71 What would it mean to pay attention to the changes I have described? It would mean assessing the impact of rules on both proprietary and nonproprietary production. For example, if the introduction of a broad regime of software patents would render open source software development more difficult (because individual contributors cannot afford to do a patent search on every piece of code they contribute), then this should be reflected as a cost of software patents, to be balanced against whatever benefits the system brought. A method for encouraging innovation might, in fact, inhibit one form of it. 72 Paying attention to the last ten years means we need to realize that nonproprietary, distributed production is not the poor relation of traditional proprietary, hierarchically organized production. This is no hippy lovefest. It is the business method on which IBM has staked billions of dollars; the method of cultural production that generates much of the information each of us uses every day. It is just as deserving of respect and the solicitude of policy makers as the more familiar methods pursued by the film studios and proprietary software companies. Losses due to sharing that failed because of artificially erected legal barriers are every bit as real as losses that come about because of illicit copying. Yet our attention goes entirely to the latter. 73 The main thrust of the argument here is still firmly within the Jeffersonian, Scottish Enlightenment tradition. Jefferson does not wish to give the patent to Oliver Evans because he believes the invention will be (and has been) generated anyway without the granting of an intellectual property right and that there are sufficient information retrieval methods to have practical access to it. In this case, the information retrieval method is not Google. It is a polymath genius combing his library in Monticello for references to Persian irrigation methods. The "embarrassment" caused by the unnecessary patent is added expense and bureaucracy in agriculture and impediments to further innovators, not the undermining of open source software. But it is the same principle of cautious minimalism, the same belief that much innovation goes on without proprietary control and that intellectual property rights are the exception, not the rule. When Benjamin Franklin, a man who surely deserved patents under even the most stringent set of tests, chooses to forgo them because he has secured so much benefit from the contributions of others, he expresses Shirky's norm nicely. 74 Indeed, Jefferson's optimism depends partly on a view of information sharing that captures beautifully the attitudes of the generation that built the Web. The letter that I discussed in Chapter 2 was widely cited for precisely this reason. Remember these lines? 75 That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. 76 What could encapsulate better the process by which information spreads on a global network? What could more elegantly state the norms of the "information wants to be free" generation? (Though those who quoted him conveniently omitted the portions of his analysis where he concedes that there are cases where intellectual property rights may be necessary and desirable.) 77 In some ways, then, the explosion of nonproprietary and, in many cases, noncommercial creativity and information sharing is simply the vindication of Jefferson's comparison of ideas with "fire . . . expansible over all space." The Web makes the simile a reality and puts an exclamation point at the end of the Jefferson Warning. All the more reason to pay attention to it. But the creative commons I described here goes further. It forces us to reconceptualize a form of life, a method of production, and a means of social organization that we used to relegate to the private world of informal sharing and collaboration. Denied a commons by bad intellectual property rules, we can sometimes build our own--which may in some ways do even more for us than the zone of free trade, free thought, and free action that Jefferson wished to protect. 78 Does all this mean that the Jefferson Warning is no longer necessary? Can we mitigate the negative effects of intellectual property expansion through a series of privately constructed commons? The answers to those questions are, respectively, "no" and "sometimes." Think of the story of retrospectively extended copyright and orphan works. In many cases the problem with our intellectual property rights is that they create barriers to sharing--without producing an incentive in return--in ways that can never be solved through private agreement. Twentieth century culture will largely remain off-limits for digitization, reproduction, adaptation, and translation. No series of private contracts or licenses can fix the problem because the relevant parties are not in the room and might not agree if they were. 79 Even when the parties are available and agree to share, the benefits may not flow to all equally. Beset by a multitude of vague patents of questionable worth and uncertain scope, large information technology firms routinely create patent pools. IBM tosses in thousands of patents, so does Hewlett or Dell. Each agrees not to sue the other. This is great for the established companies; they can proceed without fear of legal action from the landmine patents that litter the technological landscape. As far as the participants are concerned, the patent pool is almost like the public domain--but a privatized public domain, a park that only residents may enter. But what about the start up company that does not have the thousands of patents necessary for entry? They are not in as happy a situation. The patent pool fixes the problem of poor patent quality and unclear scope--one that Jefferson was worrying about 200 years ago. But it fixes it only for the dominant firms, hurting competition in the process. 80 Attempts to form a commons may also backfire. The coordination problems are legion. There are difficulties of compatibility in licenses and the process, no matter how easy, still imposes transaction costs. Nevertheless, with all of these qualifications, the idea of the privately created commons is an important addition to the world view that Jefferson provided, a new tool in our attempt to craft a working system of innovation and culture. No one who looks at the Web can doubt the power of distributed, and frequently uncompensated, creativity in constructing remarkable reference works, operating systems, cultural conversations, even libraries of images and music. Some of that innovation happens largely outside of the world of intellectual property. Some of it happens in privately created areas of sharing that use property rights and open, sometimes even machine-readable, licenses to create a commons on which others can build. The world of creativity and its methods is wider than we had thought. That is one of the vital and exciting lessons the Internet teaches us; unfortunately, the only one our policy makers seem to hear is "cheaper copying means more piracy." Chapter 9: An Evidence-Free Zone 1 Perhaps some of the arguments in this book have convinced you. Perhaps it is a mistake to think of intellectual property in the same way we think of physical property. Perhaps limitations and exceptions to those rights are as important as the rights themselves. Perhaps the public domain has a vital and tragically neglected role to play in innovation and culture. Perhaps relentlessly expanding property rights will not automatically bring us increased innovation in science and culture. Perhaps the second enclosure movement is more troubling than the first. Perhaps it is unwise to extend copyright again and again, and to do so retrospectively, locking up most of twentieth-century culture in order to protect the tiny fragment of it that is still commercially available. Perhaps technological improvements bring both benefits and costs to existing rights holders--both of which should be considered when setting policy. Perhaps we need a vigorous set of internal limitations and exceptions within copyright, or control over content will inevitably become control over the medium of transmission. Perhaps the Internet should make us think seriously about the power of nonproprietary and distributed production. 2 Saying all this gives us some guidance in how we should think. It points out certain patterns of error. But its prescriptions are not simple. Precisely because it is not a rejection of intellectual property rights, but rather a claim that they only work well through a process of consciously balancing openness and control, public domain and private right, it still leaves open the question of where that point of balance is and how to strike it. 3 In this chapter I want to offer a suggestion that in any other field would be stunningly obvious, boring even, but in the funhouse mirror of intellectual property appears revolutionary. We should make our policy based on empirical evidence of its likely effects and there should be a formal requirement of empirical reconsideration of those policies after they have been implemented to see if they are working. Why is this a good idea? 4 Imagine a process of reviewing prescription drugs that goes like this: representatives from the drug company come to the regulators and argue that their drug works well and should be approved. They have no evidence of this beyond a few anecdotes about people who want to take it and perhaps some very simple models of how the drug might affect the human body. The drug is approved. No trials, no empirical evidence of any kind, no follow-up. Or imagine a process of making environmental regulations in which there were no data, and no attempts to gather data, about the effects of the particular pollutants being studied. Even the harshest critics of regulation would admit we generally do better than this. But this is often the way we make intellectual property policy. 5 So how do we decide the ground rules of the information age? Representatives of interested industries come to regulators and ask for another heaping slice of monopoly rent in the form of an intellectual property right. They have doom-laden predictions, they have anecdotes, carefully selected to pluck the heartstrings of legislators, they have celebrities who testify--often incoherently, but with palpable charisma--and they have very, very simple economic models. The basic economic model here is "If you give me a larger right, I will have a larger incentive to innovate. Thus the bigger the rights, the more innovation we will get. Right?" 6 As I have tried to show here using the words of Jefferson and Macaulay and examples such as term extension, software copyrights, and garage door openers, this logic is fallacious. Even without data, the "more is better" idea is obviously flawed. Copyrighting the alphabet will not produce more books. Patenting E=?mc2 will not yield more scientific innovation. Intellectual property creates barriers to, as well as incentives toward, innovation. Jefferson agonized over the issue of when the benefits exceed the costs of a new right. "I know well the difficulty of drawing a line between the things which are worth to the public the embarrassment of an exclusive patent, and those which are not." It is not clear that contemporary policy makers approach issues with anything like the same sophistication or humility. But it would be an equal mistake to conclude, as some do, that expansions of intellectual property are never justified. Extensions of rights can help or hurt, but without economic evidence beforehand and review afterward, we will never know. This point should be obvious, banal, even deeply boring, but sadly it is not. 7 From Jefferson and Macaulay and Adam Smith, I derived a second point. In the absence of evidence on either side, the presumption should be against creating a new, legalized monopoly. The burden of proof should lie on those who claim, in any particular case, that the state should step in to stop competition, outlaw copying, proscribe technology, or restrict speech. They have to show us that the existing protection is not enough. But this presumption is a second-best solution and the empirical emptiness of the debates frustrating. 8 This makes an occasion where there is some evidence a time for celebration. What we need is a test case in which one country adopts the proposed new intellectual property right and another similarly situated country does not, and we can assess how they are both doing after a number of years. 9 There is such a case. It is the "database right." 10 OWNING FACTS? 11 Europe adopted a Database Directive in 1996 which gave a high level of copyright protection to databases and conferred a new "sui generis" database right even on unoriginal compilations of facts. In the United States, by contrast, in a 1991 case called Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991), the Supreme Court made it clear that unoriginal compilations of facts are not copyrightable. 12 What does all this mean? Take the phone directory--that was the product at issue in the Feist case. A white pages directory is a database of names and numbers, compiled in alphabetical order by name. Does anyone have an intellectual property right over it? Not the particular dog-eared directory lying next to your phone. Does the phone company that compiled it own the facts, the numbers inside that directory? Could they forbid me from copying them, adding others from surrounding areas, and issuing a competing directory that I believed consumers would find more valuable? This was an important issue for Feist because it went to the heart of their business. They issued regional telephone directories, combining records from multiple phone companies. In this case, all the other companies in the region agreed to license their data to Feist. Rural did not, so Feist copied the information, checked as many entries as possible, adding addresses to some of the listings, and published the combined result. Rural sued and lost. The Supreme Court declared that mere alphabetical listings and other unoriginal assemblies of data cannot be copyrighted. 13 It may seem unfair that much of the fruit of the compiler's labor may be used by others without compensation. As Justice Brennan has correctly observed, however, this is not "some unforeseen byproduct of a statutory scheme." It is, rather, "the essence of copyright," and a constitutional requirement. The primary objective of copyright is not to reward the labor of authors, but "to promote the Progress of Science and useful Arts." To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This principle, known as the idea/expression or fact/expression dichotomy, applies to all works of authorship. As applied to a factual compilation, assuming the absence of original written expression, only the compiler's selection and arrangement may be protected; the raw facts may be copied at will. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art.1 14 Feist was not as revolutionary as some critics claimed it to be. Most of the appeals courts in the United States had long held this to be the case. As the Court pointed out in the passage above, it is a fundamental tenet of the U.S. intellectual property system that neither facts nor ideas can be owned. Feist merely reiterated that point clearly and stressed that it was not just a policy choice, it was a constitutional requirement--a limit imposed by the Constitution's grant of power to Congress to make copyright and patent laws. 15 Daily politics cares little for the limitations imposed by constitutions or for the structural principle the Court describes--that we should leave facts free for others to build upon. Since 1991, a few database companies have lobbied the Congress strenuously and continuously to create a special database right over facts. Interestingly, apart from academics, scientists, and civil libertarians, many database companies, and even those well-known property haters, the U.S. Chamber of Commerce, oppose the creation of such a right. They believe that database providers can adequately protect themselves with contracts or technical means such as passwords, can rely on providing tied services, and so on. Moreover, they argue that strong database protection may make it harder to generate databases in the first place; the facts you need may be locked up. We need to focus on the inputs as well as the outputs of the process--a point I have tried to make throughout this book. The pressure to create a new right continues, however, aided by cries that the United States must "harmonize" with Europe, where, you will remember, compilations of facts are strongly protected by intellectual property rights, even if their arrangement is unoriginal. 16 So here we have our natural experiment. One major economy rejects such protection and resists pressure to create a new right. A different major economic region, at a comparable level of development, institutes the right with the explicit claim that it will help to produce new databases and make that segment of the economy more competitive. Presumably government economists in the United States and the European Union have been hard at work ever since, seeing if the right actually worked? Well, not exactly. 17 Despite the fact that the European Commission has a legal obligation to review the Database Directive for its effects on competition, it was more than three years late issuing its report. At first, during the review process, no attention was paid to the actual evidence of whether the Directive helps or hurts the European Union, or whether the database industry in the United States has collapsed or flourished. That is a shame, because the evidence was there and it was fairly shocking. Yet finally, at the end of the process, the Commission did turn to the evidence, as I will recount, and came to a remarkable conclusion--which was promptly stifled for political reasons. But we are getting ahead of ourselves. 18 How do we frame the empirical inquiry? Intellectual property rights allow the creation of state-backed monopolies, and "the general tendency of monopolies," as Macaulay pointed out, is "to make articles scarce, to make them dear, and to make them bad." Monopolies are an evil, but they must sometimes be accepted when they are necessary to the production of some good, some particular social goal. In this case, the "evil" is obviously going to be an increase in the price of databases and the legal ability to exclude competitors from their use--that, after all, is the point of granting the new right. This right of exclusion may then have dynamic effects, hampering the ability of subsequent innovators to build on what went before. The "good" is that we are supposed to get lots of new databases, databases that we would not have had but for the existence of the database right. 19 If the database right were working, we would expect positive answers to three crucial questions. First, has the European database industry's rate of growth increased since 1996, while the U.S. database industry has languished? (The drop-off in the U.S. database industry ought to be particularly severe after 1991 if the proponents of database protection are correct; they argued the Feist case was a change in current law and a great surprise to the industry.) 20 Second, are the principal beneficiaries of the database right in Europe producing databases they would not have produced otherwise? Obviously, if a society is handing over a database right for a database that would have been created anyway, it is overpaying--needlessly increasing prices for consumers and burdens for competitors. This goes to the design of the right--has it been crafted too broadly, so that it is not being targeted to those areas where it is needed to encourage innovation? 21 Third, and this one is harder to judge, is the new right promoting innovation and competition rather than stifling it? For example, if the existence of the right allowed a one-time surge of newcomers to the market who then use their rights to discourage new entrants, or if we promoted some increase in databases but made scientific aggregation of large amounts of data harder overall, then the database right might actually be stifling the innovation it is designed to foment. 22 Those are the three questions that any review of the Database Directive must answer. But we have preliminary answers to those three questions and they are either strongly negative or extremely doubtful. 23 Are database rights necessary for a thriving database industry? The answer appears to be no. In the United States, the database industry has grown more than twenty-five-fold since 1979 and--contrary to those who paint the Feist case as a revolution--for that entire period, in most of the United States, it was clear that unoriginal databases were not covered by copyright. The figures are even more interesting in the legal database market. The two major proponents of database protection in the United States are Reed Elsevier, the owner of Lexis, and Thomson Publishing, the owner of Westlaw. Fascinatingly, both companies made their key acquisitions in the U.S. legal database market after the Feist decision, at which point no one could have thought unoriginal databases were copyrightable. This seems to be some evidence that they believed they could make money even without a database right. How? In the old-fashioned way: competing on features, accuracy, tied services, making users pay for entry to the database, and so on. 24 If those companies believed there were profits to be made, they were right. Jason Gelman, a former Duke student, pointed out in a recent paper that Thomson's legal regulatory division had a profit margin of over 26 percent for the first quarter of 2004. Reed Elsevier's 2003 profit margin for LexisNexis was 22.8 percent. Both profit margins were significantly higher than the company average and both were earned primarily in the $6 billion U.S. legal database market, a market which is thriving without strong intellectual property protection over databases. (First rule of thumb for regulators: when someone with a profit margin over 20 percent asks you for additional monopoly protection, pause before agreeing.) 25 What about Europe? There is some good news for the proponents of database protection. As Hugenholtz, Maurer, and Onsrud point out in a nice article in Science magazine, there was a sharp, one- time spike in the number of companies entering the European database market immediately following the implementation of the Directive in member states.2 Yet their work, and "Across Two Worlds,"3 a fascinating study by Maurer, suggests that the rate of entry then fell back to levels similar to those before the directive. Maurer's analysis shows that the attrition rate was also very high in some European markets in the period following the passage of the directive--even with the new right, many companies dropped out. 26 At the end of the day, the British database industry--the strongest performer in Europe--added about two hundred databases in the three years immediately after the implementation of the directive. In France, there was little net change in the number of databases and the number of providers fell sharply. In Germany, the industry added nearly three hundred databases immediately following the directive--a remarkable surge--about two hundred of which rapidly disappeared. During the same period, the U.S. industry added about nine hundred databases. Bottom line? Europe's industry did get a one-time boost and some of those firms have stayed in the market; that is a benefit, though a costly one. But database growth rates have gone back to predirective levels, while the anticompetitive costs of database protection are now a permanent fixture of the European landscape. The United States, by contrast, gets a nice steady growth rate in databases without paying the monopoly cost. (Second rule of thumb for regulators: Do no harm! Do not create rights without strong evidence that the incentive effect is worth the anticompetitive cost.) 27 Now the second question. Is the Database Directive encouraging the production of databases we would not have gotten otherwise? Here the evidence is clear and disturbing. Again, Hugenholtz et al. point out that the majority of cases brought under the directive have been about databases that would have been created anyway--telephone numbers, television schedules, concert times. A review of more recent cases reveals the same pattern. These databases are inevitably generated by the operation of the business in question and cannot be independently compiled by a competitor. The database right simply serves to limit competition in the provision of the information. Recently, the European Court of Justice implicitly underscored this point in a series of cases concerning football scores, horse racing results, and so on. Rejecting a protectionist and one-sided opinion from its Advocate General, the court ruled that the mere running of a business which generates data does not count as "substantial investment" sufficient to trigger the database right. It would be nice to think that this is the beginning of some skepticism about the reach of the directive. Yet the court provides little discussion of the economic reasons behind its interpretation; the analysis is merely semantic and definitional, a sharp contrast to its competition decisions. 28 So what kinds of creations are being generated by this bold new right? The answer is somewhere between bathos and pathos. Here are some of the wonderful "databases" that people found it worthwhile litigating over: a Web site consisting of a collection of 259 hyperlinks to "parenting resources," a collection of poems, an assortment of advertisements, headings referring to local news, and charts of popular music. The sad list goes on and on. The European Commission might ask itself whether these are really the kind of "databases" that we need a legal monopoly to encourage and that we want to tie up judicial resources protecting. The point that many more such factual resources can be found online in the United States without any legalized database protection also seems worthy of note. At the very least, the evidence indicates that the right is drawn much too broadly and triggered too easily in ways that produce litigation but little social benefit. 29 Now, in one sense, these lawsuits over trivial collections of hyperlinks and headlines might be seen as irrelevant. They may indicate we are handing out rights unnecessarily--did we really need a legal monopoly, and court involvement, to get someone to compile hyperlinks on a Web page? But it is hard to see social harm. As with the patents over "sealed crustless" peanut butter sandwiches or "methods of swinging on a swing," we may shake our heads at the stupidity of the system, but if the problems consist only of trivial creations, at least we are not likely to grieve because some vital piece of information was locked up. But we should not be so quick to declare such examples irrelevant. They tend to show that the system for drawing the boundaries of the right is broken--and that is of general concern, even if the issue at hand is not. 30 Finally, is the database right encouraging scientific innovation or hurting it? Here the evidence is merely suggestive. Scientists have claimed that the European database right, together with the perverse failure of European governments to take advantage of the limited scientific research exceptions allowed by the directive, have made it much harder to aggregate data, to replicate studies, and to judge published articles. In fact, academic scientific bodies have been among the strongest critics of database protection. But negative evidence, by its nature, is hard to produce; "show me the science that did not get done!" Certainly, both U.S. science and commerce have benefited extraordinarily from the openness of U.S. data policy. I will deal with this issue in the next part of this chapter. 31 If the United States does not give intellectual property protection to raw data, to facts, how is it that the database industry has managed to thrive here and to do better than in Europe, which has extremely strong protection? The economists described in Chapter 1 would surely tell us that this is a potential "public goods" problem. If it is hard to exclude others from the resource--it is cheap and easy to copy--and if the use of the resource is not "rival"--if I don't use up your facts by consulting them--then we ought to see the kind of dystopia economists predict. What would that consist of? First it might result in underproduction. Databases with a social value higher than their cost of creation would not get made because the creator could not get an adequate return on investment. In some cases it might even lead to the reverse--overproduction, where each party creates the database for itself. We get a social overinvestment to produce the resource because there is no legal right to exclude others from it. If you gave the first creator an intellectual property right over the data, they could sell to subsequent users at a price lower than their own cost to create the database. Everyone would win. But the United States did not give the intellectual property right and yet its database industry is flourishing. There are lots of commercial database providers and many different kinds of databases. How can this be? Is the economic model wrong? 32 The answer to that is no, the model is not wrong. It is, however, incomplete and all too often applied in sweeping ways without acknowledging that its basic assumptions may not hold in a particular case. That sounds vague. Let me give a concrete example. Westlaw is one of the two leading legal database providers and, as I mentioned before, one of the key proponents of creating intellectual property rights over unoriginal databases. (There is considerable question whether such a law would be constitutional in the United States, but I will pass over that argument for the moment.) Westlaw's "problem" is that much of the material that it provides to its subscribers is not covered by copyright. Under Section 105 of the U.S. Copyright Act, works of the federal government cannot be copyrighted. They pass immediately into the public domain. Thus all the federal court decisions, from district courts all the way up to the Supreme Court, all the federal statutes, the infinite complexity of the Federal Register, all this is free from copyright. This might seem logical for government-created work, for which the taxpayer has already paid, but as I will explain in the next section of the chapter, not every country adopts such a policy. 33 West, another Thomson subsidiary that owns Westlaw, publishes the standard case reporter series. When lawyers or judges refer to a particular opinion, or quote a passage within an opinion, they will almost always use the page number of the West edition. After all, if no one else can find the cases or statutes or paragraphs of an opinion that you are referring to, legal argument is all but impossible. (This might seem like a great idea to you. I beg to differ.) As electronic versions of legal materials became more prevalent, West began getting more competition. Its competitors did two things that West found unforgivable. First, they frequently copied the text of the cases from West's electronic services, or CD-ROMs, rather than retyping them themselves. Since the cases were works of the federal government, this was perfectly legal provided the competitors did not include West's own material, such as summaries of the cases written by its employees or its key number system for finding related issues. Second, the competitors would include, within their electronic editions, the page numbers to West's editions. Since lawyers need to cite the precise words or arguments they are referring to, providing the raw opinion alone would have been all but useless. Because West's page numbers were one of the standard ways to cite case opinions, competitors would indicate where the page breaks on the printed page would have been, just as West did in its own databases. 34 West's reaction to all of this was exactly like Apple's reaction in the story I told in Chapter 5 about the iPod or like Rural's reaction to the copying of its phone directory. This was theft! They were freeloading on West's hard work! West had mixed its sweat with these cites, and so should be able to exclude other people from them! Since it could not claim copyright over the cases, West claimed copyright over the order in which they were arranged, saying that when its competitors provided its page numbers for citation purposes, they were infringing that copyright. 35 In the end, West lost its legal battles to claim copyright over the arrangement of the collections of cases and the sequence in which they were presented. The Court held that, as with the phone directory, the order in which the cases were arranged lacked the minimum originality required to sustain a copyright claim.4 At this stage, according to the standard public goods story, West's business should have collapsed. Unable to exclude competitors from much of the raw material of its databases, West would be undercut by competitors. More importantly, from the point of view of intellectual property policy, its fate would deter potential investors in other databases--databases that we would lose without even knowing they could have been possible. Except that is not the way it turned out. West has continued to thrive. Indeed, its profits have been quite remarkable. How can this be? 36 The West story shows us three ways in which we can leap too quickly from the abstract claim that some information goods are public goods--nonexcludable and nonrival--to the claim that this particular information good has those attributes. The reality is much more complex. Type www.westlaw.com into your Internet browser. That will take you to the home page of West's excellent legal research service. Now, I have a password to that site. You probably do not. Without a password, you cannot get access to West's site at all. To the average consumer, the password acts as a physical or technical barrier, making the good "excludable"--that is, making it possible to exclude someone from it without invoking intellectual property rights. But what about competitors? They could buy access and use that access to download vast quantities of the material that is unprotected by copyright. Or could they? Again, West can erect a variety of barriers, ranging from technical limits on how much can be downloaded to contractual restrictions on what those who purchase its service can do ("No copying every federal case," for example). 37 Let's say the competitor somehow manages to get around all this. Let's say it somehow avoids copying the material that West does have a copyright over--such as the headnotes and case synopses. The competitor launches their competing site at lower prices amidst much fanfare. Do I immediately and faithlessly desert West for a lower-priced competitor? Not at all. First of all, there are lots of useful things in the West database that are covered by copyright--law review articles and certain treatises, for example. The competitor frequently cannot copy those without coming to the same sort of agreements that West has with the copyright holders. For much legal research, that secondary material is as important as the cases. If West has both, and the competitor only one, I will stick with West. Second, West's service is very well designed. (It is only their copyright policies I dislike, not the product.) If a judge cites a law review article in a case, West will helpfully provide a hyperlink to the precise section of the article she is referring to. I can click on it and in a second see what the substance of the argument is. The reverse is true if a law review article cites a statute or a case. Cases have "flags" on them indicating whether they have been overruled or cited approvingly in subsequent decisions. In other words, faced with the competitive pressure of those who would commoditize their service and provide it at lower cost, West has done what any smart company would: added features and competed by offering a superior service. Often it has done so by "tying" its uncopyrightable data structures to its huge library of copyrighted legal material. 38 The company that challenged Westlaw in court was called Hyperlaw. It won triumphantly. The courts declared that federal cases and the page numbers in the West volumes were in the public domain. That decision came in 1998 and Westlaw has lobbied hard since then to reverse it by statute, to create some version of the Database Directive in the United States. To date, they have failed. The victor, Hyperlaw, has since gone out of business. Westlaw has not. 39 This little story contains a larger truth. It is true that innovation and information goods will, in general, tend to be less excludable and less rival than a ham sandwich, say. But, in practice, some of them will be linked or connected in their social setting to other phenomena that are highly excludable. The software can easily be copied--but access to the help lines can be restricted with ease. Audiences cannot easily be excluded from viewing television broadcasts, but advertisers can easily be excluded from placing their advertisements in those programs. The noncopyrightable court decisions are of most use when embedded within a technical system that gives easy access to other material--some of it copyrighted and all of it protected by technical measures and contractual restrictions. The music file can be downloaded; the band's T-shirt or the experience of the live concert cannot. Does this mean that we never need an intellectual property right? Not at all. But it does indicate that we need to be careful when someone claims that "without a new intellectual property right I am doomed." 40 One final story may drive home the point. When they read Feist v. Rural, law students often assume that the only reason Feist offered to license the white pages listings from Rural is because they (mistakenly) thought they were copyrighted. This is unlikely. Most good copyright lawyers would have told you at the time of the Feist case that the "sweat of the brow" decisions that gave copyright protection based on hard work were not good law. Most courts of appeals had said so. True, there was some legal uncertainty, and that is often worth paying to avoid. But switch the question around and suppose it is the day after the Supreme Court decides the Feist case, and Feist is heading off into another market to try to make a new regional phone directory. Do they now just take the numbers without paying for them, or do they still try to negotiate a license? The latter is overwhelmingly likely. Why? Well, for one thing, they would get a computer-readable version of the names and would not have to retype or optically scan them. More importantly, the contract could include a right to immediate updates and new listings. 41 The day after the Feist decision, the only thing that had changed in the telephone directory market was that telephone companies knew for sure, rather than merely as a probability, that if they refused to license, their competitors could laboriously copy their old listings without penalty. The nuclear option was no longer available. Maybe the price demanded would be a little lower. But there would still be lots of good reasons for Feist to buy the information, even though it was uncopyrighted. You do not always need an intellectual property right to make a deal. Of course, that is not the whole story. Perhaps the incentives provided by other methods are insufficient. But in the U.S. database industry they do not seem to have been. Quite the contrary. The studies we have on the European and the American rules on database rights indicate that the American approach simply works better. 42 I was not always opposed to intellectual property rights over data. Indeed, in a book written before the enactment of the Database Directive, I said that there was a respectable economic argument that such protection might be warranted and that we needed research on the issue.5 Unfortunately, Europe got the right without the research. The facts are now in. If the European Database Directive were a drug, the government would be pulling it from the market until its efficacy and harmfulness could be reassessed. At the very least, the Commission needed a detailed empirical review of the directive's effects, and needs to adjust the directive's definitions and fine-tune its limitations. But there is a second lesson. There is more discussion of the empirical economic effects of the Database Directive in this chapter than in the six-hundred-page review of the directive that the European Commission paid a private company to conduct, and which was the first official document to consider the issue. 43 That seemed to me and to many other academics to be a scandal and we said so as loudly as we could, pointing out the empirical evidence suggesting that the directive was not working. Yet if it was a scandal, it was not a surprising one, because the evidence-free process is altogether typical of the way we make intellectual property policy. President Bush is not the only one to make "faith-based" decisions. 44 There was, however, a ray of hope. In its official report on the competitive effects of the Database Directive, the European Commission recently went beyond reliance on anecdote and industry testimony and did something amazing and admirable. It conducted an empirical evaluation of whether the directive was actually doing any good. 45 The report honestly described the directive as "a Community creation with no precedent in any international convention." Using a methodology similar to the one in this chapter on the subject, the Commission found that "the economic impact of the 'sui generis' right on database production is unproven. Introduced to stimulate the production of databases in Europe, the new instrument has had no proven impact on the production of databases."6 46 In fact, their study showed that the production of databases had fallen to pre-directive levels and that the U.S. database industry, which has no such intellectual property right, was growing faster than the European Union's. The gap appears to be widening. This is consistent with the data I had pointed out in newspaper articles on the subject, but the Commission's study was more recent and, if anything, more damning. 47 Commission insiders hinted that the study may be part of a larger--and welcome--transformation in which a more professional and empirical look is being taken at the competitive effects of intellectual property protection. Could we be moving away from faith-based policy in which the assumption is that the more new rights we create, the better off we will be? Perhaps. But unfortunately, while the report was a dramatic improvement, traces of the Commission's older predilection for faith-based policy and voodoo economics still remain. 48 The Commission coupled its empirical study of whether the directive had actually stimulated the production of new databases with another intriguing kind of empiricism. It sent out a questionnaire to the European database industry asking if they liked their intellectual property right--a procedure with all the rigor of setting farm policy by asking French farmers how they feel about agricultural subsidies. More bizarrely still, the report sometimes juxtaposed the two studies as if they were of equivalent worth. Perhaps this method of decision making could be expanded to other areas. We could set communications policy by conducting psychoanalytic interviews with state telephone companies--let current incumbents' opinions determine what is good for the market as a whole. "What is your emotional relationship with your monopoly?" "I really like it!" "Do you think it hurts competition?" "Not at all!" 49 There are also a few places where the reasoning in the report left one scratching one's head. One goal of the database right was to help close the gap between the size of the European and U.S. database markets. Even before the directive, most European countries already gave greater protection than the United States to compilations of fact. The directive raised the level still higher. The theory was that this would help build European market share. Of course, the opposite is also possible. Setting intellectual property rights too high can actually stunt innovation. In practice, as the Commission's report observes, "the ratio of European / U.S. database production, which was nearly 1:2 in 1996, has become 1:3 in 2004."7 Europe had started with higher protection and a smaller market. Then it raised its level of protection and lost even more ground. Yet the report was oddly diffident about the possibility that the U.S. system actually works better. 50 In its conclusion, the report offered a number of possibilities, including repealing the directive, amending it to limit or remove the "sui generis" right while leaving the rest of the directive in place, and keeping the system as it is. The first options are easy to understand. Who would want to keep a system when it is not increasing database production, or European market share, and, indeed, might be actively harmful? Why leave things as they are? The report offers several reasons. 51 First, database companies want to keep the directive. (The report delicately notes that their "endorsement . . . is somewhat at odds with the continued success of U.S. publishing and database production that thrives without . . . [such] protection," but nevertheless appears to be "a political reality.") Second, repealing the directive would reopen the debate on what level of protection is needed. Third, change may be costly. 52 Imagine applying these arguments to a drug trial. The patients in the control group have done better than those given the drug and there is evidence that the drug might be harmful. But the drug companies like their profits and want to keep the drug on the market. Though "somewhat at odds" with the evidence, this is a "political reality." Getting rid of the drug would reopen the debate on the search for a cure. Change is costly--true. But what is the purpose of a review if the status quo is always to be preferred? 53 The final result? Faced with what Commission staff members tell me was a tidal wave of lobbying from publishers, the Commission quietly decided to leave the directive unchanged, despite the evidence. The result itself is not remarkable. Industry capture of a regulatory apparatus is hardly a surprise. What is remarkable is that this is one of the first times any entity engaged in making intellectual property policy on the international level has even looked seriously at the empirical evidence of that policy's effects. 54 To be sure, figures are thrown around in hearings. The software industry will present studies showing, for example, that it has lost billions of dollars because of illicit copying. It has indeed lost profits relative to what it could get with all the benefits of cheaper copying and transmission worldwide and with perfect copyright enforcement as well. (Though the methodology of some of the studies, which assumes that each copier would have paid full price--is ridiculous.) But this simply begs the question. A new technology is introduced that increases the size of your market and decreases your costs dramatically, but also increases illicit copying. Is this cause for state intervention to increase your level of rights or the funds going toward enforcement of copyright law, as opposed to any other law enforcement priority? The question for empirical analysis, both before and after a policy change, should be "Is this change necessary in order to maintain incentives for production and distribution? Will whatever benefits it brings outweigh the costs of static and dynamic losses--price increases to consumers and impediments to future innovators?" The content companies might still be able to justify the extensions of their rights. But they would be doing so in the context of a rational, evidence-based debate about the real goals of intellectual property, not on the assumption that they have a natural right to collect all the economic surplus gained by a reduction in the costs of reproduction and distribution. 55 DOES PUBLIC INFORMATION WANT TO BE FREE? 56 The United States has much to learn from Europe about information policy. The ineffectively scattered U.S. approach to data privacy, for example, produces random islands of privacy protection in a sea of potential vulnerability. Until recently, your video rental records were better protected than your medical records. Europe, by contrast, has tried to establish a holistic framework, a much more effective approach. But there are places where the lessons should flow the other way. The first one, I have suggested, is database protection. The second is a related but separate issue: the legal treatment of publicly generated data, the huge, and hugely important, flow of information produced by government-funded activities--from ordnance survey maps and weather data to state-produced texts, traffic studies, and scientific information. How is this flow of information distributed? The norm turns out to be very different in the United States and in Europe. 57 In one part of the world, state-produced data flows are frequently viewed as revenue sources. They are often copyrighted or protected by database rights. Many of the departments which produce them attempt to make a profit or at least to recover their entire operating costs through user fees. It is heresy to suggest that the taxpayer has already paid for the production of this data and should not have to do so twice. The other part of the world practices a benign form of information socialism. By law, any text produced by the central government is free from copyright and passes immediately into the public domain. The basic norm is that public data flows should be available at the cost of reproduction alone. 58 It is easy to guess which area is which. The United States is surely the profit and property-obsessed realm, Europe the place where the state takes pride in providing data as a public service? No, actually, it is the other way around. 59 Take weather data. The United States makes complete weather data available to all at the cost of reproduction. If the superb government Web sites and data feeds are insufficient, for the cost of a box of blank DVDs you can have the entire history of weather records across the continental United States. European countries, by contrast, typically claim government copyright over weather data and often require the payment of substantial fees. Which approach is better? I have been studying the issue for fifteen years, and if I had to suggest a single article it would be the magisterial study by Peter Weiss called "Borders in Cyberspace," published by the National Academies of Science.8 Weiss shows that the U.S. approach generates far more social wealth. True, the information is initially provided for free, but a thriving private weather industry has sprung up which takes the publicly funded data as its raw material and then adds value to it. The U.S. weather risk management industry, for example, is more than ten times bigger than the European one, employing more people, producing more valuable products, generating more social wealth. Another study estimates that Europe invests 9.5 billion Euros in weather data and gets approximately 68 billion back in economic value--in everything from more efficient farming and construction decisions to better holiday planning--a sevenfold multiplier. The United States, by contrast, invests twice as much--19 billion--but gets back a return of 750 billion Euros, a thirty-nine-fold multiplier. 60 Other studies suggest similar patterns elsewhere, in areas ranging from geospatial data to traffic patterns and agriculture. The "free" information flow is better at priming the pump of economic activity. 61 Some readers may not thrill to this way of looking at things because it smacks of private corporations getting a "free ride" on the public purse--social wealth be damned. But the benefits of open data policies go further. Every year the monsoon season kills hundreds and causes massive property damage in Southeast Asia. One set of monsoon rains alone killed 660 people in India and left 4.5 million homeless. Researchers seeking to predict the monsoon sought complete weather records from the United States and Europe so as to generate a model based on global weather patterns. The U.S. data was easily and cheaply available at the cost of reproduction. The researchers could not afford to pay the price asked by the European weather services, precluding the "ensemble" analysis they sought to do. Weiss asks rhetorically, "What is the economic and social harm to over 1 billion people from hampered research?" In the wake of the outpouring of sympathy for tsunami victims in the same region, this example seems somehow even more tragic. Will the pattern be repeated with seismographic, cartographic, and satellite data? One hopes not. 62 The European attitude may be changing. Competition policy has already been a powerful force in pushing countries to rethink their attitudes to government data. The European Directive on the Reuse of Public Sector Information takes large strides in the right direction, as do studies by the Organization for Economic Co-operation and Development (OECD) and several national initiatives.9 Unfortunately, though, most of these follow the same pattern. An initially strong draft is watered down and the utterly crucial question of whether data should be provided at the marginal cost of reproduction is fudged or avoided. This is a shame. Again, if we really believed in evidence-based policy making, the debate would be very different. 63 BREAKING THE DEAL 64 What would the debate look like if we took some of the steps I mention here? Unfortunately there are very few examples of evidence-based policy making, but the few that do exist are striking. 65 In 2006, the government-convened Gowers Review of intellectual property policy in the United Kingdom considered a number of proposals on changes to copyright law, including a retrospective extension of sound recording copyright terms.10 The copyright term for sound recordings in the United Kingdom is fifty years. (It is longer for compositions.) At the end of the fifty-year period, the recording enters the public domain. If the composition is also in the public domain--the great orchestral works of Beethoven, Brahms, and Mozart, for example, or the jazz classics of the early twentieth century--then anyone can copy the recording. This means we could make it freely available in an online repository for music students throughout Britain--perhaps preparing the next generation of performers--or republish it in a digitally cleansed and enhanced edition. If the composition is still under copyright, as with much popular music, then the composer is still entitled to a licensing fee, but now any music publisher who pays that fee can reissue the work--introducing competition and, presumably, bringing down prices of the recording. 66 The recording industry, along with successful artists such as Sir Cliff Richard and Ian Anderson of Jethro Tull, wished to extend the fifty-year term to ninety-five years, or perhaps even longer--the life of the performer, plus seventy years. This proposal was not just for new recordings, but for the ones that have already been made. 67 Think of the copyright system as offering a deal to artists and record companies. "We will enlist the force of the state to give you fifty years of monopoly over your recordings. During that time, you will have the exclusive right to distribute and reproduce your recording. After that time, it is available to all, just as you benefited from the availability of public domain works from your predecessors. Will you make records under these terms?" 68 Obviously, fifty years of legalized exclusivity was enough of an incentive to get them to make the music in the first place. We have the unimpeachable evidence that they actually did. Now they want to change the terms of the deal retrospectively. They say this will "harmonize" the law internationally, give recordings the same treatment as compositions, help struggling musicians, and give the recording industry some extra money that it might spend on developing new talent. (Or on Porsches, shareholder dividends, and plastic ducks. If you give me another forty-five years of monopoly rent, I can spend it as I wish.) 69 Change the context and think about how you would react to this if the deal was presented to you personally. You hired an artist to paint a portrait. You offered $500. He agreed. You had a deal. He painted the painting. You liked it. You gave him the money. A few years later he returned. "You owe me another $450," he said. 70 You both looked at the contract. "But you agreed to paint it for $500 and I paid you that amount." He admitted this was true, but pointed out that painters in other countries sometimes received higher amounts, as did sculptors in our own country. In fact, he told you, all painters in our country planned to demand another $450 for each picture they had already painted as well as for future pictures. This would "harmonize" our prices with other countries, put painting on the same footing as sculpture, and enable painters to hire more apprentices. His other argument was that painters often lost money. Only changing the terms of their deals long after they were struck could keep them in business. Paying the money was your duty. If you did not pay, it meant that you did not respect art and private property. 71 You would find these arguments absurd. Yet they are the same ones the record industry used, relying heavily on the confusions against which this book has warned. Is the record companies' idea as outrageous as the demands of my imaginary painter? It is actually worse. 72 The majority of sound recordings made more than forty years ago are commercially unavailable. After fifty years, only a tiny percentage are still being sold. It is extremely hard to find the copyright holders of the remainder. They might have died, gone out of business, or simply stopped caring. Even if the composer can be found, or paid through a collection society, without the consent of the holder of the copyright over the musical recording, the work must stay in the library. These are "orphan works"--a category that probably comprises the majority of twentieth-century cultural artifacts. 73 Yet as I pointed out earlier, without the copyright holder's permission, it is illegal to copy or redistribute or perform these works, even if it is done on a nonprofit basis. The goal of copyright is to encourage the production of, and public access to, cultural works. It has done its job in encouraging production. Now it operates as a fence to discourage access. As the years go by, we continue to lock up 100 percent of our recorded culture from a particular year in order to benefit an ever-dwindling percentage--the lottery winners--in a grotesquely inefficient cultural policy. 74 Finally, fifty years after they were made, sound recordings enter the public domain in the United Kingdom (though as I pointed out earlier, licensing fees would still be due to the composer if the work itself was still under copyright). Now anyone--individual, company, specialist in public domain material--could offer the work to the public. But not if the record companies can persuade the government otherwise. Like my imaginary painter, they want to change the terms of the deal retrospectively. But at least the painter's proposal would not make the vast majority of paintings unavailable just to benefit a tiny minority of current artists. 75 The recording industry's proposal for retrospective extension was effectively a tax on the British music-buying public to benefit the copyright holders of a tiny proportion of sound recordings. The public loses three times. It loses first when it is forced to continue to pay monopoly prices for older, commercially available music, rather than getting the benefit of the bargain British legislators originally offered: fifty years of exclusivity, then the public domain. The public loses a second time when, as a side effect, it is denied access to commercially unavailable music; no library or niche publisher can make the forgotten recordings available again. Finally, the public loses a third time because allowing retrospective extensions will distort the political process in the future, leading to an almost inevitable legislative capture by the tiny minority who find that their work still has commercial value at the end of the copyright term they were originally granted. As Larry Lessig has pointed out repeatedly, the time to have the debate about the length of the copyright term is before we know whose works will survive commercially. 76 The whole idea is very silly. But if this is the silly idea we wish to pursue, then simply increase the income tax proportionately and distribute the benefits to those record companies and musicians whose music is still commercially available after fifty years. Require them to put the money into developing new artists--something the current proposal does not do. Let all the other recordings pass into the public domain. 77 Of course, no government would consider such an idea for a moment. Tax the public to give a monopoly windfall to those who already hit the jackpot, because they claim their industry cannot survive without retrospectively changing the terms of its deals? It is indeed laughable. Yet it is a far better proposal than the one that was presented to the Gowers Review. 78 What happened next was instructive. The Review commissioned an economic study of the effects of copyright term extension--both prospective and retrospective--on recorded music from the University of Cambridge's Centre for Intellectual Property and Information Law. The resulting document was a model of its kind.11 79 With painstaking care and a real (if sometimes fruitless) attempt to make economic arguments accessible to ordinary human beings, the study laid out the costs and benefits of extending the copyright term over sound recordings. It pointed out that the time to measure the value of a prospective term extension is at the moment the copyright is granted. Only then does it produce its incentive effects. The question one must ask is how much value today does it give an artist or record company to have their copyright extended by a year at the end of the existing period of protection. Then one must look to see whether the benefits of the added incentive outweigh the social costs it imposes. To put it another way, if the state were selling today the rights to have protection from year fifty to year ninety- five, how much would a rational copyright holder pay, particularly knowing that there is only a small likelihood the work will even be commercially available to take advantage of the extension? Would that amount be greater than the losses imposed on society by extending the right? 80 Obviously, the value of the extension is affected by our "discount rate"--the annual amount by which we must discount a pound sterling in royalties I will not receive for fifty-one years in order to find its value now. Unsurprisingly, one finds that the value of that pound in the future is tiny at the moment when it matters--today--in the calculation of an artist or distributor making the decision whether to create. Conservative estimates yield a present value between 3 percent and 9 percent of the eventual amount. By that analysis, a pound in fifty years is worth between three and nine pence to you today, while other estimates have the value falling below one penny. This seems unlikely to spur much creativity at the margin. Or to put it in the more elegant language of Macaulay, quoted in Chapter 2: 81 I will take an example. Dr. Johnson died fifty-six years ago. If the law were what my honourable and learned friend wishes to make it, somebody would now have the monopoly of Dr. Johnson's works. Who that somebody would be it is impossible to say; but we may venture to guess. I guess, then, that it would have been some bookseller, who was the assign of another bookseller, who was the grandson of a third bookseller, who had bought the copyright from Black Frank, the Doctor's servant and residuary legatee, in 1785 or 1786. Now, would the knowledge that this copyright would exist in 1841 have been a source of gratification to Johnson? Would it have stimulated his exertions? Would it have once drawn him out of his bed before noon? Would it have once cheered him under a fit of the spleen? Would it have induced him to give us one more allegory, one more life of a poet, one more imitation of Juvenal? I firmly believe not. I firmly believe that a hundred years ago, when he was writing our debates for the Gentleman's Magazine, he would very much rather have had twopence to buy a plate of shin of beef at a cook's shop underground.12 82 The art form is different, but the thought of a 1960s Cliff Richard or Ian Anderson being "cheered under a fit of the spleen" by the prospect of a copyright extension fifty years hence is truly a lovely one. 83 Considering all these factors, as well as the effects on investment in British versus American music and on the balance of trade, the Cambridge study found that the extension would cost consumers between 240 and 480 million pounds, far more than the benefits to performers and recording studios. (In practice, the report suggested, without changes in the law, most of the benefits would not have gone to the original recording artist in any case.) It found prospective extension led to a clear social welfare loss. What of retrospective extension? 84 The report considered, and found wanting, arguments that retrospective extension is necessary to encourage "media migration"--the digitization of existing works, for example. In fact, most studies have found precisely the reverse--that public domain works are more available and more frequently adapted into different media. (Look on Amazon.com for a classic work that is out of copyright--Moby-Dick, for example--and see how many adaptations and formats are available.) It also rejected the argument that harmonization alone was enough to justify extension--retrospective or prospective--pointing out the considerable actual variation in both term and scope of rights afforded to performers in different countries. Finally, it warned of the "hidden 'ratcheting' effect of harmonisation which results from the fact that harmonisation is almost invariably upwards." Its conclusion was simple: 85 [R]etrospective term extensions reduce social welfare. Thus, in this case, it would seem that basic theory alone is sufficient to provide strong, and unambiguous, guidance for policy-makers. . . . We therefore see no reason to quarrel with the consensus of the profession on this issue which as summed up by Akerlof et al. . . . [states] categorically that . . . "[retrospective] extension provides essentially no incentive to create new works. Once a work is created, additional compensation to the producer is simply a windfall."13 86 The Gowers Review agreed. Its fourth recommendation read simply, "Policy makers should adopt the principle that the term and scope of protection for IP rights should not be altered retrospectively." Perhaps more important, though, was the simple paragraph at the front of the document captioned "The Approach of the Review." It begins thus: "The Review takes an evidence- based approach to its policy analysis and has supplemented internal analysis by commissioning external experts to examine the economic impact of changes. . . ." 87 Why specify that one was taking an "evidence-based" approach? At first, the comment seems unnecessary. What other approach would one take? Anecdotal? Astrological? But there is a framework in which empirical evidence of the effects of policy simply seems irrelevant--one based on natural right. When the Review was given to the House of Commons Select Committee on Culture, Media and Sport, that frame of mind was much in evidence: 88 The Gowers Review undertook an extensive analysis of the argument for extending the term. On economic grounds, the Review concluded that there was little evidence that extension would benefit performers, increase the number of works created or made available, or provide incentives for creativity; and it noted a potentially negative effect on the balance of trade. . . . Gowers's analysis was thorough and in economic terms may be correct. It gives the impression, however, of having been conducted entirely on economic grounds. We strongly believe that copyright represents a moral right of a creator to choose to retain ownership and control of their own intellectual property. We have not heard a convincing reason why a composer and his or her heirs should benefit from a term of copyright which extends for lifetime and beyond, but a performer should not. . . . Given the strength and importance of the creative industries in the U.K., it seems extraordinary that the protection of intellectual property rights should be weaker here than in many other countries whose creative industries are less successful.14 89 A couple of things are worth noting here. The first is that the Committee is quite prepared to believe that the effects of term extension would not benefit performers or provide incentives for creativity, and even to believe that it would hurt the balance of trade. The second is the curious argument in the last sentence. Other countries have stronger systems of rights and are less successful. We should change our regime to be more like them! Obviously the idea that a country's creative industries might be less successful because their systems of rights were stronger does not occur to the Committee for a moment. Though it proclaims itself to be unaffected by economic thought, it is in fact deeply influenced by the "more rights equals more innovation" ideology of maximalism that I have described in these pages. 90 Nestling between these two apparently contradictory ideas is a serious argument that needs to be confronted. Should we ignore evidence--even conclusive evidence--of negative economic effects, harm to consumers, and consequences for the availability of culture because we are dealing with an issue of moral right, almost natural right? Must we extend the rights of the artists who recorded those songs (or rather the record companies who immediately acquired their copyrights) because they are simply theirs as a matter of natural justice? Do performers have a natural right to recorded songs either because they have labored on them, mixing their sweat with each track, or because something of their personality is forever stamped into the song? Must we grant an additional forty-five years of commercial exclusivity, not because of economic incentive, but because of natural right? 91 Most of us feel the pull of this argument. I certainly do. But as I pointed out in Chapter 2, there are considerable problems with such an idea. First, it runs against the premises of actual copyright systems. In the United States, for example, the Constitution resolutely presents the opposite picture. Exclusive rights are to encourage progress in science and the useful arts. The Supreme Court has elaborated on this point many times, rejecting both labor-based "sweat of the brow" theories of copyright and more expansive visions based on a natural right to the products of one's genius--whether inventions or novels. Britain, too, has a history of looking to copyright as a utilitarian scheme--though with more reference to, and legal protection of, particular "moral rights" than one finds in the United States. But even in the most expansive "moral rights" legal systems, even in the early days of debate about the rights of authors after the French Revolution, it is accepted that there are temporal limits on these rights. If this is true of authors, it is even more true of performers, who are not granted the full suite of author's rights in moral rights jurisdictions, being exiled to a form of protection called "neighboring" rights. 92 In all of these schemes, there are time limits on the length of the rights (and frequently different ones for different creators--authors, inventors, performers, and so on). Once one has accepted that point, the question of how long they should be is, surely, a matter for empirical and utilitarian analysis. One cannot credibly say that natural rights or the deep deontological structure of the universe gives me a right to twenty-eight or fifty-six or seventy years of exclusivity. The argument must turn instead to a question of consequences. Which limit is better? Once one asks that question, the Gowers Review's economic assessment is overwhelming, as the Select Committee itself recognized. In the end, the government agreed--noting that a European Union study had found precisely the same thing. The sound recording right should not be extended, still less extended retrospectively. The evidence-free zone had been penetrated. But not for long. As this book went to press, the European Commission announced its support for an even longer Europe-wide extension of the sound recording right. The contrary arguments and empirical evidence were ignored, minimized, explained away. How can this pattern be broken? 93 In the next and final chapter, I try to answer that question. I offer a partial explanation for the cognitive and organizational blindnesses that have brought us to this point. I argue that we have much to learn from the history, theory, and organizational practices of the environmental movement. The environmental movement taught us to see "the environment" for the first time, to recognize its importance, and to change the way we thought about ecology, property, and economics in consequence. What we need is an environmentalism of mind, of culture, of information. In the words of my colleague David Lange, we need to "recognize the public domain." And to save it. Chapter 10: An Environmentalism for Information 1 Over the last fifteen years, a group of scholars have finally persuaded economists to believe something noneconomists find obvious: "behavioral economics" shows that people do not act as economic theory predicts. But hold your cheers. This is not a vindication of folk wisdom over the pointy-heads. The deviations from "rational behavior" are not the wonderful cornucopia of human motivations you might imagine. There are patterns. For example, we are systematically likely to overestimate chances of loss and underestimate chances of gain, to rely on simplifying heuristics to frame problems even when those heuristics are contradicted by the facts. 2 Some of the patterns are endearing; the supposedly "irrational" concerns for distributive equality that persist in all but the economically trained and the extreme right, for example. But most of them simply involve the mapping of cognitive bias. We can take advantage of those biases, as those who sell us ludicrously expensive and irrational warranties on consumer goods do. Or we can correct for them, like a pilot who is trained to rely on his instruments rather than his faulty perceptions when flying in heavy cloud. 3 This book has introduced you to the wonders and terrors of intellectual property law--the range wars of the Internet age. There have been discussions of synthetic biology and musical sampling, digital locks and the hackers who break them, Jefferson and Macaulay, and the fight over video recorders. Now it is time to sum up. 4 I would argue that the chapters in this book present evidence of another kind of cognitive bias, one that the behavioral economists have not yet identified. Call it the openness aversion. Cultural agoraphobia. We are systematically likely to undervalue the importance, viability, and productive power of open systems, open networks, and nonproprietary production. 5 CULTURAL AGORAPHOBIA? 6 Test yourself on the following questions. In each case, it is 1991 and I have removed from you all knowledge of the years since then. (For some, this might be a relief.) 7 The first question is a thought experiment I introduced in Chapter 4. You have to design an international computer network. One group of scientists describes a system that is fundamentally open: open protocols and open systems so that anyone could connect to the system and offer information or products to the world. Another group--scholars, businesspeople, bureaucrats--points out the problems. Anyone could connect to the system! They could do anything! The system itself would not limit them to a few approved actions or approved connections. There would be porn, and piracy, and viruses, and spam. Terrorists could put up videos glorifying themselves. Your neighbor's site could compete with the New York Times or the U.S. government in documenting the war in Iraq. Better to have a well-managed system in which official approval is required to put up a site, where only a few selected actions are permitted by the network protocols, where most of us are merely recipients of information, where spam, viruses, and piracy (and innovation and participatory culture and anonymous speech) are impossible. Which network design would you have picked? Remember, you have no experience of blogs, or mashups, or Google; no experience of the Web. Just you and your cognitive filters. 8 Imagine a form of software which anyone could copy and change, created under a license which required subsequent programmers to offer their software on the same terms. Imagine legions of programmers worldwide contributing their creations back into a "commons." Is this anarchic-sounding method of production economically viable? Could it successfully compete with the hierarchically organized corporations producing proprietary, closed code, controlled by both law and technology? Be truthful. 9 Finally, set yourself the task of producing the greatest reference work the world has ever seen. You are told that it must cover everything from the best Thai food in Durham to the annual rice production of Thailand, from the best places to see blue whales to the history of the Blue Dog Coalition. Would you create a massive organization of paid experts, each assigned a topic, with hierarchical layers of editors above them, producing a set of encyclopedic tomes that are rigorously controlled by copyright and trademark? Or would you wait for hobbyists, governments, scientists, and volunteer encyclopedists to produce, and search engines to organize and rank, a cornucopia of information? I know which way I would have bet in 1991. But I also know that the last time I consulted an encyclopedia was in 1998. You? 10 It is not that openness is always right. It is not. Often we need strong intellectual property rights, privacy controls, and networks that demand authentication. Rather, it is that we need a balance between open and closed, owned and free, and we are systematically likely to get the balance wrong. (How did you do on the test?) Partly this is because we still don't understand the kind of property that lives on networks; most of our experience is with tangible property. Sandwiches that one hundred people cannot share. Fields that can be overgrazed if outsiders cannot be excluded. For that kind of property, control makes more sense. Like astronauts brought up in gravity, our reflexes are poorly suited for free fall. Jefferson's words were true even of grain elevators and hopper-boys. But in our world, the proportion of intangible to tangible property is much, much higher. The tendency to conflate intellectual and real property is even more dangerous in a networked world. We need his words more than he did. 11 Each of the questions I asked is related to the World Wide Web. Not the Internet, the collective name for the whole phenomenon, including the underlying methods of sending and receiving packets. Some version of the underlying network has been around for much longer, in one form or another. But it only attracted popular attention, only revolutionized the world, when on top of it was built the World Wide Web--the network of protocols and pages and hyperlinks that is so much a part of our lives and which arose only from Tim Berners-Lee's work at CERN in 1991. 12 My daughter will graduate from college in the year 2011. (At least, we both hope so.) She is older than the Web. It will not even have had its twentieth birthday on her graduation day. By Christmas of 2012, it will be able to drink legally in the United States. I wrote those sentences, but I find it hard to believe them myself. A life without the Web is easy to remember and yet hard to recapture fully. It seems like such a natural part of our world, too fixed to have been such a recent arrival, as if someone suggested that all the roads and buildings around you had arrived in the last fifteen years. 13 Some of you may find these words inexplicable because you live in a happy, Thoreau-like bliss, free of any contact with computer networks. If so, I take my hat off to you. The world of open sky and virtuous sweat, of books and sport and laughter, is no less dear to me than to you. Having an avatar in a virtual world holds the same interest as elective dental surgery. I care about the Web not because I want to live my life there, but because of what it has allowed us to achieve, what it represents for the potential of open science and culture. That, I think, is something that Thoreau (and even Emerson for that matter) might have cared about deeply. Yet, as I suggested earlier in this book, I seriously doubt that we would create the Web today--at least if policy makers and market incumbents understood what the technology might become early enough to stop it. 14 I am not postulating some sinister "Breakages, Limited" that stifles technological innovation. I am merely pointing out the imbalance between our intuitive perceptions of the virtues and dangers of open and closed systems, an imbalance I share, quite frankly. 15 In place of what we have today, I think we would try, indeed we are trying, to reinvent a tamer, more controlled Web and to change the nature of the underlying network on which it operates. (This is a fear I share with those who have written about it more eloquently than I, particularly Larry Lessig and Yochai Benkler.) We would restrict openness of access, decrease anonymity, and limit the number of actions that a network participant could perform. The benefits would be undeniable. It would cut down on spam, viruses, and illicit peer-to-peer file sharing. At the same time, it would undercut the iconoclastic technological, cultural, and political potential that the Web offers, the ability of a new technology, a new service to build on open networks and open protocols, without needing approval from regulators or entrenched market players, or even the owners of the Web pages to which you link. 16 Imagine, by contrast, an Internet and a World Wide Web that looked like America Online, circa 1996, or Compuserve, or the French state network Minitel. True, your exposure to penis- enhancement techniques, misspelled stock tips, and the penniless sons of Nigerian oil ministers would be reduced. That sounds pretty attractive. But the idea that the AOL search engine would be replaced by Yahoo and then Google, let alone Google Maps? That new forms of instant messaging would displace Compuserve's e-mail? That the Chinese dissident would have access to anonymized Internet services, that you might make phone calls worldwide for free from your computer, or that a blog like BoingBoing would end up having more page views than many major newspapers? Forget it. Goodbye to the radical idea that anyone can link to any page on the network without permission. A revised network could have the opposite rule and even impose it by default. 17 A tamer network could keep much tighter control over content, particularly copyrighted content. You might still get the video of the gentlemen doing strange things with Mentos and soda bottles, though not its viral method of distribution. But forget about "George Bush Doesn't Care About Black People" and all your favorite mashups. Its controlled network of links and its limited access would never unleash the collective fact-gathering genius the Web has shown. For a fee, you would have Microsoft Encarta and the Encyclopedia Britannica online. What about the "right-click universe" of knowledge about the world gathered by strangers, shared on comparatively open sites worldwide, and ordered by search engines? What about Wikipedia? I think not. 18 The counterfactual I offer is not merely a counterfactual. Yes, we got the Web. It spread too fast to think of taming it into the more mature, sedate "National Information Infrastructure" that the Clinton administration imagined. But as Larry Lessig pointed out years ago, the nature of a network can always be changed. The war over the control and design of the network, and the networked computer, is never-ending. As I write these words, the battles are over "trusted computing" and "Net neutrality." Trusted computing is a feature built into the operating system which makes it impossible to run processes that have not been approved by some outside body and digitally identified. It would indeed help to safeguard your computer from viruses and other threats and make it harder to copy material the content owners did not want you to copy (perhaps even if you had a right to). In the process it would help to lock in the power of those who had a dominant position in operating systems and popular programs. (Microsoft is a big supporter.) It would make open source software, which allows users to modify programs, inherently suspect. It would, in fact, as Jonathan Zittrain points out, change the nature of the general-purpose computer, which you can program to do anything, back toward the terminal which tells you what functions are allowed.1 Think of a DVD player. 19 The attack on Net neutrality, by contrast, is an attempt by the companies who own the networks to be allowed to discriminate between favored and disfavored content, giving the former preferential access. (One wit analogized it to letting the phone company say, "we will delay your call to Pizza Hut for sixty seconds, but if you want to be put through to our featured pizza provider immediately, hit nine now!") Taken together, these proposals would put the control of the computer back in the hands of the owners of the content and the operating system, and control of the network users' choices in the hands of the person who sells them their bandwidth. At the same time, our intellectual property agenda is filled with proposals to create new intellectual property rights or extend old ones. That is the openness aversion in action. 20 Now, perhaps to you, the closed alternatives still sound better. Perhaps you do not care as much about the kind of technological dynamism, or anonymous speech, or cultural ferment that thrills the digerati. Perhaps you care more about the risks posed by the underlying freedom. That is a perfectly reasonable point of view. After all, openness does present real dangers; the same freedom given to the innovator, the artist, and the dissident is given to the predator and the criminal. At each moment in history when we have opened a communications network, or the franchise, or literacy, reasonable people have worried about the consequences that might ensue. Would expanded literacy lead to a general coarsening of the literary imagination? (Sometimes, perhaps. But it would and did lead to much more besides, to literature and culture of which we could not have dreamed.) Would an expanded franchise put the control of the state into the hands of the uneducated? (Yes, unless we had free national educational systems. "Now we must educate our masters" was the slogan of the educational reformers after the enlargement of the franchise in Britain in the nineteenth century. Openness sometimes begets openness.) Would translating the Bible from Latin into the vernacular open the door to unorthodox and heretical interpretations, to a congregation straying because they did not need to depend on a priestly intermediary with privileged access to the text? (Oh, yes indeed.) Would TV and radio play into the hands of demagogues? (Yes, and help expose their misdeeds.) 21 Openness is not always right. Far from it. But our prior experience seems to be that we are systematically better at seeing its dangers than its benefits. This book has been an attempt, in the sphere of intellectual property, to help us counteract that bias. Like the pilot in the cloud looking at his instruments, we might learn that we are upside down. But what do we do about it? 22 LEARNING FROM ENVIRONMENTALISM 23 I have argued that our policies are distorted not merely by industry capture or the power of incumbent firms, but by a series of cultural and economic biases or presuppositions: the equation of intellectual property to physical property; the assumption that whenever value is created, an intellectual property right should follow; the romantic idea of creativity that needs no raw material from which to build; the habit of considering the threats, but not the benefits, of new technologies; the notion that more rights will automatically bring more innovation; the failure to realize that the public domain is a vital contributor to innovation and culture; and a tendency to see the dangers of openness, but not its potential benefits.2 24 One of the most stunning pieces of evidence to our aversion to openness is that, for the last fifty years, whenever there has been a change in the law, it has almost always been to expand intellectual property rights. (Remember, this implies that every significant change in technology, society, or economy required more rights, never less, nor even the same amount.) We have done all this almost entirely in the absence of empirical evidence, and without empirical reconsideration to see if our policies were working. As I pointed out in the last chapter, intellectual property policy is an "evidence-free zone." It runs on faith alone and its faith consists of the cluster of ideas I have outlined in this book. Whether we call this cluster of ideas maximalism, cultural agoraphobia, or the openness aversion, it exercises a profound influence on our intellectual property and communications policy. 25 These ideas are not free-floating. They exist within, are influenced by, and in turn influence, a political economy. The political economy matters and it will shape any viable response. Even if the costs of getting the policies wrong are huge and unnecessary--think of the costs of the copyright extensions that lock up most of twentieth-century culture in order to protect the tiny fraction of it that is still commercially available--they are spread out over the entire population, while the benefits accrue to a small group of commercial entities that deeply and sincerely believe in the maximalist creed. This pattern of diffuse but large losses and concentrated gains is, as Mancur Olson taught us, a recipe for political malfunction.3 Yet the problem is even deeper than that--in four ways. 26 First, though intellectual property rules will profoundly shape science, culture, and the market in the information age, they just seem obscure, wonkish, hard to get excited about. Certainly, people can get upset about individual examples--overbroad patents on human genes, copyright lawsuits against whistleblowers who leak e-mails showing corporate misdeeds that threaten the integrity of electronic voting, rules that paralyze documentary filmmakers, or require payment for sampling three notes from a prior song, extensions of rights that allow patents on auctions or business methods, make genres such as jazz seem legally problematic, create new rights over facts, or snarl up foundational technologies. But they see each of these as an isolated malfunction, not part of a larger social problem or set of attitudes. 27 Second, what holds true for issues, also holds true for communities. What links the person writing open source software, and trying to negotiate a sea of software patents in the process, to the film archivist trying to stir up interest in all the wonderful "orphan films"--still under copyright but with no copyright owner we can find--before they molder away into nitrate dust? When a university collaborates with Google to digitize books in their collection for the purposes of search and retrieval, even if only a tiny portion of the text will be visible for any work still under copyright, does it sense any common interest with the synthetic biologist trying to create the BioBricks Foundation, to keep open the foundational elements of a new scientific field? Both may be sued for their efforts--one connection at least. 28 When a developing nation tries to make use of the explicit "flexibilities" built into international trade agreements so as to make available a life-saving drug to its population through a process of compulsory licensing and compensation, it will find itself pilloried as a lawbreaker--though it is not--or punished through bilateral agreements. Will that process form any common interest with the high-technology industries in the United States who chafe at the way that current intellectual property rules enshrine older technologies and business methods and give them the protection of law? There are some links between those two situations. Will the parties see those links, or will the developing world's negotiators think that the current intellectual property rules express some monolithic "Western" set of interests? Will the high-tech companies think this is just an issue of dumb lawyers failing to understand technology? Each gap in understanding of common interest is a strike against an effective response. 29 Third, an effective political response would actually be easier if our current rules came merely from the relentless pursuit of corporate self-interest. (Here I part company with those who believe that self-interest is simply "there"--not shaped by socially constructed ideas, attitudes, ideologies, or biases.) In fact, the openness aversion sometimes obscures self-interest as well as the public interest. Think of the relentless insistence of the movie companies on making video recorders illegal. Nor does the framework of maximalism help if our goal is to have all the interested economic actors in the room when policy is made. For example, by framing issues of communications policy or Internet regulation as questions of intellectual property, we automatically privilege one set of interested parties--content owners--over others who also have a large economic stake in the matter. 30 Fourth, and finally, the biggest problem is that even if one could overcome the problems of political interest, or ideological closed-mindedness, the answers to many of these questions require balance, thought, and empirical evidence--all qualities markedly missing in the debate. If the answer were that intellectual property rights are bad, then forming good policy would be easy. But that is as silly and one-sided an idea as the maximalist one I have been criticizing here. Here are three examples: 31 1. Drug patents do help produce drugs. Jettisoning them is a bad idea--though experimenting with additional and alternative methods of encouraging medical innovation is a very good one. 2. I believe copyrights over literary works should be shorter, and that one should have to renew them after twenty-eight years--something that about 85 percent of authors and publishers will not do, if prior history is anything to go by. I think that would give ample incentives to write and distribute books, and give us a richer, more accessible culture and educational system to boot, a Library of Congress where you truly can "click to get the book" as my son asked me to do years ago now. But that does not mean that I wish to abolish copyright. On the contrary, I think it is an excellent system. 3. All the empirical evidence shows that protecting compilations of facts, as the European Database Directive does, has been a profound failure as a policy, imposing costs on consumers without encouraging new database production. But if the evidence said the opposite, I would support a new database right. 32 We need a political debate about intellectual property that recognizes these trade-offs; that does not impose simplistic, one-sided solutions; that looks to evidence. We need to understand the delicate and subtle balance between property and the opposite of property, the role of rights, but also of the public domain and the commons. Building a theory, let alone a movement, around such an issue is hard. Doing so when we lack some of the basic theoretical tools and vocabularies is daunting. We do not even have a robust conception of the public domain. If they think of it as a legal issue at all, people simply think of it as whatever is left over after an endless series of rights have been carved out. Can one build a politics to protect a residue? 33 So we have at least four problems: an issue that is perceived as obscure, affecting scattered groups with little knowledge of each other's interest, dominated by an ideology that is genuinely believed by its adherents, in the place of which we have to make careful, balanced, empirically grounded suggestions. Assume for a moment the need for a politics of intellectual property that seeks a solution to these four problems. What might such a politics look like? 34 I have argued that in a number of respects, the politics of intellectual property and the public domain is at the stage that the American environmental movement was at in the 1950s. In 1950, there were people who cared strongly about issues we would now identify as "environmental"--supporters of the park system and birdwatchers, but also hunters and those who disdained chemical pesticides in growing their foods. In the world of intellectual property, we have start-up software engineers, libraries, appropriationist artists, parodists, biographers, and biotech researchers. In the 50s and 60s, we had flurries of outrage over particular crises--burning rivers, oil spills, dreadful smog. In the world of intellectual property, we have the kind of stories I have tried to tell here. Lacking, however, is a general framework, a perception of common interest in apparently disparate situations. 35 Crudely speaking, the environmental movement was deeply influenced by two basic analytical frameworks. The first was the idea of ecology: the fragile, complex, and unpredictable interconnections between living systems. The second was the idea of welfare economics--the ways in which markets can fail to make activities internalize their full costs.4 The combination of the two ideas yielded a powerful and disturbing conclusion. Markets would routinely fail to make activities internalize their own costs, particularly their own environmental costs. This failure would, routinely, disrupt or destroy fragile ecological systems, with unpredictable, ugly, dangerous, and possibly irreparable consequences. These two types of analysis pointed to a general interest in environmental protection and thus helped to build a large constituency which supported governmental efforts to that end. The duck hunter's preservation of wetlands as a species habitat turns out to have wider functions in the prevention of erosion and the maintenance of water quality. The decision to burn coal rather than natural gas for power generation may have impacts on everything from forests to fisheries. The attempt to reduce greenhouse gases and mitigate the damage from global warming cuts across every aspect of the economy. 36 Of course, it would be silly to think that environmental policy was fueled only by ideas rather than more immediate desires. As William Ruckelshaus put it, "With air pollution there was, for example, a desire of the people living in Denver to see the mountains again. Similarly, the people living in Los Angeles had a desire to see one another." Funnily enough, as with intellectual property, changes in communications technology also played a role. "In our living rooms in the middle sixties, black and white television went out and color television came in. We have only begun to understand some of the impacts of television on our lives, but certainly for the environmental movement it was a bonanza. A yellow outfall flowing into a blue river does not have anywhere near the impact on black and white television that it has on color television; neither does brown smog against a blue sky."5 More importantly perhaps, the technologically fueled deluge of information, whether from weather satellites or computer models running on supercomputers, provided some of the evidence that--eventually--started to build a consensus around the seriousness of global warming. 37 Despite the importance of these other factors, the ideas I mentioned--ecology and welfare economics--were extremely important for the environmental movement. They helped to provide its agenda, its rhetoric, and the perception of common interest underneath its coalition politics. Even more interestingly, for my purposes, those ideas--which began as inaccessible scientific or economic concepts, far from popular discourse--were brought into the mainstream of American politics. This did not happen easily or automatically. Popularizing complicated ideas is hard work. There were popular books, television discussions, documentaries on Love Canal or the California kelp beds, op-ed pieces in newspapers, and pontificating experts on TV. Environmental groups both shocking and staid played their part, through the dramatic theater of a Greenpeace protest or the tweedy respectability of the Audubon Society. Where once the idea of "the Environment" (as opposed to "my lake," say) was seen as a mere abstraction, something that couldn't stand against the concrete benefits brought by a particular piece of development, it came to be an abstraction with both the force of law and of popular interest behind it. 38 To me, this suggests a strategy for the future of the politics of intellectual property, a way to save our eroding public domain. In both areas, we seem to have the same recipe for failure in the structure of the decision-making process. Democratic decisions are made badly when they are primarily made by and for the benefit of a few stakeholders, whether industrialists or content providers. This effect is only intensified when the transaction costs of identifying and resisting the change are high. Think of the costs and benefits of acid rain-producing power generation or--less serious, but surely similar in form--the costs and benefits of retrospectively increasing copyright term limits on works for which the copyright had already expired, pulling them back out of the public domain. There are obvious benefits to the heirs and assigns of authors whose copyright has expired in having Congress put the fence back up around this portion of the intellectual commons. There are clearly some costs--for example, to education and public debate--in not having multiple, competing low-cost editions of these works. But these costs are individually small and have few obvious stakeholders to represent them. 39 Yet, as I have tried to argue here, beyond the failures in the decision-making process, lie failures in the way we think about the issues. The environmental movement gained much of its persuasive power by pointing out that for structural reasons we were likely to make bad environmental decisions: a legal system based on a particular notion of what "private property" entailed and an engineering or scientific system that treated the world as a simple, linearly related set of causes and effects. In both of these conceptual systems, the environment actually disappeared; there was no place for it in the analysis. Small surprise, then, that we did not preserve it very well. I have argued that the same is true about the public domain. The confusions against which the Jefferson Warning cautions, the source-blindness of a model of property rights centered on an "original author," and the political blindness to the importance of the public domain as a whole (not "my lake," but "the Environment"), all come together to make the public domain disappear, first in concept and then, increasingly, as a reality. To end this process we need a cultural environmentalism, an environmentalism of the mind, and over the last ten years we have actually begun to build one. 40 Cultural environmentalism is an idea, an intellectual and practical movement, that is intended to be a solution to a set of political and theoretical problems--an imbalance in the way we make intellectual property policy, a legal regime that has adapted poorly to the transformation that technology has produced in the scope of law, and, perhaps most importantly, a set of mental models, economic nostrums, and property theories that each have a public domain-shaped hole at their center. 41 The comparison I drew between the history of environmentalism and the state of intellectual property policy had a number of facets. The environmental movement had "invented" the concept of the environment and used it to tie together a set of phenomena that would otherwise seem very separate. In doing so, it changed perceptions of self-interest and helped to form coalitions where none had existed before--just as earth science built upon research into the fragile interconnections of ecology and on the Pigouvian analysis of economic externalities. I argue that we need to make visible the invisible contributions of the public domain, the "ecosystem services" performed by the underappreciated but nevertheless vital reservoir of freedom in culture and science.6 And, just as with environmentalism, we need not only a semantic reorganization, or a set of conceptual and analytic tools, but a movement of people devoted to bringing a goal to the attention of their fellow citizens. 42 I have tried hard to show that there is something larger going on under the realpolitik of land grabs by Disney and campaign contributions by the Recording Industry Association of America. But it would be an equal and opposite mistake to think that this is just about a dysfunctional discourse of intellectual property. In this part of the analysis, too, the environmental movement offers some useful practical reminders. The ideas of ecology and environmental welfare economics were important, but one cannot merely write A Sand County Almanac and hope the world will change. Environmentalists piggybacked on existing sources of conservationist sentiment--love of nature, the national parks movement, hikers, campers, birdwatchers. They built coalitions between those who might be affected by environmental changes. They even stretched their political base by discovering, albeit too slowly, the realities of environmental racism, on the one hand, and the benefits of market solutions to some environmental problems on the other. Some of these aspects, at least, could be replicated in the politics of intellectual property. 43 Ten years ago, when I first offered the environmental analogy, I claimed that intellectual property policy was seen as a contract struck between industry groups--something technical, esoteric, and largely irrelevant to individual citizens, except in that they were purchasers of the products that flowed out of the system. Whether or not that view has ever been tenable, it is not so in a digital age. Instead, I offered the basic argument laid out here--that we needed a "politics of intellectual property" modeled on the environmental movement to create a genuine and informed political debate on intellectual property policy.7 44 So far, I have concentrated on the theoretical and academic tools such a debate would need--focusing particularly on property theory and on economic analysis and its limits. But if there is to be a genuinely democratic politics of intellectual property, we would need an institutional diversity in the policymaking debate that was comparable to that of the environmental movement. 45 Environmentalism presents us with a remarkable diversity of organizational forms and missions. We have Greenpeace, the Environmental Legal Defense Fund, groups of concerned scientists, and the Audubon Society, each with its own methods, groups of supporters, and sets of issues. Yet we also have local and pragmatic coalitions to save a particular bit of green space, using the private tools of covenants and contracts.8 I think we can see the beginnings of the replication of that institutional diversity in the world of intangible property. 46 Ten years ago, civil society had little to offer in terms of groups that represented anything other than an industry position on intellectual property, still less ones that took seriously the preservation of the public domain or the idea that intellectual property policy was a matter of balance, rather than simple maximization of rights. There were the librarians and a few academics. That was about it. This position has changed radically. 47 There are academic centers that concentrate on the theoretical issues discussed in this book--one of them at my university. Thanks in large part to the leadership of Pamela Samuelson, there are law student clinics that do impact litigation on issues such as fair use and that represent underserved clients such as documentarians. But beyond academic work, there are organizations that have dedicated themselves to advocacy and to litigation around the themes of preservation of the public domain, defense of limitations and exceptions in copyright, and the protection of free speech from the effects of intellectual property regulation of both content and the communications infrastructure. The Electronic Frontier Foundation did exist ten years ago, but its coverage of intellectual property issues was only episodic. Its portfolio of litigation and public education on the subject is now nothing short of remarkable. Public Knowledge's valuable lobbying and education is another obvious example. International organizations with similar aims include the Open Rights Group in the United Kingdom.9 48 Organizing has also taken place around particular cases--such as Eldred v. Ashcroft, the challenge to the Sonny Bono Copyright Term Extension Act.10 Activity is not confined to the world of copyright. The Public Patent Foundation combats "patent creep" by exposing and challenging bad patents.11 49 It would be remiss not to mention the international Access to Knowledge, or A2K, movement, inspired by the work of Jamie Love.12 While its focus is on the kinds of issues represented by the access-to-medicines movement, it has made the idea of balance in intellectual property and the protection of the public domain one of its central components. Mr. Love himself is also the central figure behind the idea of a Research and Development Treaty which would amend international trade agreements to make intellectual property merely one of a whole range of economic methods for stimulating innovation.13 His work has touched almost every single one of the movements discussed here. 50 The Access to Knowledge movement has many institutional variants. The Development Agenda at the World Intellectual Property Organization (WIPO), put forward by India and Brazil, includes similar themes, as do the Geneva Declaration and the Adelphi Charter produced by the United Kingdom's Royal Society for the Encouragement of Arts, Manufactures and Commerce.14 History is full of wordy charters and declarations, of course. By themselves they mean little. Yet the level of public and media attention paid to them indicates that intellectual property policy is now of interest beyond a narrow group of affected industries. To underscore this point, several major foundations have introduced intellectual property initiatives, something that would have been inconceivable ten years ago.15 51 Finally, to complete the analogy to the land trust, we have the organizations I mentioned earlier, such as Creative Commons and the Free Software Foundation.16 The latter group pioneered within software the attempt to create a licensed "commons" in which freedoms are guaranteed. The licensed commons replaces the law's default rules with choices made by individuals, the effects of which are magnified by collective action. The end result is a zone of public freedom enabled by private choice. 52 If one looks at these institutions and actors and at the range of issues on which they focus--from software to drug patents, from reverse engineering to access to archival records--the obvious question is, how did they overcome the collective action problem? What ties together a critique of digital locks and the access-to-medicines movement? Again, I think the answer points to the usefulness of the environmental analogy. As I pointed out, the invention of the "environment" trope tied together groups whose interests, considered at a lower level of abstraction, seemed entirely different--hunters and birdwatchers, antipollution protesters and conservation biologists. The idea of the "environment" literally created the self-interest or set of preferences that ties the movement together. The same is true here. Apparently disparate interests are linked by ideas of the protection of the public domain and of the importance of a balance between protection and freedom in cultural and scientific ecology.17 53 But even a broad range of initiatives and institutions would not, in and of themselves, produce results. One must convince people that one's arguments are good, one's institutional innovations necessary, one's horror stories disturbing. Environmentalism has managed to win the battle for clarity--to make its points clearly enough that they ceased to be dismissed as "arcane" or technical, to overcome neglect by the media, to articulate a set of concerns that are those of any educated citizen. The other striking phenomenon of the last ten years is the migration of intellectual property issues off the law reviews or business pages and onto the front pages and the editorial pages. Blogs have been particularly influential. Widely read sites such as Slashdot and Boing-Boing have multiple postings on intellectual property issues each day; some are rants, but others are at a level of sophistication that once would have been confined to academic discussion.18 Scientists passionately debate the importance of open access to scholarly journals. Geographers and climatologists fume over access to geospatial data. The movement has been pronounced enough to generate its own reaction. The popular comics site "xkcd" has strips critical of the Digital Millennium Copyright Act,19 but also a nerdily idyllic picture of a stick figure reclining under a tree and saying, "Sometimes I just can't get outraged over copyright law."20 That cartoon now resides on my computer desktop. (It is under a Creative Commons license, ironically enough.) 54 Who can blame the stick figure? Certainly not I. Is it not silly to equate the protection of the environment with the protection of the public domain? After all, one is the struggle to save a planetary ecology and the other is just some silly argument about legal rules and culture and science. I would be the first to yield primacy to the environmental challenges we are facing. Mass extinction events are to be avoided, particularly if they involve you personally. Yet my willingness to minimize the importance of the rules that determine who owns science and culture goes only so far. 55 A better intellectual property system will not save the planet. On the other hand, one of the most promising sets of tools for building biofuels comes from synthetic biology. Ask some of the leading scientists in that field why they devoted their precious time to trying to work out a system that would offer the valuable incentives that patents provide while leaving a commons of "biobricks" open to all for future development. I worry about these rules naturally; they were forced to do so. A better intellectual property system certainly will not end world hunger. Still it is interesting to read about the lengthy struggles to clear the multiple, overlapping patents on GoldenRiceTM--a rice grain genetically engineered to cure vitamin deficiencies that nearly perished in a thicket of blurrily overlapping rights.21 56 A better intellectual property system will not cure AIDS or rheumatoid arthritis or Huntington's disease or malaria. Certainly not by itself. Patents have already played a positive role in contributing to treatments for the first two, though they are unlikely to help much on the latter two; the affected populations are too few or too poor. But overly broad, or vague, or confusing patents could (and I believe have) hurt all of those efforts--even those being pursued out of altruism. Those problems could be mitigated. Reforms that made possible legal and facilitated distribution of patented medicines in Africa might save millions of lives. They would cost drug companies little. Africa makes up 1.6 percent of their global market. Interesting alternative methods have even been suggested for encouraging investment in treatments for neglected diseases and diseases of the world's poor. At the moment, we spend 90 percent of our research dollars on diseases that affect 10 percent of the global population. Perhaps this is the best we can do, but would it not be nice to have a vigorous public debate on the subject? Some possible innovations are much easier. A simple rule that required the eventual free publication online of all government-funded health research, under open licenses, rather than its sequestration behind the paywalls of commercial journals, could help fuel remarkable innovations in scientific synthesis and computer-aided research while giving citizens access to the research for which they have already paid. 57 Good intellectual property policy will not save our culture. But bad policy may lock up our cultural heritage unnecessarily, leave it to molder in libraries, forbid citizens to digitize it, even though the vast majority of it will never be available publicly and no copyright owner can be found. Would you not prefer the world in which your children could look at the Library of Congress online catalogue and click to get the book or film or song that otherwise languished as an "orphan work"? Good intellectual policy will not necessarily give us great new music. But the policy we have today would make some of the music we most cherish illegal, or at least legally questionable. Does that inspire confidence for the future? As for the World Wide Web, I offer again my thought experiment from the first part of this chapter. Would we be more likely to invent it or forbid it today? We are certainly working busily to change the openness of the general-purpose computer, the neutrality of the network, and the degree of control that content companies can exert over hardware. 58 I do not claim that the issues I have written about here are the most important problem the world faces. That would be ridiculous. But I do claim that they are facets of a very important problem and one to which we are paying far too little attention. 59 I would also be the first to admit that these issues are complicated. Even if we heeded the precepts I have outlined in this book, even if we actually started to look at intellectual property as an empirical question, even if we turned to data rather than faith for our assessments, reasonable people would disagree about much. Some of the most ludicrous recent excesses--huge retrospective copyright term extensions, database rights, proposed webcasting treaties, business method patents--do not pass the laugh test, in my view and that of most scholars. Stopping and then reversing that tide would be valuable, even transformative, but other issues are a closer call. 60 It is also true that we do not have all the tools we need. A lot remains to be done, both academically and practically. We need better evidence. We need property theories that give us as rich a conception of property's outside--of the public domain and the commons--as we have of property itself. We need to rethink some of our policies of international harmonization and reconsider what types of policy actually benefit the developing world. We should explore ways of compensating artists that are very different from the ones we use now, and study the use of distributed creativity and open source in new areas of science and culture. 61 Difficulties aside, I have tried here to show that we need a cultural environmental movement, a politics that enables us first to see and then to preserve the public domain, to understand its contributions to our art, our technology, and our culture. Where is that movement now? 62 There is cause for both concern and optimism. Concern, because it is still hard for courts, legislators, policy makers, and citizens to see beyond the word "property" to the reality underneath. I started this book with the question from my son about the online catalogue of the Library of Congress: "Where do you click to get the book?" In 2003 the Supreme Court heard Eldred v. Ashcroft, the challenge to retrospective copyright term extension. Over two strong dissents, the Court upheld the constitutionality of the act against both First Amendment and Copyright Clause challenges. The dead had their copyrights extended yet again. The widest legal restriction of speech in the history of the Republic--putting off-limits most twentieth- century books, poems, films, and songs for another twenty years without a corresponding speech benefit or incentive--can proceed without significant First Amendment review. Does such a decision mean the task this book undertakes--to take seriously the contributions of the public domain to innovation, culture, and speech--is ultimately doomed, whatever its intellectual merits, to face a hostile or uncomprehending audience? Admittedly, Eldred focused specifically on two particular constitutional claims. Still, the attitude of the majority toward the importance of the public domain--whether in the textual limitations on Congress's power or the application of the First Amendment--can hardly be cause for optimism. And yet . . . The media reaction was remarkable. 63 The New York Times was sufficiently unfamiliar with the term "public domain" that it was not entirely sure whether or not to use the definite article in front of it. But unfamiliarity did not imply complacency. An editorial declared that this decision "makes it likely that we are seeing the beginning of the end of public domain and the birth of copyright perpetuity. Public domain has been a grand experiment, one that should not be allowed to die. The ability to draw freely on the entire creative output of humanity is one of the reasons we live in a time of such fruitful creative ferment."22 The Washington Post, though more inclined to agree that retrospective extension might be constitutional, declared the copyright system to be "broken" in that it "effectively and perpetually protects nearly all material that anyone would want to cite or use. That's not what the framers envisioned, and it's not in the public interest."23 64 I could not agree more. But as I have tried to show here, the process is not limited to copyright, or culture, or texts, or the United States. Think of the stories about business method patents, or synthetic biology, or the regulation of musical borrowing on the atomic level. Think of the discussion of the openness aversion that began this chapter. In the middle of the most successful and exciting experiment in nonproprietary, distributed creativity in the history of the species, our policy makers can see only the threat from "piracy." They act accordingly. Our second enclosure movement is well under way. The poem with which I began Chapter 3 told us: "And geese will still a common lack / Till they go and steal it back." I cannot match the terseness or the rhyme, but if we assume that the enclosure of the commons of the mind will bring us prosperity, great science, and vibrant culture, well, we will look like very silly geese indeed. NOTES Notes: Chapter 1 1. As the suggested further reading indicates, this light- hearted account of the economic basis of intellectual property conceals considerable complexity. On the other hand, the core argument is presented here--and a compelling argument it is. 2. See Jack Hirshleifer, "The Private and Social Value of Information and the Reward to Inventive Activity," American Economic Review 61 (1971): 561-574. 3. Unfortunately, the reality turns out to be less rosy. James Bessen, "Patents and the Diffusion of Technical Information," Economics Letters 86 (2005): 122: "[S]urvey evidence suggests that firms do not place much value on the disclosed information. Moreover, those firms that do read patents do not use them primarily as a source of information on technology. Instead, they use them for other purposes, such as keeping track of competitors or checking for infringement. There are, in fact, sound theoretical reasons why the disclosed information may not be very valuable. [Fritz] Machlup and [Edith] Penrose report that the argument about diffusion is an old one, popular since the mid-19th century. They also point out that, at least through the 1950s, economists have been skeptical about this argument. The problem, also recognized in the mid-19th century, is that 'only unconcealable inventions are patented,' so patents reveal little that could not be otherwise learned. On the other hand, 'concealable inventions remain concealed.' " [Citations omitted.] 4. Felix S. Cohen, "Transcendental Nonsense and the Functional Approach," Columbia Law Review 35 (1935): 817. 5. For contrasting views of the sequence of events, see John Feather, "Publishers and Politicians: The Remaking of the Law of Copyright in Britain 1775-1842," pt. 2, "The Rights of Authors," Publishing History 25 (1989): 45-72; Mark Rose, Authors and Owners: The Invention of Copyright (Cambridge, Mass.: Harvard University Press, 1993). 6. Tim O'Reilly points out that there are 32 million titles in the Online Computer Library Center's "WorldCat" catalogue--this is a reasonable proxy for the number of books in U.S. libraries. Nielsen's Bookscan shows that 1.2 million books sold at least one copy in 2005. This yields a ratio of books commercially available to books ever published of about 4 percent. But of those 1.2 million books, many are in the public domain--think of Shakespeare, Dickens, Austen, Melville, Kipling. Thus the percentage of books that are under copyright and commercially available may actually be considerably lower than 4 percent. See http://radar.oreilly.com/archives/2005/11/oops_only_4_of_titles_ are_bein.html. For a lucid account of the statistics in the context of the Google Book Search Project, see http://lessig.org/blog/2006/01/google_book_search_the_argumen.ht ml. 7. See Barbara Ringer, "Study Number 31: Renewal of Copyright," reprinted in U.S. Senate Committee on the Judiciary, Subcommittee on Patents, Trademarks, and Copyrights, Copyright Law Revision, 86th Cong., 1st Sess., Committee Print (1960), 187. See also HR Rep. 94-1476 (1976), 136; William M. Landes and Richard A. Posner, The Economic Structure of Intellectual Property Law (Cambridge, Mass.: Belknap Press, 2003), 210-212. 8. Details of the orphan works problem can be found in the proposals presented to the copyright office by the Center for the Study of the Public Domain; Orphan Works: Analysis and Proposal: Submission to the Copyright Office--March 2005, available at http://www.law.duke.edu/cspd/pdf/cspdproposal.pdf, and Access to Orphan Films: Submission to the Copyright Office--March 2005, available at http://www.law.duke.edu/cspd/pdf/cspdorphanfilm.pdf. Two recent bills, in the Senate and House, respectively, attempt to address the orphan works problems. The Shawn Bentley Orphan Works Act of 2008, S 2913, 110th Cong. (2008), would add a new section to the Copyright Act limiting remedies for infringement of orphan works and requiring the establishment of a database of pictorial, graphic, and sculptural works. The House bill, The Orphan Works Act of 2008, HR 5889, 110th Cong. (2008), is similar but not identical. While these bills are a good start, the eventual remedy will need to be more sweeping. 9. Bruce Sterling, Heavy Weather (New York: Bantam, 1994): 73 Notes: Chapter 2 1. Letter from Thomas Jefferson to Isaac McPherson (August 13, 1813), in The Writings of Thomas Jefferson, ed. Albert Ellery Bergh (Washington, D.C.: The Thomas Jefferson Memorial Association of the United States, 1907), vol. XIII, 326-338 (hereinafter Letter to McPherson), available at http://memory.loc.gov/ammem/collections/jefferson_papers/mtjser1 .html (follow "May 1, 1812" hyperlink, then navigate to image 1057). 2. For example, attempting to procure a former stable master a position (letter from Thomas Jefferson to Samuel H. Smith [August 15, 1813], available at http://memory.loc .gov/ammem/collections/jefferson_papers/mtjser1.html [follow "May 1, 1812" hyperlink, then navigate to image 1070]), comments on "Rudiments of English Grammar" (letter from Thomas Jefferson to John Waldo [August 16, 1813], in Writings of Thomas Jefferson, vol. XIII, 338-347), orthography of the plurals of nouns ending in "y" (letter from Thomas Jefferson to John Wilson [August 17, 1813], Writings of Thomas Jefferson, vol. XIII, 347-348), accepting the necessary delay in the publication of a study on the anatomy of mammoth bones (letter from Thomas Jefferson to Caspar Wistar [August 17, 1813], available at http://memory.loc.gov/ammem/collections/jefferson_papers/mtjser1 .html [follow "May 1, 1812" hyperlink, then navigate to image 1095]), and discussing the Lewis biography (excerpt of a letter from Thomas Jefferson to Paul Allen [August 18, 1813], Letters of the Lewis and Clark Expedition with Related Documents 1783-1854, ed. Donald Jackson (Urbana: University of Illinois Press, 1962), 586). It is easy, in fact, reading this prodigious outpouring of knowledge and enthusiasm, to forget the other side of Jefferson and the social system that gave him the leisure to write these letters. Just a few weeks before he wrote to McPherson, he wrote a letter to Jeremiah Goodman about a slave called Hercules who had been imprisoned as a runaway. "The folly he has committed certainly justifies further punishment, and he goes in expectation of receiving it. . . ." Letter from Thomas Jefferson to Jeremiah A. Goodman (July 26, 1813), in Thomas Jefferson's Farm Book, ed. Edwin Morris Betts (Charlottesville, Va.: American Philosophical Society, 1999), 36. While leaving the matter up to Goodman, Jefferson argues for leniency and for refraining from further punishment. In that sense, it is a humane letter. But this is one of the authors of the Declaration of Independence, full of glorious principles--unalienable rights; life, liberty, and the pursuit of happiness--enunciated in the context of indignation at relatively mild colonial policies of taxation and legislation. How could a man who thought that taxing tea was tyranny, and that all men had an unalienable right to liberty, believe that it was "folly" justifying "further punishment" for a slave to run away? Reading the letter--a curiously intimate, almost voyeuristic act--one finds oneself saying "What was he thinking?" 3. Letter to McPherson, 333. 4. See Letter from Thomas Jefferson to Abraham Baldwin (April 14, 1802), in Writings of Thomas Jefferson, vol. XIX, 128-129. 5. See Paul Finkelman, Slavery and the Founders: Race and Liberty in the Age of Jefferson, 2nd ed. (Armonk, N.Y.: M. E. Sharpe, 2001), ix; Annette Gordon-Reed, Thomas Jefferson and Sally Hemings: An American Controversy (Charlottesville: University Press of Virginia, 1997) 1, 40-43, 60-61, 222. 6. Letter to McPherson, 336, quoted in John Perry Barlow, "Economy of Ideas," Wired (March 1994): 84. For a careful scholarly explanation of the antimonopolist origins of eighteenth-century ideas such as Jefferson's, see Tyler T. Ochoa and Mark Rose, "The Anti-Monopoly Origins of the Patent and Copyright Clause," Journal of the Copyright Society of the U.S.A. 49 (2002): 675-706. One scholar has offered a thoughtful critique that suggests Jefferson's views were not, in fact, representative either of the times or of the attitudes of the other framers toward intellectual property. See Adam Mossoff, "Who Cares What Thomas Jefferson Thought about Patents? Reevaluating the Patent 'Privilege' in Historical Context," Cornell Law Review 92 (2007): 953-1012. 7. Letter to McPherson, 328. 8. Letter from Thomas Jefferson to Dr. Thomas Cooper (February 10, 1814), in Thomas Jefferson, Writings, ed. Merrill D. Peterson (New York: Library of America, 1984), 1321. 9. Letter to McPherson, 333. 10. Ibid., 333-334. 11. Ibid. 12. Ibid., 335. 13. See ibid., 333-335. 14. Readers interested in learning more about this fascinating man could begin with George Otto Trevelyan, The Life and Letters of Lord Macaulay, London ed. (Longmans, 1876). 15. Thomas Babington Macaulay, speech delivered in the House of Commons (February 5, 1841), in The Life and Works of Lord Macaulay: Complete in Ten Volumes, Edinburgh ed. (Longmans, 1897), vol. VIII, 198 (hereinafter Macaulay Speech). 16. Ibid., 199. 17. Ibid., 198-199. 18. Graham v. John Deere, 383 U.S. 1, 7-11 (1966). 19. Adam Mossoff, "Who Cares What Thomas Jefferson Thought about Patents? Reevaluating the Patent 'Privilege' in Historical Context," Cornell Law Review 92 (2007): 953-1012. In a thoughtful, carefully reasoned, and provocative article, Professor Mossoff argues that Jefferson's views have been misused by the courts and legal historians, and that if we understand the use of the word "privilege" in historical context, we see that the "patent privilege" was influenced by a philosophy of natural rights as well as the antimonopolist utilitarianism described here. I both agree and disagree. Professor Mossoff 's central point--that the word "privilege" was not understood by eighteenth-century audiences as the antonym of "right"--is surely correct. To lay great stress on the linguistic point that the patent right is "merely" a "privilege" is to rest one's argument on a weak reed. But this is not the only argument. One could also believe that intellectual property rights have vital conceptual and practical differences with property rights over tangible objects or land, that the framers of the Constitution who were most involved in the intellectual property clause were deeply opposed to the confusion involved in conflating the two, and that they looked upon this confusion particularly harshly because of an intense concern about state monopolies. One can still disagree with this assessment, of course; one can interpret Madison's words this way or that, or interpret subsequent patent decisions as deep statements of principle or commonplace rhetorical flourishes. Still it seems to me a much stronger argument than the one based on the privilege-right distinction. I am not sure Professor Mossoff would disagree. Professor Mossoff is also correct to point out that a "legal privilege" did sometimes mean to an eighteenth-century reader something that the state was duty-bound to grant. There was, in fact, a wide range of sources from which an eighteenth-century lawyer could derive a state obligation to grant a privilege. Eighteenth-century legal talk was a normative bouillabaisse--a rich stew of natural right, common law, utility, and progress--often thrown together without regard to their differences. Some lawyers and judges thought the common law embodied natural rights, others that it represented the dictates of "progress" and "utility," and others, more confusingly still, seemed to adopt all of those views at once. Nevertheless, I would agree that some eighteenth-century writers saw claims of common-law right beneath the assertion of some "privileges" and that a smaller number of those assumed common- law right and natural right to be equivalent, and thus saw a strong state obligation to grant a particular privilege based on natural right, wherever that privilege had been recognized by English or U.S. common law. But here is where I part company with Professor Mossoff. First, I do not believe that the most important architects of the intellectual property clause shared that view when it came to patents and copyrights. Jefferson, of course, was not one of those who believed the state was so bound. "Society may give an exclusive right to the profits arising from [inventions], as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from any body" (Letter to McPherson, 334, emphasis added). More importantly, Jefferson's thinking about patents was infused by a deeply utilitarian, antimonopolist tinge. So, I would argue, was Madison's. The quotations from Madison which I give later show clearly, to me at least, that Madison shared Jefferson's deeply utilitarian attitude toward patent and copyright law. I think there is very good reason to believe that this attitude was dominant among the Scottish Enlightenment thinkers whose writings were so influential to the framers. I do not think it is an exaggeration to say that the American Revolution was violently against the world of monopoly and corruption that was the supposed target of the English Statute of Monopolies (itself hardly a natural rights document). Yes, those thinkers might fall back into talking about how hard an inventor had worked or construing a patent expansively. Yes, they might think that within the boundaries of settled law, it would be unjust to deny one inventor a patent when the general scheme of patent law had already been laid down. But that did not and does not negate the antimonopolist and, for that matter, utilitarian roots of the Constitution's intellectual property clause. Second, while I agree that there were strands of natural right thinking and a labor theory of value in the U.S. intellectual property system, and that they continue to this day-- indeed, these were the very views that the Feist decision discussed in Chapter 9 repudiated, as late as 1991--I think it is easy to make too much of that fact. Is this signal or noise? There are conceptual reasons to think it is the latter. Later in this chapter I discuss the evolution of the droits d'auteur tradition in France. Here, at the supposed heart of the natural rights tradition, we find thinkers driven inexorably to consider the question of limits. How far does the supposed natural right extend--in time, in space, in subject matter? It is at that moment that the utilitarian focus and the fear of monopoly represented by Jefferson and Madison--and, for that matter, Locke and Condorcet--become so important. Professor Mossoff is correct to criticize the focus on the word "privilege," and also correct that the ideas of natural right and the labor theory of value always color attitudes toward intellectual property claims. But it would be an equal and opposite mistake to ignore two points. First, intellectual property rights are profoundly different from physical property rights over land in ways that should definitively shape policy choices. Second, partly because of those differences, and because of the influence of free-trade Scottish Enlightenment thought on the American Revolution in particular, there was a powerful antimonopolist and free-trade sentiment behind the copyright and patent clause. Simply read the clause. Congress is given the power "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Does this really read like the work of a group of believers in natural right? On the contrary, it reads like a limited grant of power to achieve a particular utilitarian goal. That sentiment-- nicely encapsulated in but by no means limited to the words of Jefferson--is still a good starting place for an understanding of intellectual property. 20. See, e.g., Ochoa and Rose, "Anti-Monopoly Origins," and Edward C. Walterscheid, The Nature of the Intellectual Property Clause: A Study in Historical Perspective (Buffalo, N.Y.: W. S. Hein, 2002). Ochoa, Rose, and Walterscheid stress the antimonopolist concerns that animated some of those who were most active in the debates about intellectual property. They also point out the influence of the English Statute of Monopolies of 1623, which attacked monopolies in general, while making an exception for periods of legal exclusivity for a limited time granted over "sole Working or Making of any Manner of new Manufacture within this Realm, to the first true Inventor or Inventors of such Manufactures which others at the time of the Making of such Letters Patents Grants did not use, so they be not contrary to the Law, nor mischievous to the State, by Raising of the Prices of Commodities at home, or Hurt by Trade, or generally inconvenient." 21. For example, in a letter to Madison commenting on the draft of the Constitution: "I like it, as far as it goes; but I should have been for going further. For instance, the following alterations and additions would have pleased me: . . . Article 9. Monopolies may be allowed to persons for their own productions in literature, and their own inventions in the arts, for a term not exceeding . . . years, but for no longer term, and no other purpose." Letter from Thomas Jefferson to James Madison (August 28, 1789), in Writings of Thomas Jefferson, vol. 7, 450-451. 22. "Monopolies tho' in certain cases useful ought to be granted with caution, and guarded with strictness against abuse. The Constitution of the U.S. has limited them to two cases--the authors of Books, and of useful inventions, in both which they are considered as a compensation for a benefit actually gained to the community as a purchase of property which the owner might otherwise withhold from public use. There can be no just objection to a temporary monopoly in these cases: but it ought to be temporary because under that limitation a sufficient recompence and encouragement may be given. The limitation is particularly proper in the case of inventions, because they grow so much out of preceding ones that there is the less merit in the authors; and because, for the same reason, the discovery might be expected in a short time from other hands. . . . Monopolies have been granted in other Countries, and by some of the States in this, on another principle, that of supporting some useful undertaking, until experience and success should render the monopoly unnecessary, and lead to a salutary competition . . . But grants of this sort can be justified in very peculiar cases only, if at all; the danger being very great that the good resulting from the operation of the monopoly, will be overbalanced by the evil effect of the precedent; and it being not impossible that the monopoly itself in its original operation, may produce more evil than good. In all cases of monopoly, not excepting those in favor of authors and inventors, it would be well to reserve to the State, a right to extinguish the monopoly by paying a specified and reasonable sum. . . . Perpetual monopolies of every sort are forbidden not only by the Genius of free Governments, but by the imperfection of human foresight." James Madison, "Monopolies, Perpetuities, Corporations, Ecclesiastical Endowments" (1819), in "Aspects of Monopoly One Hundred Years Ago," Harper's Magazine, ed. Galliard Hunt, 128 (1914), 489-490; also in "Madison's 'Detatched Memoranda,' " ed. Elizabeth Fleet, William & Mary Quarterly, 3rd series, 3 no. 4 (1946): 551-552, available at http://www.constitution.org/jm/18191213_monopolies.htm. 23. Adam Smith, The Wealth of Nations, pt. 3, Of the Expenses of Public Works and Public Institutions, 2nd ed. (Oxford: Oxford University Press, 1880), 2:339: "When a company of merchants undertake, at their own risk and expense, to establish a new trade with some remote and barbarous nation, it may not be unreasonable to incorporate them into a joint-stock company, and to grant them, in case of their success, a monopoly of the trade for a certain number of years. It is the easiest and most natural way in which the state can recompense them for hazarding a dangerous and expensive experiment, of which the public is afterwards to reap the benefit. A temporary monopoly of this kind may be vindicated, upon the same principles upon which a like monopoly of a new machine is granted to its inventor, and that of a new book to its author. But upon the expiration of the term, the monopoly ought certainly to determine; the forts and garrisons, if it was found necessary to establish any, to be taken into the hands of government, their value to be paid to the company, and the trade to be laid open to all the subjects of the state. By a perpetual monopoly, all the other subjects of the state are taxed very absurdly in two different ways: first, by the high price of goods, which, in the case of a free trade, they could buy much cheaper; and, secondly, by their total exclusion from a branch of business which it might be both convenient and profitable for many of them to carry on." 24. Macaulay Speech, 200-201. 25. Ibid., 201. 26. 17 U.S.C. § 304 (1998). 27. Eldred v. Ashcroft, 537 U.S. 186 (2003). 28. See Brief for Hal Roach Studios and Michael Agee as Amici Curiae Supporting Petitioners, Eldred v. Ashcroft. 29. Sonny Bono Copyright Term Extension Act, Pub. L. No. 105- 298, 112 Stat. 2827 (1998). 30. Brief of George A. Akerlof, Kenneth J. Arrow, Timothy F. Bresnahan, James M. Buchanan, Ronald H. Coase, Linda R. Cohen, Milton Friedman, Jerry R. Green, Robert W. Hahn, Thomas W. Hazlett, C. Scott Hemphill, Robert E. Litan, Roger G. Noll, Richard Schmalensee, Steven Shavell, Hal R. Varian, and Richard J. Zeckhauser as Amici Curiae In Support of Petitioners, Eldred v. Ashcroft, available at http://cyber .law.harvard.edu/openlaw/eldredvashcroft/supct/amici/economists. pdf. 31. U.S. Constitution, art. I, § 8, cl. 8. 32. "These are strong cases. I have shown you that, if the law had been what you are now going to make it, the finest prose work of fiction in the language, the finest biographical work in the language, would very probably have been suppressed. But I have stated my case weakly. The books which I have mentioned are singularly inoffensive books, books not touching on any of those questions which drive even wise men beyond the bounds of wisdom. There are books of a very different kind, books which are the rallying points of great political and religious parties. What is likely to happen if the copyright of one of these books should by descent or transfer come into the possession of some hostile zealot?" Macaulay Speech, 199, 206. 33. Ibid., 205. 34. Ibid., 206. 35. Margaret Mitchell, Gone With the Wind (New York: Macmillan, 1936). 36. SunTrust Bank v. Houghton Mifflin Co., 136 F. Supp. 2d 1357 (N.D.Ga. 2001). For thoughtful commentary see Jed Rubenfeld, "The Freedom of Imagination: Copyright's Constitutionality," Yale Law Journal 112 (2002): 1-60. Robert S. Boynton provides a beautifully readable account of copyright's restrictions in "The Tyranny of Copyright?" The New York Times Magazine (January 25, 2004): 40-45, available at http://www.nytimes.com/2004/01/25/magazine/25COPYRIGHT.html?ex=1 390366800&en= 9eb265b1f26e8b14&ei=5007&partner=USERLAND. 37. Yochai Benkler, "Through the Looking Glass: Alice and Constitutional Foundations of the Public Domain," Law and Contemporary Problems 66 (Winter-Spring 2003): 173. 38. SunTrust Bank v. Houghton Mifflin Co. 268 F.3d 1257 (11th Cir. 2001). 39. See note 19 of this chapter for a discussion of the most recent and thoughtful challenge to this claim. 40. Lord King, The Life of John Locke with Extracts from His Correspondence, Journals and Common-Place Books vol. 1 (London: Henry Colburn, 1830), 379-380. 41. Archives de la Préfecture de Police de Paris, ser. AA, carton 200, feuilles 182-183, "Procès-verbal de police, section de St. Geneviève, 23-24 octobre 1791." Quoted in Carla Hesse, Publishing and Cultural Politics in Revolutionary Paris, 1789-1810 (Berkeley:University of California Press, 1991), 91. 42. Quoted in Hesse, Publishing and Cultural Politics, 100. 43. Victor Hugo, speech to the Conseil d'Etat, September 30, 1849, quoted in Bernard Edelman, Ownership of the Image: Elements for a Marxist Theory of Law (London: Routledge & Kegan Paul, 1979), 41. 44. Oeuvres de Condorcet, ed. A. Condorcet O'Connor and M. F. Arago, vol. 11 (Paris: Firmin Didot Frères, 1847), 308, available at http://books.google.com/books?id-- ZoGAAAAQAAJ. 45. Ibid., 308-309: "En effet, on sent qu'il ne peut y avoir aucun rapport entre la propriété d'un ouvrage et celle d'un champ, qui ne peut être cultivé que par un homme; d'un meuble qui ne peut servir qu'à un homme, et dont, par conséquent, la propriété exclusive est fondée sur la nature de la chose. Ainsi ce n'est point ici une propriété dérivée de l'ordre naturel, et défendue par la force sociale; c'est une propriété fondée par la société même. Ce n'est pas un véritable droit, c'est un privilége, comme ces jouissances exclusives de tout ce qui peut être enlevé au possesseur unique sans violence." 46. Ibid., 309: "Tout privilége est donc une gêne imposée à la liberté, une restriction mise aux droits des autres citoyens; dans ce genre il est nuisible non-seulement aux droits des autres qui veulent copier, mais aux droits de tous ceux qui veulent avoir des copies, et pour qui ce qui en augmente le prix est une injustice. L'intérêt public exige-t-il que les hommes fassent ce sacrifice? Telle est la question qu'il faut examiner; en d'autres termes, les priviléges sont-ils nécessaires, utiles ou nuisibles au progrès des lumières?" 47. James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society (Cambridge, Mass.: Harvard University Press, 1996), 55-57. 48. Hesse, Publishing and Cultural Politics, 121-122. As Hesse points out, this legal legerdemain also produced an interesting transformation in the status of the great authors of the French tradition. "If the Old Regime first accorded Voltaire, Rousseau, or Mirabeau the possibility of legal status as privileged authors with perpetual private lineages for their texts, the Revolution relocated these figures in the public domain, the legal parallel to the civic rituals that unearthed them from private gravesites and reposed their bodily remains in the public temple of the Pantheon." Ibid., 123. One of the central features of the debates described in this book is a starkly different set of characterizations of the public domain. Is it a communist repossession of the sacred rights of authors? The noble common store of knowledge from which all future creators can build? The worthless remainder of material that is no longer worth protecting? 49. Northrop Frye, Anatomy of Criticism: Four Essays (Princeton, N.J.: Princeton University Press, 1957), 96-97. 50. Mark Helprin, "A Great Idea Lives Forever. Shouldn't Its Copyright?" New York Times editorial (May 20, 2007), A12. 51. The two most influential and brilliant examples are Justin Hughes, "The Philosophy of Intellectual Property," Georgetown Law Journal 77 (1988): 287-366, and Wendy J. Gordon, "A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property," Yale Law Journal 102 (1993): 1533-1610. Both of these articles attempt not to use Locke as the basis for a world of absolute right, but instead to focus on the Locke whose world of private property coexisted with a commons--albeit one much diminished after the invention of money. If one goes far enough into the Lockean conception--fine- tuning "enough and as good" so as to allow for a vigorous commons, and the claims of labor so as to take account of the importance of the embedded contributions of culture and science--then the differences between the Jeffersonian view and the Lockean view start to recede in significance. Academics have found the Lockean view attractive, noting, correctly, that Locke is commonly brandished as a rhetorical emblem for property schemes that he himself would have scorned. Yet when one looks at the actual world of intellectual property policy discourse, and the difficulty of enunciating even the simple Jeffersonian antimonopolist ideas I lay out here, it is hard to imagine the nuanced Lockean view flourishing. Consider this comment of Jeremy Waldron's and ask yourself--is this result more likely from within the Jeffersonian or the Lockean view? Our tendency of course is to focus on authors when we think about intellectual property. Many of us are authors ourselves: reading a case about copyright we can empathize readily with a plaintiff's feeling for the effort he has put in, his need to control his work, and his natural desire to reap the fruits of his own labor. In this Essay, however, I shall look at the way we think about actual, potential and putative infringers of copyright, those whose freedom is or might be constrained by others' ownership of songs, plays, words, images and stories. Clearly our concept of the author and this concept of the copier are two sides of the same coin. If we think of an author as having a natural right to profit from his work, then we will think of the copier as some sort of thief; whereas if we think of the author as beneficiary of a statutory monopoly, it may be easier to see the copier as an embodiment of free enterprise values. These are the connections I want to discuss, and my argument will be that we cannot begin to unravel the conundrums of moral justification in this area unless we are willing to approach the matter even-handedly from both sides of the question. After a magisterial study of justifications for the existing world of intellectual property, Waldron concludes, "[t]he fact is, however, that whether or not we speak of a burden of proof, an institution like intellectual property is not self- justifying; we owe a justification to anyone who finds that he can move less freely than he would in the absence of the institution. So although the people whose perspective I have taken--the copiers--may be denigrated as unoriginal plagiarists or thieves of others' work, still they are the ones who feel the immediate impact of our intellectual property laws. It affects what they may do, how they may speak, and how they may earn a living. Of course nothing is settled by saying that it is their interests that are particularly at stake; if the tables were turned, we should want to highlight the perspective of the authors. But as things stand, the would-be copiers are the ones to whom a justification of intellectual property is owed." See Jeremy Waldron, "From Authors to Copiers: Individual Rights and Social Values in Intellectual Property," Chicago-Kent Law Review 68 (1993): 841, 842, 887. That justification seems more plausibly and practically to come from the perspective I sketch out here. See also William Fisher, "Theories of Intellectual Property," in New Essays in the Legal and Political Theory of Property, ed. Stephen R. Munzer (Cambridge: Cambridge University Press, 2001), 168-200. 52. Catherine Seville, Literary Copyright Reform in Early Victorian England: The Framing of the 1842 Copyright Act (Cambridge: Cambridge University Press, 1999), 46-48. 53. Macaulay Speech, 256. 54. This point is made today by a number of authors. See Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom (New Haven, Conn.: Yale University Press, 2006), available at http://www.benkler.org/Benkler_Wealth_Of_Networks.pdf; Neil Weinstock Netanel, "Locating Copyright Within the First Amendment Skein," Stanford Law Review 54 (2001): 1-86; Netanel, "Copyright and a Democratic Civil Society," Yale Law Journal 106 (1996): 283-388; David McGowan, "First Amendment & Copyright Policy," available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=460280; Randal Picker, "Copyright as Entry Policy: The Case of Digital Distribution," Antitrust Bulletin 47 (2002): 423, 424. 55. Quoted in Fritz Machlup and Edith Penrose, "The Patent Controversy in the Nineteenth Century," Journal of Economic History 10, no. 1 (1950): 4, n8. 56. Ironically, contemporary economists are rediscovering the attractions of patent alternatives. A paper by Steven Shavell and Tanguy Van Ypersele is particularly interesting in this regard: "Rewards versus Intellectual Property Rights," NBER Working Paper series, no. 6956, available at http://www.nber.org/papers/w6956. 57. "Governor Thomas was so pleased with the construction of this stove . . . that he offered to give me a patent for the sole vending of them for a term of years; but I declined it from a principle which has ever weighed with me on such occasions, viz.: That, as we enjoy great advantages from the inventions of others, we should be glad of an opportunity to serve others by any invention of ours; and this we should do freely and generously." Benjamin Franklin, Autobiography, in The Works of Benjamin Franklin, ed. John Bigelow, vol. 1 (New York: G. P. Putnam's Sons, 1904), 237-238. 58. Kenneth Arrow, "Economic Welfare and the Allocation of Resources for Invention," in National Bureau of Economic Research, The Rate and Direction of Inventive Activity: Economic and Social Factors (Princeton, N.J.: Princeton University Press, 1962), 609-626. 59. Sanford J. Grossman and Joseph E. Stiglitz, "On the Impossibility of Informationally Efficient Markets," American Economic Review 70 (1980), 393-408; Boyle, Shamans, 35-42. Notes: Chapter 3 1. Apart from being anonymous, this poem is extremely hard to date. It probably originates in the enclosure controversies of the eighteenth century. However, the earliest reference to it that I have been able to discover is from 1821. Edward Birch was moved to compose some (fairly poor) verses in response when he reported "seeing the following jeu d'esprit in a Handbill posted up in Plaistow, as a 'CAUTION' to prevent persons from supporting the intended inclosure of Hainault or Waltham Forest." He then quotes a version of the poem. Edward Birch, Tickler Magazine 3 (February 1821), 45. In 1860, "Exon," a staff writer for the journal Notes and Queries, declares that "the animosity excited against the Inclosure Acts and their authors . . . was almost without precedent: though fifty years and more have passed, the subject is still a sore one in many parishes. . . . I remember some years ago, in hunting over an old library discovering a box full of printed squibs, satires and ballads of the time against the acts and those who were supposed to favor them,--the library having belonged to a gentleman who played an active part on the opposition side." "Exon," "Ballads Against Inclosures," Notes and Queries 9, 2nd series (February 1860): 130-131. He reports finding the poem in that box, and quotes a verse from it. The context of the article makes it appear that the poem itself must date from the late eighteenth century. In other sources, the poem is sometimes dated at 1764, and said to be in response to Sir Charles Pratt's fencing of common land. See, e.g., Dana A. Freiburger, "John Thompson, English Philomath--A Question of Land Surveying and Astronomy," n. 15, available at http://www.nd.edu/~histast4/exhibits/papers/Freiburger/. This attribution is widespread and may well be true, but I have been able to discover no contemporary source material that sustains it. By the end of the nineteenth century, the poem was being quoted, sometimes with amusement and sometimes with agreement, on both sides of the Atlantic. See Ezra S. Carr, "Aids and Obstacles to Agriculture on the Pacific-Coast," in The Patrons of Husbandry on the Pacific Coast (San Francisco: A. L. Bancroft and Co., 1875), 290-291; Edward P. Cheyney, An Introduction to the Industrial and Social History of England (New York: Macmillan, 1901), 219. 2. Although we refer to it as the enclosure movement, it was actually a series of enclosures that started in the fifteenth century and went on, with differing means, ends, and varieties of state involvement, until the nineteenth. See, e.g., J. A. Yelling, Common Field and Enclosure in England, 1450-1850 (Hamden, Conn.: Archon Books, 1977). 3. Thomas More, Utopia (New York: W. J. Black, 1947), 32. 4. Karl Polanyi, Great Transformation: The Political and Economic Origins of Our Time (Boston: Beacon Press, 1957), 35. Polanyi continues in the same vein. "The fabric of society was being disrupted. Desolate villages and the ruins of human dwellings testified to the fierceness with which the revolution raged, endangering the defenses of the country, wasting its towns, decimating its population, turning its overburdened soil into dust, harassing its people and turning them from decent husbandmen into a mob of beggars and thieves." Ibid. See also E. P. Thompson, The Making of the English Working Class (London: V. Gollancz, 1963), 218. 5. See generally Lord Ernle, English Farming Past and Present, 6th ed. (Chicago: Quadrangle Books, 1961). 6. For an excellent summary of the views of Hobbes, Locke, and Blackstone on these points, see Hannibal Travis, "Pirates of the Information Infrastructure: Blackstonian Copyright and the First Amendment," Berkeley Technology Law Journal 15 (2000): 789-803. 7. More recent accounts which argue that enclosure led to productivity gains tend to be more qualified in their praise. Compare the more positive account given in Ernle, English Farming, with Michael Turner, "English Open Fields and Enclosures: Retardation or Productivity Improvements," Journal of Economic History 46 (1986): 688: "Enclosure cannot be seen as the automatic open door to this cycle of agricultural improvement, but the foregoing estimates do suggest that perhaps it was a door which opened frequently, and with profit." 8. Most notably work by Robert C. Allen: "The Efficiency and Distributional Consequences of Eighteenth Century Enclosures," The Economic Journal 92 (1982): 937-953; Enclosure and The Yeoman (New York: Oxford University Press, 1992). Allen argues that the enclosure movement produced major distributional consequences, but little observable efficiency gain. The pie was carved up differently, to the advantage of the landlords, but made no larger. In contrast, Turner sees enclosure as one possible, though not a necessary, route to productivity gains ("English Open Fields," 688). Donald McCloskey's work also argues for efficiency gains from enclosure, largely from the evidence provided by rent increases. Donald N. McCloskey, "The Enclosure of Open Fields: Preface to a Study of Its Impact on the Efficiency of English Agriculture in the Eighteenth Century," Journal of Economic History 32 (1972): 15-35; "The Prudent Peasant: New Findings on Open Fields," Journal of Economic History 51 (1991): 343-355. In Allen's view, however, the increase in rents was largely a measure of the way that changes in legal rights altered the bargaining power of the parties and the cultural context of rent negotiations; enclosure allowed landlords to capture more of the existing surplus produced by the land, rather than dramatically expanding it. "[T]he enclosure movement itself might be regarded as the first state sponsored land reform. Like so many since, it was justified with efficiency arguments, while its main effect (according to the data analysed here) was to redistribute income to already rich landowners." Allen, "Eighteenth Century Enclosures," 950-951. 9. The possibility of producing "order without law" and thus sometimes governing the commons without tragedy has also fascinated scholars of contemporary land use. Robert C. Ellickson, Order without Law: How Neighbors Settle Disputes (Cambridge, Mass.: Harvard University Press, 1991); Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge: Cambridge University Press, 1990). 10. The analogy to the enclosure movement has been too succulent to resist. To my knowledge, Ben Kaplan, Pamela Samuelson, Yochai Benkler, David Lange, Christopher May, David Bollier, and Keith Aoki have all employed the trope, as I myself have on previous occasions. For a particularly thoughtful and careful development of the parallel between the two enclosure movements, see Travis, "Pirates of the Information Infrastructure." 11. See, e.g., William A. Haseltine, "The Case for Gene Patents," Technology Review(September 2000): 59, available at http://www.technologyreview.com/articles/ haseltine0900.asp; cf. Alexander K. Haas, "The Wellcome Trust's Disclosures of Gene Sequence Data into the Public Domain & the Potential for Proprietary Rights in the Human Genome," Berkeley Technology Law Journal 16 (2001): 145-164. 12. See, e.g., Haseltine, "The Case for Gene Patents"; Biotechnology Industry Association, "Genentech, Incyte Genomics Tell House Subcommittee Gene Patents Essential for Medical Progress," available at http://www.bio.org/news/newsitem.asp?id?2000_ 0713 _01. 13. See, e.g., Howard Markel, "Patents Could Block the Way to a Cure," New York Times (August 24, 2001), A19. For the general background to these arguments, see Rebecca S. Eisenberg, "Patenting the Human Genome," Emory Law Journal 39 (1990): 740-744. 14. 793 P.2d 479, 488-497 (Cal. 1990). 15. Ibid., 493-494. One imagines Styrofoam coolers criss- crossing the country by FedEx in an orgy of communistic flesh- swapping. 16. Ibid., 493. 17. I might be suspected of anti-economist irony here. In truth, neither side's arguments are fully satisfying. It is easy to agree with Richard Posner that the language of economics offers a "thin and unsatisfactory epistemology" through which to understand the world. Richard Posner, The Problems of Jurisprudence (Cambridge, Mass.: Harvard University Press, 1990): xiv (quoting Paul Bator, "The Judicial Universe of Judge Richard Posner," University of Chicago Law Review 52 (1985): 1161). On the other hand, explaining what it means to "own one's own body," or specifying the noncommodifiable limits on the market, turns out to be a remarkably tricky business, as Margaret Jane Radin has shown with great elegance in Contested Commodities (Cambridge, Mass.: Harvard University Press, 1996). 18. Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the Legal Protection of Databases, 1996 Official Journal of the European Union (L 77) 20, available at http://europa.eu.int/ISPO/infosoc/legreg/docs/969ec.html. 19. The phrase "Washington consensus" originated in John Williamson, "What Washington Means by Policy Reform," in Latin American Adjustment: How Much Has Happened? ed. John Williamson (Washington, D.C.: Institute for International Economics, 1990). Over time it has come to be used as shorthand for a neoliberal view of economic policy that puts its faith in deregulation, privatization, and the creation and defense of secure property rights as the cure for all ills. (See Joseph Stiglitz, "The World Bank at the Millennium," Economic Journal 109 [1999]: 577-597.) It has thus become linked to the triumphalist neoliberal account of the end of history and the victory of unregulated markets: see Francis Fukuyama, The End of History and the Last Man (New York: Free Press, 1992). Neither of these two results are, to be fair, what its creator intended. See John Williamson, "What Should the Bank Think about the Washington Consensus?" Institute for International Economics (July 1999), available at http://www.iie.com/publications/papers/paper.cfm?ResearchID=351. 20. Garrett Hardin, "The Tragedy of the Commons," Science 162 (1968): 1243-1248. 21. The differences are particularly strong in the arguments over "desert"--are these property rights deserved or are they simply violations of the public trust, privatizations of the commons? For example, some would say that we never had the same traditional claims over the genetic commons that the victims of the first enclosure movement had over theirs; this is more like newly discovered frontier land, or perhaps even privately drained marshland, than it is like well-known common land that all have traditionally used. In this case, the enclosers can claim (though their claims are disputed) that they discovered or perhaps simply made usable the territory they seek to own. The opponents of gene patenting, on the other hand, turn more frequently than the farmers of the eighteenth century to religious and ethical arguments about the sanctity of life and the incompatibility of property with living systems. These arguments, or the appeals to free speech that dominate debates over digital intellectual property, have no precise analogue in debates over hunting or pasturage, though again there are common themes. For example, we are already seeing nostalgic laments of the loss of the immemorial rights of Internet users. At the same time, the old language of property law is turned to this more evanescent subject matter; a favorite title of mine is I. Trotter Hardy, "The Ancient Doctrine of Trespass to Web Sites," 1996, art. 7, Journal of Online Law art. 7, available at http://www.wm.edu/law/publications/jol/95_96/hardy.html. 22. The exceptions to this statement turn out to be fascinating. In the interest of brevity, however, I will ignore them entirely. 23. Remember, I am talking here about increases in the level of rights: protecting new subject matter for longer periods of time, criminalizing certain technologies, making it illegal to cut through digital fences even if they have the effect of foreclosing previously lawful uses, and so on. Each of these has the effect of diminishing the public domain in the name of national economic policy. 24. James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Societ (Cambridge, Mass.: Harvard University Press, 1996), 29; William M. Landes and Richard A. Posner, "Economic Analysis of Copyright Law," Journal of Legal Studies 18 (1989): 325; Pamela Samuelson and Suzanne Scotchmer, "The Law & Economics of Reverse Engineering," Yale Law Journal 111 (2002): 1575-1664; Jessica Litman, "The Public Domain," Emory Law Journal 39 (1990): 1010-1011. 25. Sanford J. Grossman and Joseph E. Stiglitz, "On the Impossibility of Informationally Efficient Markets," American Economic Review 70 (1980): 404. 26. For a more technical account, see James Boyle, "Cruel, Mean, or Lavish? Economic Analysis, Price Discrimination and Digital Intellectual Property," Vanderbilt Law Review 53 (2000): 2007-2039. 27. The most recent example of this phenomenon is multiple legal roadblocks in bringing GoldenRice to market. For a fascinating study of the various issues involved and the strategies for working around them, see R. David Kryder, Stanley P. Kowalski, and Anatole F. Krattiger, "The Intellectual and Technical Property Components of Pro-Vitamin A Rice (GoldenRiceTM): A Preliminary Freedom-to-Operate Review," ISAAA Briefs No. 20 (2000), available at http://www.isaaa.org/Briefs/20/briefs.htm. In assessing the economic effects of patents, one has to balance the delays and increased costs caused by the web of property rights against the benefits to society of the incentives to innovation, the requirement of disclosure, and the eventual access to the patented subject matter. When the qualification levels for patents are set too low, the benefits are minuscule and the costs very high--the web of property rights is particularly tangled, complicating follow-on innovation, the monopoly goes to "buy" a very low level of inventiveness, and the disclosure is of little value. 28. Michael A. Heller and Rebecca S. Eisenberg, "Can Patents Deter Innovation? The Anticommons in Biomedical Research," Science 280 (1998): 698-701. 29. Int'l News Serv. v. Associated Press, 248 U.S. 215, 250 (1918) (Brandeis, J., dissenting). 30. Yochai Benkler, "Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain," New York University Law Review 74 (1999): 354, 361, 424. 31. The so-called "business method" patents, which cover such "inventions" as auctions or accounting methods, are an obvious example. See, e.g., State St. Bank & Trust Co. v. Signature Fin. Group, Inc., 149 F.3d 1368, 1373 (Fed. Cir. 1998). 32. Database Investment and Intellectual Property Antipiracy Act of 1996, HR 3531, 104th Cong. (1996); Collections of Information Antipiracy Act, S 2291, 105th Cong. (1998). 33. See, e.g., Feist Publications v. Rural Tel. Serv. Co., 499 U.S. 340, 350 (1991): "Copyright treats facts and factual compilations in a wholly consistent manner. Facts, whether alone or as part of a compilation, are not original and therefore may not be copyrighted." To hold otherwise "distorts basic copyright principles in that it creates a monopoly in public domain materials without the necessary justification of protecting and encouraging the creation of 'writings' by 'authors.' " Ibid., at 354. 34. See Eisenberg, "Patenting the Human Genome"; Haas, "Wellcome Trust's Disclosures." 35. Those who prefer topographical metaphors might imagine a quilted pattern of public and private land, with legal rules specifying that certain areas, beaches say, can never be privately owned, and accompanying rules giving public rights of way through private land if there is a danger that access to the commons might otherwise be blocked. 36. See Jessica Litman, Digital Copyright: Protecting Intellectual Property on the Internet (Amherst, N.Y.: Prometheus Books, 2001). 37. See James Boyle, "Intellectual Property Policy Online: A Young Person's Guide," Harvard Journal of Law & Technology 10 (1996): 47-112. 38. American Geophysical Union v. Texaco, 37 F.3d 882 (2nd Cir. 1994). 39. Los Angeles Times v. Free Republic, 2000 U.S. Dist. LEXIS 5669, 54 U.S.P.Q.2D 1453 (C.D. Cal. 2000). 40. eBay, Inc. v. Bidder's Edge, Inc., 100 F. Supp. 2d 1058 (N.D. Cal. 2000). 41. Kelly v. Arriba Soft, 336 F.3d 811 (9th Cir. 2003). After initially holding that while thumbnails were fair use, inline links that displayed pictures were not fair use, the court reversed itself and found fair use in both instances. 42. After a District Court issued a temporary injunction telling Static Controls that it must cease manufacturing generic toner cartridges that operated in Lexmark printers--indicating it was likely to be found to be violating the Digital Millennium Copyright Act's "anti-circumvention" provisions--the Appeals Court held that such cartridges did not in fact violate the DMCA. Lexmark International, Inc. v. Static Control Components, Inc., 387 F.3d 522 (6th Cir. 2004). 43. Madey v. Duke Univ., 307 F.3d 1351 (Fed. Cir. 2003), cert. denied, 539 U.S. 958 (2003). 44. "When scientists from Princeton University and Rice University tried to publish their findings [on the vulnerabilities in a copy protection scheme] in April 2001, the recording industry claimed that the 1998 Digital Millennium Copyright Act (DMCA) makes it illegal to discuss or provide technology that might be used to bypass industry controls limiting how consumers can use music they have purchased. 'Studying digital access technologies and publishing the research for our colleagues are both fundamental to the progress of science and academic freedom,' stated Princeton scientist Edward Felten. 'The recording industry's interpretation of the DMCA would make scientific progress on this important topic illegal.' . . . "SDMI sponsored the 'SDMI Public Challenge' in September 2000, asking Netizens to try to break their favored watermark schemes, designed to control consumer access to digital music. When the scientists' paper about their successful defeat of the watermarks, including one developed by a company called Verance, was accepted for publication, Matt Oppenheim, an officer of both RIAA and SDMI, sent the Princeton professor a letter threatening legal liability if the scientist published his results." "EFF Media Release: Princeton Scientists Sue Over Squelched Research," available at http://w2.eff.org/IP/DMCA/Felten_v_RIAA/20010606_eff_felten_pr.h tml. After a First Amendment challenge to the relevant provisions of the DMCA, the threats were withdrawn. 45. See, e.g., Robert P. Merges, "As Many as Six Impossible Patents before Breakfast: Property Rights for Business Concepts and Patent System Reform," Berkeley Technology Law Journal 14 (1999): 615. Notes: Chapter 4 1. For the background to these documents see James Boyle, "Intellectual Property Policy Online: A Young Person's Guide," Harvard Journal of Law & Technology 10 (1996): 47-112; Jessica Litman, Digital Copyright: Protecting Intellectual Property on the Internet (Amherst, N.Y.: Prometheus Books, 2001). 2. Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified as amended in scattered sections of 5, 17, 28, and 35 U.S.C.). 3. Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights (Washington, D.C.: Information Infrastructure Task Force, 1995), 73 n. 227. Hereinafter White Paper. 4. White Paper, 84. 5. "Congress did not provide that one class in the community could combine to restrain interstate trade and another class could not. . . . It provided that 'every' contract, combination or conspiracy in restraint of trade was illegal." Loewe v. Lawlor, 208 U.S. 274 (1908); "Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country, was to leave the country a wilderness. . . ." Johnson v. M'Intosh, 21 U.S. 543, 590 (1823). 6. "As the entertainment and information markets have gotten more complicated, the copyright law has gotten longer, more specific, and harder to understand. Neither book publishers nor libraries have any interest in making the library privilege broad enough so that it would be useful to users that aren't libraries, and neither movie studios nor broadcast stations have any interest in making the broadcaster's privilege broad enough to be of some use to say, cable television or satellite TV, so that doesn't happen. Negotiated privileges tend to be very specific, and tend to pose substantial entry barriers to outsiders who can't be at the negotiating table because their industries haven't been invented yet. So negotiated copyright statutes have tended, throughout the century, to be kind to the entrenched status quo and hostile to upstart new industries." Litman, Digital Copyright, 25. 7. Communications Decency Act of 1996 (47 U.S.C. §§ 230, 560, 561) (1996). 8. Reno v. ACLU, 521 U.S. 844 (1997). 9. James Boyle, "Overregulating the Internet," Washington Times (November 14, 1995), A17. 10. See James Boyle, "The One Thing Government Officials Can't Do Is Threaten Their Critics," Washington Times (March 6, 1996), A16. 11. "The DFC was forged in 1995 in response to the release of the Clinton administration's White Paper on Intellectual Property and the National Information Infrastructure. The White Paper recommended significantly altering existing copyright law to increase the security of ownership rights for creators of motion pictures, publishers and others in the proprietary community. Members of the DFC recognized that if the policy proposals delineated in the White Paper were implemented, educators, businesses, libraries, consumers and others would be severely restricted in their efforts to take advantage of the benefits of digital networks." See http://www.dfc.org/dfc1/Learning_Center/about.html. 12. See the classic account in Mancur Olson, The Logic of Collective Action: Public Goods and the Theory of Groups, 2nd ed. (Cambridge, Mass.: Harvard University Press, 1971). 13. See note 2 above. 14. Pub. L. No. 105-147, 111 Stat. 2678 (1997) (codified as amended in scattered sections of 17 and 18 U.S.C.). 15. Pub. L. No. 105-298, 112 Stat. 2827 (1998) (codified as amended in scattered sections of 17 U.S.C.). 16. S 2291, 105th Cong. (1998). 17. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984). 18. See Tina Balio, Museum of Broadcast Communications, "Betamax Case," Encyclopedia of TV (1997), available at http://www.museum.tv/archives/etv/B/htmlB/betamaxcase/ betamaxcase.htm ("The Betamax case went all the way to the Supreme Court, which reversed the appeals court decision on 17 January 1984. By 1986, VCRs had been installed in fifty percent of American homes and annual videocassettes sales surpassed the theatrical box-office."). The year 1986 was also the peak of the video rental market: "Video's high mark, according to studies by A. C. Nielsen Media Research, was in late 1986, when an estimated 34.3 million households with VCR's took home 111.9 million cassettes a month, or an average of 3.26 movies per household." Peter M. Nichols, "Movie Rentals Fade, Forcing an Industry to Change its Focus," New York Times (May 6, 1990), A1. 19. For background, see Wendy Gordon, "Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and Its Predecessors," Columbia Law Review 82 (1982): 1600-1657. For accounts that imagine a reduction of fair use as transaction costs fall, see Edmund W. Kitch, "Can the Internet Shrink Fair Use?," Nebraska Law Review 78 (1999): 880-890; Robert P. Merges, "The End of Friction? Property Rights and the Contract in the 'Newtonian' World of On-Line Commerce," Berkeley Technology Law Journal 12 (1997): 115-136. This argument has hardly gone unanswered with articles pointing out that it neglects both the social values of fair use and the actual economics of its operation. See Jonathan Dowell, "Bytes and Pieces: Fragmented Copies, Licensing, and Fair Use in A Digital World," California Law Review 86 (1998): 843-878; Ben Depoorter and Francesco Parisi, "Fair Use and Copyright Protection: A Price Theory Explanation," International Review of Law and Economics 21 (2002): 453-473. 20. "I believe the answer to the question of justification turns primarily on whether, and to what extent, the challenged use is transformative. The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original." Pierre N. Leval, "Toward a Fair Use Standard," Harvard Law Review 103 (1990): 1111. 21. See Neil Weinstock Netanel, "Locating Copyright Within the First Amendment Skein," Stanford Law Review 54 (2001): 1-86; Yochai Benkler, "Free As the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain," New York University Law Review 74 (1999): 354-446; Larry Lessig, Melville B. Nimmer Memorial Lecture: "Copyright's First Amendment" (March 1, 2001), in UCLA Law Review 48 (2001): 1057-1074; Melville B. Nimmer, "Does Copyright Abridge the First Amendment Guaranties of Free Speech and the Press?" UCLA Law Review 17 (1970): 1180-1204. 22. Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992); Atari Games Corp. v. Nintendo of America Inc., 975 F.2d 832 (Fed. Cir. 1992). 23. Sony 464 U.S. at 441 n. 21. 24. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001). 25. A&M Records v. Napster: C-SPAN Videotape 159534, Part 1 of 1 (October 2, 2000). 26. Felix Oberholzer-Gee and Koleman Strumpf, "The Effect of File Sharing on Record Sales: An Empirical Analysis," Journal of Political Economy 115, no. 1 (2007): 1-42. 27. Stan J. Liebowitz, "How Reliable Is the Oberholzer-Gee and Strumpf Paper on File-Sharing?" available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id?1014399. 28. Rafael Rob and Joel Waldfogel, "Piracy on the High C's: Music Downloading, Sales Displacement, and Social Welfare in a Sample of College Students," available at http://www.law.upenn.edu/polk/dropbox/waldfogel.pdf. 29. M. Peitz and P. Waelbroeck, "The Effect of Internet Piracy on Music Sales: Cross-Section Evidence," Review of Economic Research on Copyright Issues (December 2004): 71-79, available at http://www.serci.org/docs_1_2/waelbroeck.pdf. For an excellent general discussion see Rufus Pollock's summary of the empirical evidence at http://www.rufuspollock.org/economics/p2p_summary.html. 30. MGM Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005). 31. J. H. Saltzer, D. P. Reed, and D. D. Clark, "End-to-End Arguments in System Design," ACM Transactions on Computer Systems (November 1984): 277. 32. Technically, this discussion fuses components of the Internet--its transfer protocols, for example--with aspects of the World Wide Web, the set of linked hypertext documents assembled on top of it. Notes: Chapter 5 1. Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified as amended in scattered sections of 5, 17, 28, and 35 U.S.C.). 2. See Electronic Frontiers Foundation, "Unintended Consequences," available at http://www.eff.org/wp/unintended- consequences-seven-years-under-dmca. 3. See DVD Copy Control Association, "Frequently Asked Questions," available at http://www.dvdcca.org/faq.html. 4. Thomas Mennecke, "Slyck.com Interviews Jon Lech Johansen" (April 4, 2005), available at http://www.slyck.com/news.php?story=733. 5. As is often the way, these pages have now been modified on Wikipedia. At the time of writing, this excerpt can still be found at http://www.indopedia.org/Eric_Corley.html. 6. Abraham Lincoln, Lecture on Discoveries and Inventions (April 6, 1858), available at http://showcase.netins.net/web/creative/lincoln/speeches/discove ries.htm. 7. See Neil Weinstock Netanel, "Locating Copyright Within the First Amendment Skein," Stanford Law Review 54 (2001): 15 (citing Houghton Mifflin Co. v. Noram Publ'g Co., 28 F. Supp. 676 (S.D.N.Y. 1939); Houghton Mifflin Co. v. Stackpole Sons, Inc., 104 F.2d 306 (2nd Cir. 1939) (upholding the validity of the U.S. copyright in Mein Kampf ); Anthony O. Miller, "Court Halted Dime Edition of 'Mein Kampf': Cranston Tells How Hitler Sued Him and Won," Los Angeles Times, February 14, 1988, § 1, 4 (giving Cranston's version of the case's underlying facts)). 8. The Corley court was uncertain about this point. ("Preliminarily, we note that the Supreme Court has never held that fair use is constitutionally required, although some isolated statements in its opinions might arguably be enlisted for such a requirement."). Universal City Studios v. Corley, 273 F.3d 429, 458 (2d Cir. 2001). In my view, both logic and those "isolated statements" suggest that fair use is required. As I point out later, when the Supreme Court revisited the matter in the case of Eldred v. Ashcroft, 537 U.S. 186 (2003), it stressed that it was precisely the internal limitations such as fair use that made copyright law normally immune to First Amendment scrutiny. The Court added "when . . . Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary." Ibid. at 221 (citing Harper & Row, 471 U.S. at 560). Yet that is exactly what the DMCA does: alters "the traditional contours of copyright protection" by handing out the exclusive right at the same time as it confers a legal power to remove the privilege of fair use. 9. See Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294, 304-5 (S.D.N.Y. 2000). 10. Ibid., 329-30 (quoting Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 662 (1997) (quoting U.S. v. O'Brien, 391 U.S. 367, 377 (internal quotations omitted)). 11. Ibid., 331-332. 12. One empirical study seems to challenge this assumption, though at modest levels. Rafael Rob and Joel Waldfogel, "Piracy on the Silver Screen," Journal of Industrial Economics 55 (2007): 379-395. Rob and Waldfogel surveyed college students--traditionally a population that engages in high levels of downloading since they have "free" and extremely high speed Internet connections, lots of leisure time, and low disposable income. Even among this group, the authors found that total levels of downloading were low--2.1 percent of paid consumption. The authors also assumed that all unpaid downloading or DVD burning was equal to piracy--an assumption that is clearly false. The Sony case makes that clear. In fact, Rob and Waldfogel found a positive relationship between second time unpaid viewings and future paid viewings; watching the movie a second time on a downloaded or privately made copy burned from the airwaves actually was associated with more paid purchases. The authors were skeptical of any causal link, however. Ibid., 389. 13. Admittedly, section 1201 only affects works protected under the copyright act, so arguably the legal protection of the digital fence would expire with the copyright term. But even if the courts interpreted the statute this way, two problems would remain. First, since the DMCA prohibited the trafficking in tools which allowed the breaking of the encryption, the law would have effectively forbidden the production of wire cutters for gaining access to identically encrypted public domain works--remember Judge Kaplan's discussion of the irrelevance of Mr. Johansen's motives. Second, it would be trivially easy to add a trivial amount of new copyrighted material to the work that had fallen into the public domain. Access to the public domain work would then be prohibited for another period of life plus seventy years. And so on. The Copyright Office holds hearings on the question of whether there are any "classes of work" that need exemption from the DMCA's provisions. So far, those exemptions have been highly restrictive in application. 14. Eldred v. Ashcroft, 537 U.S. 186 (2003) at 221 (citing Harper & Row, 471 U.S. at 560). 15. Rob Pegoraro, "RealPlayer's iPod-Compatible Update 'Stunned' Apple," Washington Post (August 8, 2004), F6. 16. Lexmark, Int'l v. Static Control Companies, Inc., 387 F.3d 522 (6th Cir. 2004). 17. Chamberlain Group, Inc. v. Skylink Tech., Inc., 381 F.3d 1178 (Fed. Cir. 2004). This of course was exactly the claim that Mr. Corley's lawyers made, to no avail. Notes: Chapter 6 1. Lisa de Moraes, "Kanye West's Torrent of Criticism, Live on NBC," Washington Post (September 3, 2005), C1, available at http://www.washingtonpost.com/wp- dyn/content/article/2005/09/03/AR2005090300165.html. 2. John Leland, "Art Born of Outrage in the Internet Age," New York Times (September 25, 2005), D3. 3. Ray Charles and David Ritz, Brother Ray: Ray Charles' Own Story (Cambridge, Mass.:Da Capo Press, 1978), 86. 4. Robert W. Stephens, "Soul: A Historical Reconstruction of Continuity and Change in Black Popular Music," The Black Perspective in Music 12, no. 1 (Spring 1984): 32. 5. Forever Ray, available at http://www.raycharles.com/the_man_biography.html. 6. Michael Lydon, Ray Charles (New York: Routledge, 2004), 419: "Arnold Shaw, in The Rockin' 50's says that 'I Got a Woman' is based on Jesus is All the World to Me. Because Renald Richard left Ray's band before the song was recorded, he was not at first properly credited: some record labels list [Ray Charles] alone as the songwriter. Richard, however, straightened that out with Atlantic, and he has for many years earned a substantial income from his royalties." 7. See Stephens, "Soul," 32. The standard biographical literature also repeats the same story: In 1954 an historic recording session with Atlantic records fused gospel with rhythm-and-blues and established Charles' "sweet new style" in American music. One number recorded at that session was destined to become his first great success. Secularizing the gospel hymn "My Jesus Is All the World to Me," Charles employed the 8- and 16-measure forms of gospel music, in conjunction with the 12-measure form of standard blues. Charles contended that his invention of soul music resulted from the heightening of the intensity of the emotion expressed by jazz through the charging of feeling in the unbridled way of gospel. "Ray Charles," Encyclopedia of World Biography, 2nd ed., vol. 3 (Detroit, Mich.: Gale Research, 1998), 469. Popular accounts offer the same story: This young, blind, black, gravelly-voiced singer brought together the most engaging aspects of black music into one form and began the process of synthesis that led to soul and, ultimately, funk a decade later. He would turn around gospel standards like "My Jesus Is All the World to Me," recreating it as "I Got a Woman[.]" Ricky Vincent, Funk: The Music, The People, and the Rhythm of the One (New York: St. Martin's Griffin, 1996), 121. See also Joel Hirschhorn, The Complete Idiot's Guide to Songwriting (New York: Alpha Books, 2004), 108: "I Got a Woman was Ray's rewrite of 'My Jesus Is All the World to Me.' " Charles himself was more equivocal about the origins of the song: So I was lucky. Lucky to have my own band at this point in my career. Lucky to be able to construct my musical building to my exact specifications. And lucky in another way: While I was stomping around New Orleans, I had met a trumpeter named Renolds [sic] Richard who by thus time was in my band. One day he brought me some words to a song. I dressed them up a little and put them to music. The tune was called "I Got a Woman," and it was another of those spirituals which I refashioned in my own way. I Got a Woman was my first real smash, much bigger than ["]Baby Let Me Hold Your Hand[.]" This spiritual-and-blues combination of mine was starting to hit. Charles and Ritz, Brother Ray, 150. 8. See Lydon, Ray Charles, 419. 9. James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society (Cambridge, Mass.: Harvard University Press, 1996). 10. James Henke, Holly George-Warren, Anthony Decurtis, and Jim Miller, The Rolling Stone Illustrated History of Rock and Roll: The Definitive History of the Most Important Artists and Their Music (New York: Random House, 1992), 130. 11. Great American Country, "Ray Charles Biography," available at http://www.gactv.com/gac/ar_artists_a- z/article/0,,GAC_26071_4888297,00.html. 12. "His 1955 smash 'I've Got a Woman,' for example, was adapted from a gospel number he'd liked called 'I've Got a Savior.' " Chip Deffaa, Blue Rhythms: Six Lives in Rhythm and Blues (Urbana: University of Illinois Press, 1996), 161. 13. Columbia Catalog Number CO45097, available at http://settlet.fateback.com/COL30000.htm. 14. J. C. Marion, "Ray Charles: The Atlantic Years," JammUpp 2 no. 32 (2004): 32, http://home.earthlink.net/~v1tiger/jammuppvol2.html. 15. "If one can pinpoint a moment when gospel and blues began to merge into a secular version of gospel song, it was in 1954 when Ray Charles recorded 'My Jesus Is All the World to Me,' changing its text to 'I Got A Woman.' The following year, he changed Clara Ward's 'This Little Light of Mine' to 'This Little Girl of Mine.' " Stephens, "Soul," 32. 16. Robert Lashley, "Why Ray Charles Matters," Blogcritics Magazine, December 17, 2005, http://blogcritics.org/archives/2005/12/17/032826.php: But it was the staggering, nearly byzantine ambition that encompassed Charles' musical mind which is the foundation for his art. You can hear it in his first imprint on the pop music world, 1955's I Got A Woman. The shuffling big beat borrows from Louis Jordan's big band fusion, the backbeat is 2/4 gospel. The arrangement is lucid, not quite jazz, not quite blues, definitely not rock and roll but something sophisticated altogether. The emotions are feral, but not quite the primitiveness of rock and roll. It is the sound of life, a place where there is an ever flowing river of cool. It, you might ask? Rhythm and Blues, Ray Charles' invention. A volcano bubbling under the surface, Ray spent the mid 50's crafting timeless songs as if there were cars on an assembly[.] Start with the blasphemous fusion of Hallelujah I [L]ove Her So and This Little Girl of Mine, where Ray changes the words from loving god to loving a woman, yet, in the intensity of his performance, raises the question if he's still loving the same thing. The anonymous encyclopedists at Wikipedia agree: Many of the most prominent soul artists, such as Aretha Franklin, Marvin Gaye, Wilson Pickett and Al Green, had roots in the church and gospel music and brought with them much of the vocal styles of artists such as Clara Ward and Julius Cheeks. Secular songwriters often appropriated gospel songs, such as the Pilgrim Travelers' song "I've Got A New Home," which Ray Charles turned into "Lonely Avenue," or "Stand By Me," which Ben E. King and Lieber and Stoller adapted from a well-known gospel song, or Marvin Gaye's "Can I Get A Witness," which reworks traditional gospel catchphrases. In other cases secular musicians did the opposite, attaching phrases and titles from the gospel tradition to secular songs to create soul hits such as "Come See About Me" for the Supremes and "991?2Won't Do" for Wilson Pickett. "Urban Contemporary Gospel," Wikipedia, http://en.wikipedia.org/wiki/urban_contemporary_gospel. 17. Northrop Frye, Anatomy of Criticism: Four Essays (Princeton, N.J.: Princeton University Press, 1957), 96-97. 18. John Leland, "Art Born of Outrage in the Internet Age," New York Times (September 25, 2005), D3. 19. Grand Upright Music, Ltd. v. Warner Bros. Records, Inc., 780 F. Supp. 182 (S.D.N.Y. 1991). 20. Ibid., 183. 21. Kembrew McLeod, Owning Culture: Authorship, Ownership and Intellectual Property Law (New York: Peter Lang, 2001), and Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity (New York: New York University Press, 2001). 22. Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 804n16 (6th Cir. 2005). 23. Walter Benjamin, "The Work of Art in the Age of Mechanical Reproduction," in Illuminations: Essays and Reflections, ed. Hannah Arendt, trans. Harry Zohn (New York: Harcourt, Brace & World, 1968), 217-42. 24. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 583 (1994). Notes: Chapter 6 1. Lisa de Moraes, "Kanye West's Torrent of Criticism, Live on NBC," Washington Post (September 3, 2005), C1, available at http://www.washingtonpost.com/wp- dyn/content/article/2005/09/03/AR2005090300165.html. 2. John Leland, "Art Born of Outrage in the Internet Age," New York Times (September 25, 2005), D3. 3. Ray Charles and David Ritz, Brother Ray: Ray Charles' Own Story (Cambridge, Mass.:Da Capo Press, 1978), 86. 4. Robert W. Stephens, "Soul: A Historical Reconstruction of Continuity and Change in Black Popular Music," The Black Perspective in Music 12, no. 1 (Spring 1984): 32. 5. Forever Ray, available at http://www.raycharles.com/the_man_biography.html. 6. Michael Lydon, Ray Charles (New York: Routledge, 2004), 419: "Arnold Shaw, in The Rockin' 50's says that 'I Got a Woman' is based on Jesus is All the World to Me. Because Renald Richard left Ray's band before the song was recorded, he was not at first properly credited: some record labels list [Ray Charles] alone as the songwriter. Richard, however, straightened that out with Atlantic, and he has for many years earned a substantial income from his royalties." 7. See Stephens, "Soul," 32. The standard biographical literature also repeats the same story: In 1954 an historic recording session with Atlantic records fused gospel with rhythm-and-blues and established Charles' "sweet new style" in American music. One number recorded at that session was destined to become his first great success. Secularizing the gospel hymn "My Jesus Is All the World to Me," Charles employed the 8- and 16-measure forms of gospel music, in conjunction with the 12-measure form of standard blues. Charles contended that his invention of soul music resulted from the heightening of the intensity of the emotion expressed by jazz through the charging of feeling in the unbridled way of gospel. "Ray Charles," Encyclopedia of World Biography, 2nd ed., vol. 3 (Detroit, Mich.: Gale Research, 1998), 469. Popular accounts offer the same story: This young, blind, black, gravelly-voiced singer brought together the most engaging aspects of black music into one form and began the process of synthesis that led to soul and, ultimately, funk a decade later. He would turn around gospel standards like "My Jesus Is All the World to Me," recreating it as "I Got a Woman[.]" Ricky Vincent, Funk: The Music, The People, and the Rhythm of the One (New York: St. Martin's Griffin, 1996), 121. See also Joel Hirschhorn, The Complete Idiot's Guide to Songwriting (New York: Alpha Books, 2004), 108: "I Got a Woman was Ray's rewrite of 'My Jesus Is All the World to Me.' " Charles himself was more equivocal about the origins of the song: So I was lucky. Lucky to have my own band at this point in my career. Lucky to be able to construct my musical building to my exact specifications. And lucky in another way: While I was stomping around New Orleans, I had met a trumpeter named Renolds [sic] Richard who by thus time was in my band. One day he brought me some words to a song. I dressed them up a little and put them to music. The tune was called "I Got a Woman," and it was another of those spirituals which I refashioned in my own way. I Got a Woman was my first real smash, much bigger than ["]Baby Let Me Hold Your Hand[.]" This spiritual-and-blues combination of mine was starting to hit. Charles and Ritz, Brother Ray, 150. 8. See Lydon, Ray Charles, 419. 9. James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society (Cambridge, Mass.: Harvard University Press, 1996). 10. James Henke, Holly George-Warren, Anthony Decurtis, and Jim Miller, The Rolling Stone Illustrated History of Rock and Roll: The Definitive History of the Most Important Artists and Their Music (New York: Random House, 1992), 130. 11. Great American Country, "Ray Charles Biography," available at http://www.gactv.com/gac/ar_artists_a- z/article/0,,GAC_26071_4888297,00.html. 12. "His 1955 smash 'I've Got a Woman,' for example, was adapted from a gospel number he'd liked called 'I've Got a Savior.' " Chip Deffaa, Blue Rhythms: Six Lives in Rhythm and Blues (Urbana: University of Illinois Press, 1996), 161. 13. Columbia Catalog Number CO45097, available at http://settlet.fateback.com/COL30000.htm. 14. J. C. Marion, "Ray Charles: The Atlantic Years," JammUpp 2 no. 32 (2004): 32, http://home.earthlink.net/~v1tiger/jammuppvol2.html. 15. "If one can pinpoint a moment when gospel and blues began to merge into a secular version of gospel song, it was in 1954 when Ray Charles recorded 'My Jesus Is All the World to Me,' changing its text to 'I Got A Woman.' The following year, he changed Clara Ward's 'This Little Light of Mine' to 'This Little Girl of Mine.' " Stephens, "Soul," 32. 16. Robert Lashley, "Why Ray Charles Matters," Blogcritics Magazine, December 17, 2005, http://blogcritics.org/archives/2005/12/17/032826.php: But it was the staggering, nearly byzantine ambition that encompassed Charles' musical mind which is the foundation for his art. You can hear it in his first imprint on the pop music world, 1955's I Got A Woman. The shuffling big beat borrows from Louis Jordan's big band fusion, the backbeat is 2/4 gospel. The arrangement is lucid, not quite jazz, not quite blues, definitely not rock and roll but something sophisticated altogether. The emotions are feral, but not quite the primitiveness of rock and roll. It is the sound of life, a place where there is an ever flowing river of cool. It, you might ask? Rhythm and Blues, Ray Charles' invention. A volcano bubbling under the surface, Ray spent the mid 50's crafting timeless songs as if there were cars on an assembly[.] Start with the blasphemous fusion of Hallelujah I [L]ove Her So and This Little Girl of Mine, where Ray changes the words from loving god to loving a woman, yet, in the intensity of his performance, raises the question if he's still loving the same thing. The anonymous encyclopedists at Wikipedia agree: Many of the most prominent soul artists, such as Aretha Franklin, Marvin Gaye, Wilson Pickett and Al Green, had roots in the church and gospel music and brought with them much of the vocal styles of artists such as Clara Ward and Julius Cheeks. Secular songwriters often appropriated gospel songs, such as the Pilgrim Travelers' song "I've Got A New Home," which Ray Charles turned into "Lonely Avenue," or "Stand By Me," which Ben E. King and Lieber and Stoller adapted from a well-known gospel song, or Marvin Gaye's "Can I Get A Witness," which reworks traditional gospel catchphrases. In other cases secular musicians did the opposite, attaching phrases and titles from the gospel tradition to secular songs to create soul hits such as "Come See About Me" for the Supremes and "991?2Won't Do" for Wilson Pickett. "Urban Contemporary Gospel," Wikipedia, http://en.wikipedia.org/wiki/urban_contemporary_gospel. 17. Northrop Frye, Anatomy of Criticism: Four Essays (Princeton, N.J.: Princeton University Press, 1957), 96-97. 18. John Leland, "Art Born of Outrage in the Internet Age," New York Times (September 25, 2005), D3. 19. Grand Upright Music, Ltd. v. Warner Bros. Records, Inc., 780 F. Supp. 182 (S.D.N.Y. 1991). 20. Ibid., 183. 21. Kembrew McLeod, Owning Culture: Authorship, Ownership and Intellectual Property Law (New York: Peter Lang, 2001), and Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity (New York: New York University Press, 2001). 22. Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 804n16 (6th Cir. 2005). 23. Walter Benjamin, "The Work of Art in the Age of Mechanical Reproduction," in Illuminations: Essays and Reflections, ed. Hannah Arendt, trans. Harry Zohn (New York: Harcourt, Brace & World, 1968), 217-42. 24. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 583 (1994). Notes: Chapter 8 1. Clay Shirky, "Supernova Talk: The Internet Runs on Love," available at http://www.shirky.com/herecomeseverybody/2008/02/supernova-talk- the-internet-runs-on-love.html; see also Clay Shirky, Here Comes Everybody: The Power of Organizing Without Organizations (New York: Penguin Press, 2008). 2. See Glyn Moody, Rebel Code: Linux and the Open Source Revolution (Cambridge, Mass.: Perseus Pub., 2001); Peter Wayner, Free for All: How Linux and the Free Software Movement Undercut the High-Tech Titans (New York: HarperBusiness, 2000); Eben Moglen, "Anarchism Triumphant: Free Software and the Death of Copyright," First Monday 4 (1999), http://firstmonday.org/issues/issue4_8/index.html. 3. Proprietary, or "binary only," software is generally released only after the source code has been compiled into machine- readable object code, a form that is impenetrable to the user. Even if you were a master programmer, and the provisions of the Copyright Act, the appropriate licenses, and the DMCA did not forbid you from doing so, you would be unable to modify commercial proprietary software to customize it for your needs, remove a bug, or add a feature. Open source programmers say, disdainfully, that it is like buying a car with the hood welded shut. See, e.g., Wayner, Free for All, 264. 4. See Brian Behlendorf, "Open Source as a Business Strategy," in Open Sources: Voices from the Open Source Revolution, ed. Chris DiBona et al. (Sebastapol, Calif.: O'Reilly, 1999), 149, 163. 5. One organization theorist to whom I mentioned the idea said, "Ugh, governance by food fight." Anyone who has ever been on an organizational listserv, a global production process run by people who are long on brains and short on social skills, knows how accurate that description is. E pur si muove. 6. See Bruce Brown, "Enterprise-Level Security Made Easy," PC Magazine (January 15, 2002), 28; Jim Rapoza, "Open-Source Fever Spreads," PC Week (December 13, 1999), 1. 7. "UK Government Report Gives Nod to Open Source," Desktop Linux (October 28, 2004), available at http://www.desktoplinux.com/news/NS5013620917.html. 8. "Cases of Official Recognition of Free and Open Source Software," available at http://ec.europa.eu/information_society/activities/opensource/ca ses/index_en.htm. 9. E. Cobham Brewer, The Dictionary of Phrase and Fable (London: John Cassell, 1894), 1111-1112. 10. Richard Epstein, "Why Open Source Is Unsustainable," FT.com (October 21, 2004), available at http://www.ft.com/cms/s/2/78d9812a-2386-11d9-aee5-00000e2511c8 .html. 11. For a seminal statement, see Moglen, "Anarchism Triumphant," 45: " '[I]ncentives' is merely a metaphor, and as a metaphor to describe human creative activity it's pretty crummy. I have said this before, but the better metaphor arose on the day Michael Faraday first noticed what happened when he wrapped a coil of wire around a magnet and spun the magnet. Current flows in such a wire, but we don't ask what the incentive is for the electrons to leave home. We say that the current results from an emergent property of the system, which we call induction. The question we ask is 'what's the resistance of the wire?' So Moglen's Metaphorical Corollary to Faraday's Law says that if you wrap the Internet around every person on the planet and spin the planet, software flows in the network. It's an emergent property of connected human minds that they create things for one another's pleasure and to conquer their uneasy sense of being too alone. The only question to ask is, what's the resistance of the network? Moglen's Metaphorical Corollary to Ohm's Law states that the resistance of the network is directly proportional to the field strength of the 'intellectual property' system. So the right answer to the econodwarf is, resist the resistance." 12. Benkler's reasoning is characteristically elegant, even formal in its precision, while mine is clunkier. See Yochai Benkler, "Coase's Penguin, or, Linux and the Nature of the Firm," Yale Law Journal 112 (2002): 369-446. 13. Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom (New Haven, Conn.: Yale University Press, 2006), 46-47. 14. See Karl Popper, The Open Society and Its Enemies (London: Routledge, 1945). 15. See http://www.ensembl.org. 16. See, e.g., NASA's "Clickworkers" experiment, which used public volunteers to analyze Mars landing data, available at http://clickworkers.arc.nasa.gov/top. 17. Benkler, "Coase's Penguin," 11. 18. Free Software Foundation, http://www.gnu.ai.mit.edu/philosophy/free-sw.html. 19. Exhibit A: the Internet--from the software and protocols on which it runs to the multiple volunteer sources of content and information. 20. See, e.g., the Database Investment and Intellectual Property Antipiracy Act of 1996, HR 3531, 104th Cong. (1996); The Consumer Access Bill, HR 1858, 106th Cong. § 101(1) (1999); see also Council Directive 96/9/EC of the European Parliament and the Council of 11 March 1996 on the Legal Protection of Databases, 1996 Official Journal of the European Union, L77 (27.03.1996): 20-28. 21. See generally Julie E. Cohen and Mark A. Lemley, "Patent Scope and Innovation in the Software Industry," California Law Review 89 (2001): 1-58; see also Pamela Samuelson et al., "A Manifesto Concerning the Legal Protection of Computer Programs," Columbia Law Review 94 (1994): 2308-2431. 22. Uniform Computer Information Transactions Act, available at http://www.law.upenn.edu/bll/archives/ulc/ucita/2002final.htm. 23. 17 U.S.C. § 1201 (2002). 24. This point has been ably made by Pamela Samuelson, Jessica Litman, Jerry Reichman, Larry Lessig, and Yochai Benkler, among others. See Pamela Samuelson, "Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to Be Revised," Berkeley Technology Law Journal 14 (1999): 519-566; Jessica Litman, Digital Copyright: Protecting Intellectual Property on the Internet (Amherst, N.Y.: Prometheus Books, 2001); J. H. Reichman and Paul F. Uhlir, "Database Protection at the Crossroads: Recent Developments and Their Impact on Science and Technology," Berkeley Technology Law Journal 14 (1999): 793-838; Lawrence Lessig, "Jail Time in the Digital Age," New York Times (July 30, 2001), A17; and Yochai Benkler, "Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain," New York University Law Review 74 (1999): 354-446. Each has a slightly different focus and emphasis on the problem, but each has pointed out the impediments now being erected to distributed, nonproprietary solutions. See also James Boyle, "Cruel, Mean, or Lavish? Economic Analysis, Price Discrimination and Digital Intellectual Property," Vanderbilt Law Review 53 (2000): 2007-2039. 25. William W. Fisher III, "Property and Contract on the Internet," Chicago-Kent Law Review 73 (1998): 1217-1218. 26. See James Boyle, "Missing the Point on Microsoft," Salon.com (April 7, 2000), http:// www.salon.com/tech/feature/2000/04/07/greenspan/index.html. 27. See "Salam Pax," Wikipedia, available at http://en.wikipedia.org/wiki/Salam_Pax. Notes: Chapter 9 1. Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991). 2. Stephen M. Maurer, P. Bernt Hugenholtz, and Harlan J. Onsrud, "Europe's Database Experiment," Science 294 (2001): 789-790. 3. Stephen M. Maurer, "Across Two Worlds: US and European Models of Database Protection," paper commissioned by Industry Canada (2001). 4. Matthew Bender & Co. v. West Publishing Co., 158 F.3d 674 (2nd Cir. 1998). 5. James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society (Cambridge, Mass.: Harvard University Press, 1996). 6. First evaluation of Directive 96/9/EC on the legal protection of databases, DG Internal Market and Services Working Paper (Brussels, Belgium: Commission of the European Communities, 2005), 5. 7. Ibid., 22. 8. In Open Access and the Public Domain in Digital Data and Information for Science: Proceedings of an International Symposium (Washington, D.C.: National Academies Press, 2004), 69-73, available at http://books.nap.edu/openbook.php?record_id?11030&page?69. 9. Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the Re-use of Public Sector Information, Official Journal of the European Union, L 345 (31.12.2003): 90-96; Public Sector Modernisation: Open Government, Organization for Economic Co-operation and Development (2005), available at http://www.oecd.org/dataoecd/1/35/34455306.pdf; The Socioeconomic Effects of Public Sector Information on Digital Networks: Toward a Better Understanding of Different Access and Reuse Policies (February 2008 OECD conference), more information at http://www.oecd.org/document/48/0,3343,en_2649_201185_40046832_1 _1_1_1,00.html; and the government sites of individual countries in the European Union such as Ireland (-http://www.psi.gov.ie/). 10. Andrew Gowers, Gowers Review of Intellectual Property (London: HMSO, 2006), available at http://www.hm- treasury.gov.uk/media/6/E/pbr06_gowers_report_755.pdf 11. University of Cambridge Centre for Intellectual Property and Information Law, Review of the Economic Evidence Relating to an Extension of Copyright in Sound Recordings (2006), available at http://www.hm-treasury.gov.uk/media/B/4/gowers_ cipilreport.pdf. 12. Ibid., 21-22. 13. Ibid. 14. House of Commons Select Committee on Culture, Media and Sport, Fifth Report (2007), available at http://www.publications.parliament.uk/pa/cm200607/cmselect/cmcum eds/509/50910.htm. Notes: Chapter 10 1. Jonathan Zittrain, The Future of the Internet--And How to Stop It (New Haven, Conn.: Yale University Press, 2008). 2. Of course, these are not the only assumptions, arguments, and metaphors around. Powerful counterweights exist: the ideas of Jefferson and Macaulay, which I described here, but also others, more loosely related--the Scottish Enlightenment's stress on the political and moral benefits of competition, free commerce, and free labor; deep economic and political skepticism about monopolies; the strong traditions of open science; and even liberalism's abiding focus on free speech and access to information. If you hear the slogan "information wants to be free," you may agree or disagree with the personification. You may find the idea simplistic. But you do not find it incomprehensible, as you might if someone said "housing wants to be free" or "food wants to be free." We view access to information and culture as vital to successful versions of both capitalism and liberal democracy. We apply to blockages in information flow or disparities in access to information a skepticism that does not always apply to other social goods. Our attitudes toward informational resources are simply different from our attitudes toward other forms of power, wealth, or advantage. It is one of the reasons that the Jefferson Warning is so immediately attractive. It is this attitudinal difference that makes the political terrain on these issues so fascinating. 3. Mancur Olson, The Logic of Collective Action: Public Goods and the Theory of Groups (Cambridge, Mass.: Harvard University Press, 1965) and Mancur Olson, The Rise and Decline of Nations: Economic Growth, Stagflation, and Social Rigidities (New Haven, Conn.: Yale University Press, 1982). 4. "The source of the general divergences between the values of marginal social and marginal private net product that occur under simple competition is the fact that, in some occupations, a part of the product of a unit of resources consists of something, which, instead of coming in the first instance to the person who invests the unit, comes instead, in the first instance (i.e., prior to sale if sale takes place), as a positive or negative item, to other people." Arthur C. Pigou, "Divergences between Marginal Social Net Product and Marginal Private Net Product," in The Economics of Welfare (London: Macmillan, 1932), available at http://www.econlib.org/Library/NPDBooks/Pigou/pgEW1.html. Ironically, so far as I can find, Pigou does not use the word "externality." 5. William D. Ruckelshaus, "Environmental Protection: A Brief History of the Environmental Movement in America and the Implications Abroad," Environmental Law 15 (1985): 457. 6. As always, Jessica Litman provides the clearest and most down-to-earth example. Commenting on Rebecca Tushnet's engrossing paper on fan fiction (Rebecca Tushnet, "Payment in Credit: Copyright Law and Subcultural Creativity," Law and Contemporary Problems 70 (Spring 2007): 135-174), Litman describes copyright's "balance between uses copyright owners are entitled to control and other uses that they simply are not entitled to control." Jessica Litman, "Creative Reading," Law and Contemporary Problems 70 (Spring 2007), 175. That balance, she suggests, is not bug but feature. The spaces of freedom that exist in the analog world because widespread use is possible without copying are neither oversights, nor temporarily abandoned mines of monopoly rent just waiting for a better technological retrieval method. They are integral parts of the copyright system. 7. James Boyle, "A Politics of Intellectual Property: Environmentalism for the Net?" Duke Law Journal 47 (1997): 87-116. 8. Molly Shaffer Van Houweling, "Cultural Environmentalism and the Constructed Commons," Law and Contemporary Problems 70 (Spring 2007): 23-50. 9. See http://www.eff.org/IP/, http://www.openrightsgroup.org/, http://www.publicknowledge.org/. 10. Eldred v. Ashcroft, 537 U.S. 186 (2003). Once again, Professor Lessig had the central role as counsel for petitioners. 11. See http://www.pubpat.org/. 12. See Access to Knowledge, http://www.cptech.org/a2k/. Some of Mr. Love's initiatives are discussed at http://www.cptech.org/jamie/. 13. Tim Hubbard and James Love, "A New Trade Framework for Global Healthcare R&D," PLoS Biology 2 (2004): e52. 14. WIPO Development Agenda, available at http://www.cptech.org/ip/wipo/da.html. The Geneva Declaration on the Future of the World Intellectual Property Organization, available at http://www.cptech.org/ip/wipo/futureofwipodeclaration.pdf. In the interest of full disclosure, I should note that I wrote one of the first manifestos that formed the basis for earlier drafts of the Declaration. James Boyle, "A Manifesto on WIPO and the Future of Intellectual Property," Duke Law & Technology Review 0009 (2004): 1-12, available at http://www.law.duke.edu/journals/dltr/articles/PDF/2004DLTR0009. pdf. The Adelphi Charter on Creativity, Innovation, and Intellectual Property, available at http://www.adelphicharter.org/. The Charter was issued by the British Royal Society for the Encouragement of Arts, Manufactures and Commerce (RSA). For discussion of the Charter see James Boyle, "Protecting the Public Domain," Guardian.co.uk (October 14, 2005), available at http://education.guardian.co.uk/ higher/comment/story/0,9828,1591467,00.html; "Free Ideas," The Economist (October 15, 2005), 68. Again, in the interest of full disclosure, I should note that I advised the RSA on these issues and was on the steering committee of the group that produced the Charter. 15. An example is the MacArthur Foundation Program on Intellectual Property and the Public Domain: "The General Program . . . was begun in 2002 as a short-term project to support new models, policy analysis, and public education designed to bring about balance between public and private interests concerning intellectual property rights in a digital era." See http://www.macfound.org/site/c.lkLXJ8MQKrH/b.943331/k.DA6/Genera l_Grantmaking__Intellectual_Property.htm. The Ford Foundation has a similar initiative. Frédéric Sultan, "International Intellectual Property Initiative: Ford Foundation I-Jumelage Resources," available at http://www.vecam.org/ijumelage/spip.php?article609. 16. See http://www.creativecommons.org and http://www.fsf.org. 17. This process runs counter to the assumptions of theorists of collective action problems in a way remarkable enough to have attracted its own chroniclers. See Amy Kapczynski, "The Access to Knowledge Mobilization and the New Politics of Intellectual Property," Yale Law Journal 117 (2008): 804-885. Economists generally assume preferences are simply given, individuals just have them and they are "exogenous" to the legal system in the sense that they are unaffected by the allocation of legal rights. The emergence of the movements and institutions I am describing here paints a different picture. The "preferences" are socially constructed, created through a collective process of debate and decision which shifts the level of abstraction upwards; and, as Kapczynski perceptively notes, they are highly influenced by the legal categories and rights against which the groups involved initially defined themselves. 18. See "News for Nerds: Stuff That Matters," http://www.slashdot.org, and "A Directory of Wonderful Things," http://www.boingboing.net. 19. Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified as amended in scattered sections of 5, 17, 28, and 35 U.S.C.). 20. For the former see "Content Protection," http://xkcd.com/c129.html, and "Digital Rights Management," http://xkcd.com/c86.html. For the latter, see "Copyright," http://xkcd.com/c14.html. 21. R. David Kryder, Stanley P. Kowalski, and Anatole F. Krattiger, "The Intellectual and Technical Property Components of Pro-Vitamin A Rice (GoldenRiceTM): A Preliminary Freedom-to- Operate Review," ISAAA Briefs No. 20 (2000), available at http://www.isaaa.org/Briefs/20/briefs.htm. 22. "The Supreme Court Docket: The Coming of Copyright Perpetuity," New York Times editorial (January 16, 2003), A28. 23. "Free Mickey Mouse," Washington Post editorial (January 21, 2003), A16. 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46060	----	Of The Injustice of Counterfeiting Books by Immanuel Kant [Transcriber note: This e-text edition of "Of the Injustice of Counterfeiting Books" is, essentially, with some changes or clarifications by the e-text preparer, based on a translation of this essay, from German into English, that was published in 1798 in: Essays and Treatises On Moral, Political and Various Philosophical Subjects, by Immanuel Kant, M.R.A.S.B., and professor of philosophy in the university of Koenigsberg; From the German by the Translator of The Principles of Critical Philosophy; IN TWO VOLUMES; Vol. 1; London: Sold by William Richardson Under the Royal Exchange, 1798; This e-text was prepared by John Mamoun in 2014. This e-text is not in copyright and is public domain.] ************* Of The Injustice of Counterfeiting Books Those who consider the publication of a book to be equivalent to the use of an author's property in the form of a copy (whether the possessor came by it as a manuscript from the author or as a transcript of it from an actual editor), and then, however, via the reservation of certain rights, whether of the author's or of the editor's, who is appointed by the author, want to limit the use of the book only to this, that is, want to impose the rule that it is not permitted to counterfeit the book, cannot, based upon the rationale of this aforementioned consideration, attain this anti-counterfeiting objective. For the author's property in his thoughts or sentiments (even if it were not granted that the concept of such thought or sentiment property has legal merit according to external laws) would remain to him regardless of whether or not that property was used or represented in the form of a counterfeit; and, since an express legal consent given by the purchaser of a book to such a limitation of their property would not likely be granted,* how much less would a merely presumed consent suffice to determine the purchaser's obligation? [*Footnote: Would an editor attempt to bind everybody who purchased his work to the condition, to be accused of embezzling the property of another entrusted to him, if, either intentionally, or by the purchaser's lack of oversight, the copy which the purchaser purchased were used for the purpose of counterfeiting? Scarcely anyone would consent to this: because he would thereby expose himself to every sort of trouble about the inquiry and the defense. The work would therefore remain exclusively in the editor's hands.] I believe, however, that I am justified to consider the publication of a book to be not the trading of a good [in the form of a book] in the trader's own name, but as the transacting of business in the name of another, namely, the author. [By considering the act of publication to be such a transaction], I am able to represent easily and distinctly the wrongfulness of counterfeiting books. My argument, which also proves the editor's right, is contained in a ratiocination; after which follows a second, wherein the counterfeiter's pretension shall be refuted. I. Deduction of the Editor's Right against the Counterfeiter Whoever transacts another's business in his name and yet against his will is obliged to give up to him, or to his attorney, all the profits that may arise therefrom, and to repair all the loss which is thereby occasioned to either the one or the other. Now the counterfeiter is he who transacts another's business (the author's) against the other's will. Therefore the counterfeiter is obliged to give up to the author or to his attorney (or the editor) [any profits from the transaction]. Proof of the Major As the agent, who intrudes himself, acts in the name of another in a manner not permitted, he has no claim to the profit which arises from this business; but the author or editor in whose name he carries on the business, or another authorized controller of the work to whose charge the former has committed the work, possesses the right to appropriate this profit to himself, as the fruit of his property. Besides, as this agent injures the possessor's right by intermeddling, "nullo jure," in another's business, he must of necessity compensate for all damages sustained. This lies without a doubt in the elementary conceptions of natural right. Proof of the Minor The first point of the minor is: that the editor transacts the business of the author by the publication. Here, everything depends on the conception of a book, or of a writing in general, as a labour of the author's, and on the conception of the editor in general (be he an attorney or not). Whether a book be a commodity which the author, either through the author's own efforts or by means of another, can traffic with the public, and can therefore transfer the ownership rights of the book, either with or without reservation of certain rights; or whether the book is instead a mere use of his works, which the author can indeed concede to others, but never transfer the ownership rights of; Again: whether the editor transacts his business in his own name, or transacts another's business in the name of another? In a book, as a writing, the author speaks to his reader; and he who printed it speaks by his copies not for himself, but entirely in the name of the author. The editor exhibits the author as speaking publicly, and mediates only the delivery of this speech to the public. Let the copy of this speech, whether it be in handwriting or in print, belong to whom it will; yet to use this for one's self, or to traffic with it, is a business which every owner of it may conduct in his own name and at pleasure. But to let any one speak publicly, to publish his speech as such, means to speak in his name, and, in a way, to say to the public: "A writer lets you know, or teaches you, this or that, etc., through me. I answer for nothing, not even for the liberty, which the writer takes, to speak publicly through me; I am but the mediator of the writer's thoughts coming to you." That is no doubt a business which one can execute only in the name of another, and never in one's own (as editor). The editor furnishes in his own name the mute instrument of the delivering of a speech of the author's to the public;** the editor can publish the said speech by printing, which consequently shows himself as the person through whom the author addresses the public, but he can do so only in the name of the author. [**Footnote: A book is the instrument of the delivering of a speech to the public, not merely of the thoughts, as pictures of a symbolical representation of an idea or of an event. What is here the most essential about it is that it is not a thing, which is thereby delivered, but is rather an opera, namely a speech, and certainly literal. In naming it a mute instrument, I distinguish it from what delivers the speech by a sound, such as a trumpet in music, or the mouths of others.] The second point of the minor is: that the counterfeiter undertakes the author's business, not only without any permission from the owner, but even contrary to the owner's will. Given that he is a counterfeiter because he invades the province of another, who is authorized by the author himself to publish the work: the question is, whether the author can confer the same permission on yet another, and consent thereto. It is, however, clear that, as then each of them--the first editor and the person afterwards usurping the publication of the work (the counterfeiter)--would manage the author's business with one and the same public, the labour of the one must render that of the other useless and be ruinous to both; therefore a contract between the author and an editor that contains the corollary, to allow yet another besides the editor to venture the publication of the author's work, is impossible; consequently the author was not entitled to give the permission to any other, [including by implication a] counterfeiter), and the counterfeiter should not have even presumed this; by consequence the counterfeiting of books is a business totally contrary to the will of the proprietor, and yet undertaken in the proprietor's name. From this ground it follows that not the author, but the editor authorized by him, suffers damages. For as the author has entirely, without reservation, given up to the editor his right to the managing of his business with the public, or to dispose of it otherwise, so the editor is the only proprietor of the transaction of this business, and the counterfeiter encroaches on the editor, but not on the author. But as this right of transacting a business, which may be done just as well by another, is not inalienable (jus personalissimum), assuming that no corollary exists otherwise in the author's contractual agreement with the editor, so the editor, as he has been authorized to have power over the work, also has the right to transfer his right of publication to another; and as the author must consent to this, he who undertakes the business from the second hand is not a counterfeiter, but a rightfully authorized editor, i.e. one to whom the editor, who was appointed by the author, has transferred his power over the work. II. Refutation of the Counterfeiter's pretended Right against the Editor. The question remains still to be answered: since the editor projects to the public the ownership over the work of the author, does not the consent of the editor (and by implication also the author, who gave the editor legal control over it) to every use of the work, including reprinting it, result automatically from ownership of a copy of the work, such that such consent is automatically furnished to whoever purchases a copy of the work, however disagreeable such consent to permit counterfeiting may be to the editor? For the prospect of profit has perhaps enticed the editor to undertake, with the risk of having the published work counterfeited, the business of editor, where this risk is more likely since the purchaser has not been excluded from counterfeiting via an express contract, because it would hurt the editor's business if the editor tried to obligate all potential purchasers of the work to agree to a contract forbidding counterfeiting, because potential purchases would generally not consent to such an agreement and therefore would be less likely to purchase a copy of the work. My answer to this question is that the ownership of the copy does not furnish the right of counterfeiting. I prove this by the following ratiocination: A personal positive right against another can never be derived from the ownership of a thing only. But the right of publishing a work is a personal positive right. Therefore, the right of publishing never can be derived from the ownership of a thing (the copy) only. Proof of the Major With the ownership of a thing is indeed accompanied the negative right to resist any one who would hinder me from the use of it at pleasure; but a positive right against a person, to demand of him to perform something or to be obliged to serve me in anything, cannot arise from the mere ownership of a thing. It is true this positive right might by a particular agreement be added to the purchase contract whereby I acquire a property from anybody; e.g. that, when I purchase a commodity, the seller shall also send it to a certain place free from expenses. But then the right against the person, to do something for me, does not proceed from the mere ownership of my purchased thing, but from a particular contract. Proof of the Minor If someone can dispose of something at pleasure in his own name, then that someone has a right to that thing. But if someone can perform only in the name of another, he transacts this business such that the other is thereby bound, as if the business were transacted by himself. (Quod quis facit per alium, ipse fecisse putandus set). Therefore my right to the transacting of a business in the name of another is a personal positive right, to necessitate the author of the business to guarantee something, namely, to answer for everything which he has done through me, or to which he obliges himself through me. The publishing of the work is now a speech to the public (by printing) in the name of the author, and is consequently a business in the name of another. Therefore the right to it is a right of the editor's against a person: not merely to defend himself in the use of his property at pleasure against him; but to necessitate him to acknowledge and to answer for as his own a certain business, which the editor transacts in his name; consequently this is a personal positive right. The copy, according to which the editor prints, is a work of the author's and belongs totally to the editor after he has purchased it, either in the manuscript form or the printed form, to do with it everything the editor pleases, where said doings can be done in the editor's own name; for that is a requisite of the complete right in a thing, i.e. ownership. But the use, which the editor cannot make of it except only in the name of another (namely the author's), is a business (opera) that this other transacts through the owner of the copy, where in addition to the ownership of the copy, a particular contract is still requisite for other rights to be provided to the owner of the copy. Now, the publication of a book is a business which can only be transacted in the name of another (namely the author, whom the editor presents as speaking to the public through him); therefore the rights of transacting the business of publishing the book is separate from the rights that are associated with the ownership of a copy of the book. The right to publish the book can legally be acquired only by a particular contract with the author. Who publishes without such a contract with the author (or, if the author has already granted this right to another, i.e. to an authorized editor, without a contract with that authorized editor) is the counterfeiter, who then damages the authorized editor, and must make amends to him for all damages. Universal Observation That the editor transacts his business of editor not merely in his own name, but in the name of another*** (namely the author), and without whose consent cannot transact this business at all, is confirmed from certain obligations which fix themselves according to universal acknowledgement. [***Footnote: If the editor is at the same time also the author, then, however, both businesses (writing versus publishing) are different; the editor publishes as a tradesman, whereas what he published he originally wrote as a scholar or man of letter. But we may set aside such an unusual example of two different roles being held simultaneously by the same person, and restrict our exposition only to that where the editor is not at the same time the author: it will afterwards be easy to extend the consequence to the first case likewise.] Were the author to die after he had delivered his manuscript to the editor to be printed, and the editor had previously bound himself as the authorized publisher: then the editor would not have the liberty to suppress the manuscript's publication on the grounds that it is his property; but the public has a right, if the author left no heirs, either to force the editor to publish the book or to give up the manuscript to another who offers to publish it. For the publishing of his manuscript is a business which the author, prior to dying, had the intention to transact with the public through the editor, and for which the editor succeeds the author by becoming the agent. The public does not even need to know whether or not the author had this intention, or to agree with the author's intention; the public acquires this right against the editor (to perform something) by the law only. For he possesses the manuscript only on the condition to use it for the purpose of a business of the author's with the public; but this obligation towards the public remains, though that towards the author has ceased by his death. Here the argument is not built upon a right of the public to the manuscript, but upon a business with the author. Should the editor give out the author's work, after his death, mutilated or falsified, or let the necessary number of copies for the demand be wanting; the public would thus be entitled to force him to more justness or to augment the publication, but otherwise to provide for this elsewhere. All of which would not be legally justifiable, were the editor's right not deduced from the legal concept that the editor is transacting a business between the author and the public in the name of the author. However, to this obligation of the editor's, which will probably be granted, a corresponding right exists, namely, the right to all that, without which the editor's obligation could not be fulfilled. This is: that he exercises the right of publication exclusively, because the rivalry of others in his business would render the transaction of it practically impossible for him. Works of art, as things, may, on the other hand, be imitated or otherwise modeled, at will, from a copy of them which was rightfully acquired, and those imitations may be publicly sold, without requiring the consent of the author of the original or of the master who supervised the artist in developing the artist's ideas. A drawing, which anyone has drawn, or had engraved by another, or executed in stone, metal, or stucco, may be copied, and the copies publicly sold; as everything, that one can perform with his thing in his own name, does not require the consent of another. Lippert's "Dactyliotec" may be imitated by every possessor of it who understands it, and exposed to sale, and the inventor of it has no right to complain of encroachment on his business. For it is a work (an opus, not an opera; these terms are mutually exclusive) which everybody who possesses it may, without even mentioning the name of the inventor, assume title over it, and also imitate it and use it in public trade, in his own name, as his own. But the writing of another is the speech of a person (opera); and whoever publishes it can speak to the public only in the name of this other, and say nothing more of himself than that the author makes the following speech to the public through him (Impensis Bibliopola). For it is a contradiction, to make in his own name a speech which he knows, and conformably to the demand of the public, must be the speech of another. The reason why all works of art of others may be imitated for public sale, but books, to which an editor is designated, dare not be counterfeited, lies in this: that artworks are works (opera), but books are acts (operae); artworks may be as things existing for themselves, but books can have their existence only in a person. Consequently, books belong to the person of the author exclusively;**** and the author has an inalienable right (jus personalissimum) always to speak himself through every other, that is, nobody dares make the same speech to the public except in the author's name. [****Footnote: The author, and the owner of the copy, may both say of it with equal right: "It is my book!" However, each would say this in a different sense. The author takes the book as a writing or a speech; the owner interprets the book as being the mute instrument merely of the delivering of the speech to him or to the public, that is, as a copy. The author does not have ownership rights over the thing, namely, the copy of the book (for the owner may burn that copy before the author's face); instead, the author has an innate right, in the author's own person, to wit, to hinder another from reading the copy to the public without the author's consent, which consent can by no means be presumed, because the author may have already given it exclusively to another editor.] But while altering (abridging, augmenting or retouching) the book of another, such as to re-work the book into what is substantially a new book, such that it would be wrong to publish the new book in the name of the author of the original book, the retouching of a book, in the proper name of the publisher, is no counterfeit, and therefore is not prohibited. For here, another author transacts, via his editor, another business transaction that is different from the initial business transaction transacted by the initial author, and consequently does not intrude upon the initial author's initial business transaction with the public; he represents not that author, as speaking through him, but another. Similarly, [I believe that the unauthorized] translation of an author's work into another language cannot be considered to be a counterfeit; for the translated book is not the same speech of the author, though the thoughts may be exactly the same. If the idea of a copyright, or of the publication of books in general, that were demonstrated in this essay, were well-understood, and precisely elaborated (which, flattering myself, I think is possible), with a formality that was at the level of Roman juridical learning, a complaint against a counterfeiter might be brought before a court, without first needing to ask for a new law to structure the due process proceedings that would govern such a lawsuit against a counterfeiter. 
44800	----	by the Google Books Project, with a Creative Commons license granted by the Ludwig von Mises Institute, Auburn, Alabama THE LAW By Frédéric Bastiat Ludwig von Mises Institute Auburn, Alabama Cover: Prise de la Bastille ("The Storming of the Bastille"); 1789. Painting by Jean-Pierre Hoiiel (1735-1813). Permission was obtained from the Bibliothèque nationale de France for its use. Copyright © 2007 by the Ludwig von Mises Institute. Printed in China. Published by the Ludwig von Mises Institute 518 West Magnolia Avenue, Auburn, Alabama 36832 ISBN: 978-1-933550-14-5 This book is licensed under a Creative Commons license. FOREWORD {v} Anyone building a personal library of liberty must include in it a copy of Frédéric Bastiat's classic essay, "The Law." First published in 1850 by the great French economist and journalist, it is as clear a statement as has ever been made of the original American ideal of government, as proclaimed in the Declaration of Independence, that the main purpose of any government is the protection of the lives, liberties, and property of its citizens. Bastiat believed that all human beings possessed the God-given, natural rights of "individuality, liberty, property." "This is man," he wrote. These "three gifts from God precede all human legislation." But even in his time--writing in the late 1840s--Bastiat was alarmed over how the law had been "perverted" into an instrument of what he called legal plunder. Far from protecting individual rights, the law was increasingly used to deprive one group of citizens of those rights for the benefit of another group, and especially for the benefit of the state itself. He condemned the legal plunder of protectionist {vi} tariffs, government subsidies of all kinds, progressive taxation, public schools, government "jobs" programs, minimum wage laws, welfare, usury laws, and more. Bastiat's warnings of the dire effects of legal plunder are as relevant today as they were the day he first issued them. The system of legal plunder (which many now celebrate as "democracy") will erase from everyone's conscience, he wrote, the distinction between justice and injustice. The plundered classes will eventually figure out how to enter the political game and plunder their fellow man. Legislation will never be guided by any principles of justice, but only by brute political force. The great French champion of liberty also forecast the corruption of education by the state. Those who held "government-endowed teaching positions," he wrote, would rarely criticize legal plunder lest their government endowments be ended. The system of legal plunder would also greatly exaggerate the importance of politics in society. That would be a most unhealthy development as it would encourage even more citizens to seek to improve their own well-being not by producing goods and services for the marketplace but by plundering their fellow citizens through politics. Bastiat was also wise enough to anticipate what modern economists call "rent seeking" and "rent avoidance" behavior. These two clumsy phrases refer, respectively, to the phenomena of lobbying for political favors (legal plunder), and of engaging in political activity directed at protecting oneself from being the victim of plunder seekers. (For example, the steel manufacturing industry lobbies for high tariffs on steel, whereas steel-using industries, like the automobile industry, can be expected to lobby against high tariffs on steel). {vii} The reason why modem economists are concerned about "rent seeking" is the opportunity cost involved: the more time, effort and money that is spent by businesses on conniving to manipulate politics--merely transferring wealth--the less time is spent on producing goods and services, which increases wealth. Thus, legal plunder impoverishes the entire society despite the fact that a small (but politically influential) part of the society benefits from it. It is remarkable, in reading "The Law," how perfectly accurate Bastiat was in describing the statists of his day which, it turns out, were not much different from the statists of today or any other day. The French "socialists" of Bastiat's day espoused doctrines that perverted charity, education, and morals, for one thing. True charity does not begin with the robbery of taxation, he pointed out. Government schooling is inevitably an exercise in statist brainwashing, not genuine education; and it is hardly "moral" for a large gang (government) to (legally) rob one segment of the population, keep most of the loot, and share a little of it with various "needy" individuals. Socialists want "to play God," Bastiat observed, anticipating all the future tyrants and despots of the world who would try to remake the world in their image, whether that image would be communism, fascism, the "glorious union," or "global democracy." Bastiat also observed that socialists wanted forced conformity; rigid regimentation of the population through pervasive regulation; forced equality of wealth; and dictatorship. As such, they were the mortal enemies of liberty. "Dictatorship" need not involve an actual dictator. All that was needed, said Bastiat, was "the laws," enacted {viii} by a Congress or a Parliament, that would achieve the same effect: forced conformity. Bastiat was also wise to point out that the world has far too many "great men," "fathers of their countries," etc., who in reality are usually nothing but petty tyrants with a sick and compulsive desire to rule over others. The defenders of the free society should have a healthy disrespect for all such men. Bastiat admired America and pointed to the America of 1850 as being as close as any society in the world to his ideal of a government that protected individual rights to life, liberty, and property. There were two major exeptions, however: the twin evils of slavery and protectionist tariffs. Frédéric Bastiat died on Christmas Eve, 1850, and did not live to observe the convulsions that the America he admired so much would go through in the next fifteen years (and longer). It is unlikely that he would have considered the U.S. government's military invasion of the Southern states in 1861, the killing of some 300,000 citizens, and the bombing, burning, and plundering of the region's cities, towns, farms, and businesses as being consistent in any way with the protection of the lives, liberties and properties of those citizens as promised by the Declaration of Independence. Had he lived to see all of this, he most likely would have added "legal murder" to "legal plunder" as one of the two great sins of government. He would likely have viewed the post-war Republican Party, with its 50 percent average tariff rates, its massive corporate welfare schemes, and its 25-year campaign of genocide against the Plains Indians as first-rate plunderers and traitors to the American ideal. In the latter pages of "The Law" Bastiat offers the sage advice that what was really needed was "a science of {ix} economics" that would explain the harmony (or lack thereof) of a free society (as opposed to socialism). He made a major contribution to this end himself with the publication of his book, _Economic Harmonies_, which can be construed as a precursor to the modern literature of the Austrian School of economics. There is no substitute for a solid understanding of the market order (and of the realities of politics) when it comes to combating the kinds of destructive socialistic schemes that plagued Bastiat's day as well as ours. Anyone who reads this great essay along with other free-market classics, such as Henry Hazlitt's Economics in One Lesson and Murray Roth-bard's Power and Market, will possess enough intellectual ammunition to debunk the socialist fantasies of this or any other day. Thomas J. DiLorenzo May 2007 Thomas DiLorenzo is professor of economics at Loyola College in Maryland and a member of the senior faculty of the Mises Institute. THE LAW [1] {1} The law perverted! The law--and, in its wake, all the collective forces of the nation--the law, I say, not only diverted from its proper direction, but made to pursue one entirely contrary! The law become the tool of every kind of avarice, instead of being its check! The law guilty of that very iniquity which it was its mission to punish! Truly, this is a serious fact, if it exists, and one to which I feel bound to call the attention of my fellow citizens. We hold from God the gift that, as far as we are concerned, contains all others, Life--physical, intellectual, and moral life. But life cannot support itself. He who has bestowed it, has entrusted us with the care of supporting it, of developing it, and of perfecting it. To that end, He has provided us with a collection of wonderful faculties; He has plunged us into the midst of a variety of elements. It is by {2} the application of our faculties to these elements that the phenomena of assimilation and of appropriation, by which life pursues the circle that has been assigned to it are realized. Existence, faculties, assimilation--in other words, personality, liberty, property--this is man. It is of these three things that it may be said, apart from all demagogic subtlety, that they are anterior and superior to all human legislation. It is not because men have made laws, that personality, liberty, and property exist. On the contrary, it is because personality, liberty, and property exist beforehand, that men make laws. What, then, is law? As I have said elsewhere, it is the collective organization of the individual right to lawful defense. Nature, or rather God, has bestowed upon every one of us the right to defend his person, his liberty, and his property, since these are the three constituent or preserving elements of life; elements, each of which is rendered complete by the others, and that cannot be understood without them. For what are our faculties, but the extension of our personality? and what is property, but an extension of our faculties? If every man has the right of defending, even by force, his person, his liberty, and his property, a number of men have the right to combine together to extend, to organize a common force to provide regularly for this defense. Collective right, then, has its principle, its reason for existing, its lawfulness, in individual right; and the common force cannot rationally have any other end, or any other mission, than that of the isolated forces for which it is substituted. Thus, as the force of an individual cannot lawfully touch the person, the liberty, or the property of {3} another individual--for the same reason, the common force cannot lawfully be used to destroy the person, the liberty, or the property of individuals or of classes. For this perversion of force would be, in one case as in the other, in contradiction to our premises. For who will dare to say that force has been given to us, not to defend our rights, but to annihilate the equal rights of our brethren? And if this be not true of every individual force, acting independently, how can it be true of the collective force, which is only the organized union of isolated forces? Nothing, therefore, can be more evident than this: The law is the organization of the natural right of lawful defense; it is the substitution of collective for individual forces, for the purpose of acting in the sphere in which they have a right to act, of doing what they have a right to do, to secure persons, liberties, and properties, and to maintain each in its right, so as to cause justice to reign over all. And if a people established upon this basis were to exist, it seems to me that order would prevail among them in their acts as well as in their ideas. It seems to me that such a people would have the most simple, the most economical, the least oppressive, the least to be felt, the most restrained, the most just, and, consequently, the most stable Government that could be imagined, whatever its political form might be. For under such an administration, everyone would feel that he possessed all the fullness, as well as all the responsibility of his existence. So long as personal safety was ensured, so long as labor was free, and the fruits of labor secured against all unjust attacks, no one would have any difficulties to contend with in the State. When {4} prosperous, we should not, it is true, have to thank the State for our success; but when unfortunate, we should no more think of taxing it with our disasters than our peasants think of attributing to it the arrival of hail or of frost. We should know it only by the inestimable blessing of Safety. It may further be affirmed, that, thanks to the nonintervention of the State in private affairs, our wants and their satisfactions would develop themselves in their natural order. We should not see poor families seeking for literary instruction before they were supplied with bread. We should not see towns peopled at the expense of rural districts, nor rural districts at the expense of towns. We should not see those great displacements of capital, of labor, and of population, that legislative measures occasion; displacements that render so uncertain and precarious the very sources of existence, and thus enlarge to such an extent the responsibility of Governments. Unhappily, law is by no means confined to its own sphere. Nor is it merely in some ambiguous and debatable views that it has left its proper sphere. It has done more than this. It has acted in direct opposition to its proper end; it has destroyed its own object; it has been employed in annihilating that justice which it ought to have established, in effacing amongst Rights, that limit which it was its true mission to respect; it has placed the collective force in the service of those who wish to traffic, without risk and without scruple, in the persons, the liberty, and the property of others; it has converted plunder into a right, that it may protect it, and lawful defense into a crime, that it may punish it. How has this perversion of law been accomplished? And what has resulted from it? {5} The law has been perverted through the influence of two very different causes--naked greed and misconceived philanthropy. Let us speak of the former. Self-preservation and development is the common aspiration of all men, in such a way that if every one enjoyed the free exercise of his faculties and the free disposition of their fruits, social progress would be incessant, uninterrupted, inevitable. But there is also another disposition which is common to them. This is to live and to develop, when they can, at the expense of one another. This is no rash imputation, emanating from a gloomy, uncharitable spirit. History bears witness to the truth of it, by the incessant wars, the migrations of races, sectarian oppressions, the universality of slavery, the frauds in trade, and the monopolies with which its annals abound. This fatal disposition has its origin in the very constitution of man--in that primitive, and universal, and invincible sentiment that urges it towards its well-being, and makes it seek to escape pain. Man can only derive life and enjoyment from a perpetual search and appropriation; that is, from a perpetual application of his faculties to objects, or from labor. This is the origin of property. But also he may live and enjoy, by seizing and appropriating the productions of the faculties of his fellow men. This is the origin of plunder. Now, labor being in itself a pain, and man being naturally inclined to avoid pain, it follows, and history proves it, that wherever plunder is less burdensome than labor, it prevails; and neither religion nor morality can, in this case, prevent it from prevailing. When does plunder cease, then? When it becomes more burdensome and more dangerous than labor. It is {6} very evident that the proper aim of law is to oppose the fatal tendency to plunder with the powerful obstacle of collective force; that all its measures should be in favor of property, and against plunder. But the law is made, generally, by one man, or by one class of men. And as law cannot exist without the sanction and the support of a preponderant force, it must finally place this force in the hands of those who legislate. This inevitable phenomenon, combined with the fatal tendency that, we have said, exists in the heart of man, explains the almost universal perversion of law. It is easy to conceive that, instead of being a check upon injustice, it becomes its most invincible instrument. It is easy to conceive that, according to the power of the legislator, it destroys for its own profit, and in different degrees amongst the rest of the community, personal independence by slavery, liberty by oppression, and property by plunder. It is in the nature of men to rise against the injustice of which they are the victims. When, therefore, plunder is organized by law, for the profit of those who perpetrate it, all the plundered classes tend, either by peaceful or revolutionary means, to enter in some way into the manufacturing of laws. These classes, according to the degree of enlightenment at which they have arrived, may propose to themselves two very different ends, when they thus attempt the attainment of their political rights; either they may wish to put an end to lawful plunder, or they may desire to take part in it. Woe to the nation where this latter thought prevails amongst the masses, at the moment when they, in their turn, seize upon the legislative power! {7} Up to that time, lawful plunder has been exercised by the few upon the many, as is the case in countries where the right of legislating is confined to a few hands. But now it has become universal, and the equilibrium is sought in universal plunder. The injustice that society contains, instead of being rooted out of it, is generalized. As soon as the injured classes have recovered their political rights, their first thought is not to abolish plunder (this would suppose them to possess enlightenment, which they cannot have), but to organize against the other classes, and to their own detriment, a system of reprisals--as if it was necessary, before the reign of justice arrives, that all should undergo a cruel retribution--some for their iniquity and some for their ignorance. It would be impossible, therefore, to introduce into society a greater change and a greater evil than this--the conversion of the law into an instrument of plunder. What would be the consequences of such a perversion? It would require volumes to describe them all. We must content ourselves with pointing out the most striking. In the first place, it would efface from everybody's conscience the distinction between justice and injustice. No society can exist unless the laws are respected to a certain degree, but the safest way to make them respected is to make them respectable. When law and morality are in contradiction to each other, the citizen finds himself in the cruel alternative of either losing his moral sense, or of losing his respect for the law--two evils of equal magnitude, between which it would be difficult to choose. It is so much in the nature of law to support justice that in the minds of the masses they are one and the same. There is in all of us a strong disposition to regard what is lawful as legitimate, so much so that many falsely derive {8} all justice from law. It is sufficient, then, for the law to order and sanction plunder, that it may appear to many consciences just and sacred. Slavery, protection, and monopoly find defenders, not only in those who profit by them, but in those who suffer by them. If you suggest a doubt as to the morality of these institutions, it is said directly--"You are a dangerous experimenter, a utopian, a theorist, a despiser of the laws; you would shake the basis upon which society rests." If you lecture upon morality, or political economy, official bodies will be found to make this request to the Government: That henceforth science be taught not only with sole reference to free exchange (to liberty, property, and justice), as has been the case up to the present time, but also, and especially, with reference to the facts and legislation (contrary to liberty, property, and justice) that regulate French industry. That, in public lecterns salaried by the treasury, the professor abstain rigorously from endangering in the slightest degree the respect due to the laws now in force.[2] So that if a law exists that sanctions slavery or monopoly, oppression or plunder, in any form whatever, it must not even be mentioned--for how can it be mentioned without damaging the respect that it inspires? Still further, morality and political economy must be taught in connection with this law--that is, under the supposition that it must be just, only because it is law. {9} Another effect of this deplorable perversion of the law is that it gives to human passions and to political struggles, and, in general, to politics, properly so called, an exaggerated importance. I could prove this assertion in a thousand ways. But I shall confine myself, by way of an illustration, to bringing it to bear upon a subject which has of late occupied everybody's mind: universal suffrage. Whatever may be thought of it by the adepts of the school of Rousseau, which professes to be very far advanced, but which I consider 20 centuries behind, universal suffrage (taking the word in its strictest sense) is not one of those sacred dogmas with respect to which examination and doubt are crimes. Serious objections may be made to it. In the first place, the word universal conceals a gross sophism. There are, in France, 36,000,000 inhabitants. To make the right of suffrage universal, 36,000,000 electors should be reckoned. The most extended system reckons only 9,000,000. Three persons out of four, then, are excluded; and more than this, they are excluded by the fourth. Upon what principle is this exclusion founded? Upon the principle of incapacity. Universal suffrage, then, means: universal suffrage of those who are capable. In point of fact, who are the capable? Are age, sex, and judicial condemnations the only conditions to which incapacity is to be attached? On taking a nearer view of the subject, we may soon perceive the reason why the right of suffrage depends upon the presumption of incapacity; the most extended system differing from the most restricted in the conditions on which this incapacity depends, and which constitutes not a difference in principle, but in degree. {10} This motive is, that the elector does not stipulate for himself, but for everybody. If, as the republicans of the Greek and Roman tone pretend, the right of suffrage had fallen to the lot of every one at his birth, it would be an injustice to adults to prevent women and children from voting. Why are they prevented? Because they are presumed to be incapable. And why is incapacity a reason for exclusion? Because the elector does not reap alone the responsibility of his vote; because every vote engages and affects the community at large; because the community has a right to demand some assurances, as regards the acts upon which its well-being and its existence depend. I know what might be said in answer to this. I know what might be objected. But this is not the place to settle a controversy of this kind. What I wish to observe is this, that this same controversy (in common with the greater part of political questions) that agitates, excites, and unsettles the nations, would lose almost all its importance if the law had always been what it ought to be. In fact, if law were confined to causing all persons, all liberties, and all properties to be respected--if it were merely the organization of individual right and individual defense--if it were the obstacle, the check, the chastisement opposed to all oppression, to all plunder--is it likely that we should dispute much, as citizens, on the subject of the greater or lesser universality of suffrage? Is it likely that it would compromise that greatest of advantages, the public peace? Is it likely that the excluded classes would not quietly wait for their turn? Is it likely that the enfranchised classes would be very jealous of their privilege? And is it not clear, that the interest of all being one and the same, some would act without much inconvenience to the others? {11} But if the fatal principle should come to be introduced, that, under pretense of organization, regulation, protection, or encouragement, the law may take from one party in order to give to another, help itself to the wealth acquired by all the classes that it may increase that of one class, whether that of the agriculturists, the manufacturers, the ship owners, or artists and comedians; then certainly, in this case, there is no class which may not try, and with reason, to place its hand upon the law, that would not demand with fury its right of election and eligibility, and that would overturn society rather than not obtain it. Even beggars and vagabonds will prove to you that they have an incontestable title to it. They will say: We never buy wine, tobacco, or salt, without paying the tax, and a part of this tax is given by law in perquisites and gratuities to men who are richer than we are. Others make use of the law to create an artificial rise in the price of bread, meat, iron, or cloth. Since everybody traffics in law for his own profit, we should like to do the same. We should like to make it produce the right to assistance, which is the poor man's plunder. To effect this, we ought to be electors and legislators, that we may organize, on a large scale, alms for our own class, as you have organized, on a large scale, protection for yours. Don't tell us that you will take our cause upon yourselves, and throw to us 600,000 francs to keep us quiet, like giving us a bone to pick. We have other claims, and, at any rate, we wish to stipulate for ourselves, as other classes have stipulated for themselves! How is this argument to be answered? Yes, as long as it is admitted that the law may be diverted from its true mission, that it may violate property instead of securing it, {12} everybody will be wanting to manufacture law, either to defend himself against plunder, or to organize it for his own profit. The political question will always be prejudicial, predominant, and absorbing; in a word, there will be fighting around the door of the Legislative Palace. The struggle will be no less furious within it. To be convinced of this, it is hardly necessary to look at what passes in the Chambers in France and in England; it is enough to know how the question stands. Is there any need to prove that this odious perversion of law is a perpetual source of hatred and discord, that it even tends to social disorganization? Look at the United States. There is no country in the world where the law is kept more within its proper domain--which is, to secure to everyone his liberty and his property. Therefore, there is no country in the world where social order appears to rest upon a more solid basis. Nevertheless, even in the United States, there are two questions, and only two, that from the beginning have endangered political order. And what are these two questions? That of slavery and that of tariffs; that is, precisely the only two questions in which, contrary to the general spirit of this republic, law has taken the character of a plunderer. Slavery is a violation, sanctioned by law, of the rights of the person. Protection is a violation perpetrated by the law upon the rights of property; and certainly it is very remarkable that, in the midst of so many other debates, this double legal scourge, the sorrowful inheritance of the Old World, should be the only one which can, and perhaps will, cause the rupture of the Union. Indeed, a more astounding fact, in the heart of society, cannot be conceived than this: That law should have become an instrument of injustice. And if this fact occasions consequences so formidable to the United {13} States, where there is but one exception, what must it be with us in Europe, where it is a principle--a system? Mr. Montalembert, adopting the thought of a famous proclamation of Mr. Carlier, said, "We must make war against socialism." And by socialism, according to the definition of Mr. Charles Dupin, he meant plunder. But what plunder did he mean? For there are two sorts: extralegal and legal plunder. As to extralegal plunder, such as theft, or swindling, which is defined, foreseen, and punished by the penal code, I do not think it can be adorned by the name of socialism. It is not this that systematically threatens the foundations of society. Besides, the war against this kind of plunder has not waited for the signal of Mr. Montalembert or Mr. Carlier. It has gone on since the beginning of the world; France was carrying it on long before the revolution of February--long before the appearance of socialism--with all the ceremonies of magistracy, police, gendarmerie, prisons, dungeons, and scaffolds. It is the law itself that is conducting this war, and it is to be wished, in my opinion, that the law should always maintain this attitude with respect to plunder. But this is not the case. The law sometimes takes its own part. Sometimes it accomplishes it with its own hands, in order to save the parties benefited the shame, the danger, and the scruple. Sometimes it places all this ceremony of magistracy, police, gendarmerie, and prisons, at the service of the plunderer, and treats the plundered party, when he defends himself, as the criminal. In a word, there is a legal plunder, and it is, no doubt, this that is meant by Mr. Montalembert. This plunder may be only an exceptional blemish in the legislation of a people, and in this case, the best thing {14} that can be done is, without so many speeches and lamentations, to do away with it as soon as possible, notwithstanding the clamors of interested parties. But how is it to be distinguished? Very easily. See whether the law takes from some persons that which belongs to them, to give to others what does not belong to them. See whether the law performs, for the profit of one citizen, and, to the injury of others, an act that this citizen cannot perform without committing a crime. Abolish this law without delay; it is not merely an iniquity--it is a fertile source of iniquities, for it invites reprisals; and if you do not take care, the exceptional case will extend, multiply, and become systematic. No doubt the party benefited will exclaim loudly; he will assert his acquired rights. He will say that the State is bound to protect and encourage his industry; he will plead that it is a good thing for the State to be enriched, that it may spend the more, and thus shower down salaries upon the poor workmen. Take care not to listen to this sophistry, for it is just by the systematizing of these arguments that legal plunder becomes systematized. And this is what has taken place. The delusion of the day is to enrich all classes at the expense of each other; it is to generalize plunder under pretense of organizing it. Now, legal plunder may be exercised in an infinite multitude of ways. Hence come an infinite multitude of plans for organization; tariffs, protection, perquisites, gratuities, encouragements, progressive taxation, free public education, right to work, right to profit, right to wages, right to assistance, right to instruments of labor, gratuity of credit, etc., etc. And it is all these plans, taken as a whole, with what they have in common, legal plunder, that takes the name of socialism. Now socialism, thus defined, and forming a doctrinal body, what other war would you make against it than a {15} war of doctrine? You find this doctrine false, absurd, abominable. Refute it. This will be all the easier, the more false, absurd, and abominable it is. Above all, if you wish to be strong, begin by rooting out of your legislation every particle of socialism which may have crept into it--and this will be no light work. Mr. Montalembert has been reproached with wishing to turn brute force against socialism. He ought to be exonerated from this reproach, for he has plainly said: "The war that we must make against socialism must be one that is compatible with the law, honor, and justice." But how is it that Mr. Montalembert does not see that he is placing himself in a vicious circle? You would oppose law to socialism. But it is the law that socialism invokes. It aspires to legal, not extralegal plunder. It is of the law itself, like monopolists of all kinds, that it wants to make an instrument; and when once it has the law on its side, how will you be able to turn the law against it? How will you place it under the power of your tribunals, your gendarmes, and of your prisons? What will you do then? You wish to prevent it from taking any part in the making of laws. You would keep it outside the Legislative Palace. In this you will not succeed, I venture to prophesy, so long as legal plunder is the basis of the legislation within. It is absolutely necessary that this question of legal plunder should be determined, and there are only three solutions of it: 1. When the few plunder the many. 2. When everybody plunders everybody else. 3. When nobody plunders anybody. Partial plunder, universal plunder, absence of plunder, amongst these we have to make our choice. The law can only produce one of these results. {16} Partial plunder. This is the system that prevailed so long as the elective privilege was partial; a system that is resorted to, to avoid the invasion of socialism. Universal plunder. We have been threatened by this system when the elective privilege has become universal; the masses having conceived the idea of making law, on the principle of legislators who had preceded them. Absence of plunder. This is the principle of justice, peace, order, stability, conciliation, and of good sense, which I shall proclaim with all the force of my lungs (which is very inadequate, alas!) till the day of my death. And, in all sincerity, can anything more be required at the hands of the law? Can the law, whose necessary sanction is force, be reasonably employed upon anything beyond securing to every one his right? I defy anyone to remove it from this circle without perverting it, and consequently turning force against right. And as this is the most fatal, the most illogical social perversion that can possibly be imagined, it must be admitted that the true solution, so much sought after, of the social problem, is contained in these simple words--LAW IS ORGANIZED JUSTICE. Now it is important to remark, that to organize justice by law, that is to say by force, excludes the idea of organizing by law, or by force any manifestation whatever of human activity--labor, charity, agriculture, commerce, industry, instruction, the fine arts, or religion; for any one of these organizings would inevitably destroy the essential organization. How, in fact, can we imagine force encroaching upon the liberty of citizens without infringing upon justice, and so acting against its proper aim? Here I am taking on the most popular prejudice of our time. It is not considered enough that law should be just, {17} it must be philanthropic. It is not sufficient that it should guarantee to every citizen the free and inoffensive exercise of his faculties, applied to his physical, intellectual, and moral development; it is required to extend well-being, instruction, and morality, directly over the nation. This is the fascinating side of socialism. But, I repeat it, these two missions of the law contradict each other. We have to choose between them. A citizen cannot at the same time be free and not free. Mr. de Lamartine wrote to me one day thus: "Your doctrine is only the half of my program; you have stopped at liberty, I go on to fraternity." I answered him: "The second part of your program will destroy the first." And in fact it is impossible for me to separate the word fraternity from the word voluntary. I cannot possibly conceive fraternity legally enforced, without liberty being legally destroyed, and justice legally trampled under foot. Legal plunder has two roots: one of them, as we have already seen, is in human greed; the other is in misconceived philanthropy. Before I proceed, I think I ought to explain myself upon the word plunder. I do not take it, as it often is taken, in a vague, undefined, relative, or metaphorical sense. I use it in its scientific acceptation, and as expressing the opposite idea to property. When a portion of wealth passes out of the hands of him who has acquired it, without his consent, and without compensation, to him who has not created it, whether by force or by artifice, I say that property is violated, that plunder is perpetrated. I say that this is exactly what the law ought to repress always and everywhere. If the law itself performs the action it ought to repress, I say that plunder is still perpetrated, and even, in a social point of view, under aggravated circumstances. In this case, {18} however, he who profits from the plunder is not responsible for it; it is the law, the lawgiver, society itself, and this is where the political danger lies. It is to be regretted that there is something offensive in the word. I have sought in vain for another, for I would not wish at any time, and especially just now, to add an irritating word to our disagreements; therefore, whether I am believed or not, I declare that I do not mean to impugn the intentions nor the morality of anybody. I am attacking an idea that I believe to be false--a system that appears to me to be unjust; and this is so independent of intentions, that each of us profits by it without wishing it, and suffers from it without being aware of the cause. Any person must write under the influence of party spirit or of fear, who would call into question the sincerity of protectionism, of socialism, and even of communism, which are one and the same plant, in three different periods of its growth. All that can be said is, that plunder is more visible by its partiality in protectionism, [3] and by its universality in communism; whence it follows that, of the three systems, socialism is still the most vague, the most undefined, and consequently the most sincere. Be that as it may, to conclude that legal plunder has one of its roots in misconceived philanthropy, is evidently to put intentions out of the question. {19} With this understanding, let us examine the value, the origin, and the tendency of this popular aspiration, which pretends to realize the general good by general plunder. The Socialists say, since the law organizes justice, why should it not organize labor, instruction, and religion? Why? Because it could not organize labor, instruction, and religion, without disorganizing justice. For remember, that law is force, and that consequently the domain of the law cannot properly extend beyond the domain of force. When law and force keep a man within the bounds of justice, they impose nothing upon him but a mere negation. They only oblige him to abstain from doing harm. They violate neither his personality, his liberty, nor his property. They only guard the personality, the liberty, the property of others. They hold themselves on the defensive; they defend the equal right of all. They fulfill a mission whose harmlessness is evident, whose utility is palpable, and whose legitimacy is not to be disputed. This is so true that, as a friend of mine once remarked to me, to say that the aim of the law is to cause justice to reign, is to use an expression that is not rigorously exact. It ought to be said, the aim of the law is to prevent injustice from reigning. In fact, it is not justice that has an existence of its own, it is injustice. The one results from the absence of the other. But when the law, through the medium of its necessary agent--force--imposes a form of labor, a method or a subject of instruction, a creed, or a worship, it is no longer negative; it acts positively upon men. It substitutes the will of the legislator for their own will, the initiative of the legislator for their own initiative. They have no need to consult, to compare, or to foresee; the law does all that for them. The intellect is for them a useless {20} encumbrance; they cease to be men; they lose their personality, their liberty, their property. Try to imagine a form of labor imposed by force, that is not a violation of liberty; a transmission of wealth imposed by force, that is not a violation of property. If you cannot succeed in reconciling this, you are bound to conclude that the law cannot organize labor and industry without organizing injustice. When, from the seclusion of his office, a politician takes a view of society, he is struck with the spectacle of inequality that presents itself. He mourns over the sufferings that are the lot of so many of our brethren, sufferings whose aspect is rendered yet more sorrowful by the contrast of luxury and wealth. He ought, perhaps, to ask himself whether such a social state has not been caused by the plunder of ancient times, exercised in the way of conquests; and by plunder of more recent times, effected through the medium of the laws? He ought to ask himself whether, granting the aspiration of all men to well-being and improvement, the reign of justice would not suffice to realize the greatest activity of progress, and the greatest amount of equality compatible with that individual responsibility that God has awarded as a just retribution of virtue and vice? He never gives this a thought. His mind turns towards combinations, arrangements, legal or factitious organizations. He seeks the remedy in perpetuating and exaggerating what has produced the evil. For, justice apart, which we have seen is only a negation, is there any one of these legal arrangements that does not contain the principle of plunder? You say, "There are men who have no money," and you apply to the law. But the law is not a self-supplied {21} fountain, whence every stream may obtain supplies independently of society. Nothing can enter the public treasury, in favor of one citizen or one class, but what other citizens and other classes have been forced to send to it. If everyone draws from it only the equivalent of what he has contributed to it, your law, it is true, is no plunderer, but it does nothing for men who want money--it does not promote equality. It can only be an instrument of equalization as far as it takes from one party to give to another, and then it is an instrument of plunder. Examine, in this light, the protection of tariffs, subsidies, right to profit, right to labor, right to assistance, free public education, progressive taxation, gratuitousness of credit, social workshops, and you will always find at the bottom legal plunder, organized injustice. You say, "There are men who want knowledge," and you apply to the law. But the law is not a torch that sheds light that originates within itself. It extends over a society where there are men who have knowledge, and others who have not; citizens who want to learn, and others who are disposed to teach. It can only do one of two things: either allow a free operation to this kind of transaction, i.e., let this kind of want satisfy itself freely; or else preempt the will of the people in the matter, and take from some of them sufficient to pay professors commissioned to instruct others for free. But, in this second case there cannot fail to be a violation of liberty and property--legal plunder. You say, "Here are men who are wanting in morality or religion," and you apply to the law; but law is force, and need I say how far it is a violent and absurd enterprise to introduce force in these matters? {22} As the result of its systems and of its efforts, it would seem that socialism, notwithstanding all its self-complacency, can scarcely help perceiving the monster of legal plunder. But what does it do? It disguises it cleverly from others, and even from itself, under the seductive names of fraternity, solidarity, organization, association. And because we do not ask so much at the hands of the law, because we only ask it for justice, it alleges that we reject fraternity, solidarity, organization, and association; and they brand us with the name of individualists. We can assure them that what we repudiate is not natural organization, but forced organization. It is not free association, but the forms of association that they would impose upon us. It is not spontaneous fraternity, but legal fraternity. It is not providential solidarity, but artificial solidarity, which is only an unjust displacement of responsibility. Socialism, like the old policy from which it emanates, confounds Government and society. And so, every time we object to a thing being done by Government, it concludes that we object to its being done at all. We disapprove of education by the State--then we are against education altogether. We object to a State religion--then we would have no religion at all. We object to an equality which is brought about by the State then we are against equality, etc., etc. They might as well accuse us of wishing men not to eat, because we object to the cultivation of corn by the State. How is it that the strange idea of making the law produce what it does not contain--prosperity, in a positive sense, wealth, science, religion--should ever have gained ground in the political world? The modern politicians, particularly those of the Socialist school, found their different {23} theories upon one common hypothesis; and surely a more strange, a more presumptuous notion, could never have entered a human brain. They divide mankind into two parts. Men in general, except one, form the first; the politician himself forms the second, which is by far the most important. In fact, they begin by supposing that men are devoid of any principle of action, and of any means of discernment in themselves; that they have no initiative; that they are inert matter, passive particles, atoms without impulse; at best a vegetation indifferent to its own mode of existence, susceptible of assuming, from an exterior will and hand an infinite number of forms, more or less symmetrical, artistic, and perfected. Moreover, every one of these politicians does not hesitate to assume that he himself is, under the names of organizer, discoverer, legislator, institutor or founder, this will and hand, this universal initiative, this creative power, whose sublime mission it is to gather together these scattered materials, that is, men, into society. Starting from these data, as a gardener according to his caprice shapes his trees into pyramids, parasols, cubes, cones, vases, espaliers, distaffs, or fans; so the Socialist, following his chimera, shapes poor humanity into groups, series, circles, subcircles, honeycombs, or social workshops, with all kinds of variations. And as the gardener, to bring his trees into shape, needs hatchets, pruning hooks, saws, and shears, so the politician, to bring society into shape, needs the forces which he can only find in the laws; the law of tariffs, the law of taxation, the law of assistance, and the law of education. It is so true, that the Socialists look upon mankind as a subject for social experiments, that if, by chance, they {24} are not quite certain of the success of these experiments, they will request a portion of mankind, as a subject to experiment upon. It is well known how popular the idea of trying all systems is, and one of their chiefs has been known seriously to demand of the Constituent Assembly a parish, with all its inhabitants, upon which to make his experiments. It is thus that an inventor will make a small machine before he makes one of the regular size. Thus the chemist sacrifices some substances, the agriculturist some seed and a corner of his field, to make trial of an idea. But think of the difference between the gardener and his trees, between the inventor and his machine, between the chemist and his substances, between the agriculturist and his seed! The Socialist thinks, in all sincerity, that there is the same difference between himself and mankind. No wonder the politicians of the nineteenth century look upon society as an artificial production of the legislator's genius. This idea, the result of a classical education, has taken possession of all the thinkers and great writers of our country. To all these persons, the relations between mankind and the legislator appear to be the same as those that exist between the clay and the potter. Moreover, if they have consented to recognize in the heart of man a capability of action, and in his intellect a faculty of discernment, they have looked upon this gift of God as a fatal one, and thought that mankind, under these two impulses, tended fatally towards ruin. They have taken it for granted that if abandoned to their own inclinations, men would only occupy themselves with religion to arrive at atheism, with instruction to come to ignorance, and with labor and exchange to be extinguished in misery. {25} Happily, according to these writers, there are some men, termed governors and legislators, upon whom Heaven has bestowed opposite tendencies, not for their own sake only, but for the sake of the rest of the world. Whilst mankind tends to evil, they incline to good; whilst mankind is advancing towards darkness, they are aspiring to enlightenment; whilst mankind is drawn towards vice, they are attracted by virtue. And, this granted, they demand the assistance of force, by means of which they are to substitute their own tendencies for those of the human race. It is only needful to open, almost at random, a book on philosophy, politics, or history, to see how strongly this idea--the child of classical studies and the mother of socialism--is rooted in our country; that mankind is merely inert matter, receiving life, organization, morality, and wealth from power; or, rather, and still worse--that mankind itself tends towards degradation, and is only arrested in its tendency by the mysterious hand of the legislator. Classical conventionalism shows us everywhere, behind passive society, a hidden power, under the names of Law, or Legislator (or, by a mode of expression which refers to some person or persons of undisputed weight and authority, but not named), which moves, animates, enriches, and regenerates mankind. We will give a quotation from Bossuet: One of the things which was the most strongly impressed (by whom?) upon the mind of the Egyptians, was the love of their country.... Nobody was allowed to be useless to the State; the law assigned to every one his employment, which descended from father to son. No one was permitted to have two professions, nor to adopt another. ... But there was one occupation which was {26} obliged to be common to all, this was the study of the laws and of wisdom; ignorance of religion and the political regulations of the country was excused in no condition of life. Moreover, every profession had a district assigned to it (by whom?).... Amongst good laws, one of the best things was, that everybody was taught to observe them (by whom?). Egypt abounded with wonderful inventions, and nothing was neglected which could render life comfortable and tranquil. Thus men, according to Bossuet, derive nothing from themselves; patriotism, wealth, inventions, husbandry, science--all come to them by the operation of the laws, or by kings. All they have to do is to be passive. It is on this ground that Bossuet takes exception when Diodorus accuses the Egyptians of rejecting wrestling and music. "How is that possible," says he, "since these arts were invented by Trismegistus?" It is the same with the Persians: One of the first cares of the prince was to encourage agriculture.... As there were posts established for the regulation of the armies, so there were offices for the superintending of rural works.... The respect with which the Persians were inspired for royal authority was excessive. The Greeks, although full of mind, were no less strangers to their own responsibilities; so much so, that of themselves, like dogs and horses, they would not have ventured upon the most simple games. In a classical sense, it is an undisputed thing that everything comes to the people from without. The Greeks, naturally full of spirit and courage, had been early cultivated by kings and colonies who had come from Egypt. From them they had {27} learned the exercises of the body, foot races, and horse and chariot races.... The best thing that the Egyptians had taught them was to become docile, and to allow themselves to be formed by the laws for the public good. FENELON--Reared in the study and admiration of antiquity and a witness of the power of Louis XIV, Fenelon naturally adopted the idea that mankind should be passive, and that its misfortunes and its prosperities, its virtues and its vices, are caused by the external influence that is exercised upon it by the law, or by the makers of the law. Thus, in his Utopia of Salentum, he brings the men, with their interests, their faculties, their desires, and their possessions, under the absolute direction of the legislator. Whatever the subject may be, they themselves have no voice in it--the prince judges for them. The nation is just a shapeless mass, of which the prince is the soul. In him resides the thought, the foresight, the principle of all organization, of all progress; on him, therefore, rests all the responsibility. In proof of this assertion, I might transcribe the whole of the tenth book of _Telemachus_. I refer the reader to it, and shall content myself with quoting some passages taken at random from this celebrated work, to which, in every other respect, I am the first to render justice. With the astonishing credulity that characterizes the classics, Fénelon, against the authority of reason and of facts, admits the general felicity of the Egyptians, and attributes it, not to their own wisdom, but to that of their kings: We could not turn our eyes to the two shores, without perceiving rich towns and country seats, agreeably situated; fields that were covered every year, {28} without intermission, with golden crops; meadows full of flocks; laborers bending under the weight of fruits that the earth lavished on its cultivators; and shepherds who made the echoes around repeat the soft sounds of their pipes and flutes. "Happy," said Mentor, "is that people who is governed by a wise king."... Mentor afterwards desired me to remark the happiness and abundance that was spread over all the country of Egypt, where twenty-two thousand cities might be counted. He admired the excellent police regulations of the cities; the justice administered in favor of the poor against the rich; the good education of the children, who were accustomed to obedience, labor, and the love of arts and letters; the exactness with which all the ceremonies of religion were performed; the disinterestedness, the desire of honor, the fidelity to men, and the fear of the gods, with which every father inspired his children. He could not sufficiently admire the prosperous state of the country. "Happy" said he, "is the people whom a wise king rules in such a manner." Fénelon's idyll on Crete is still more fascinating. Mentor is made to say: All that you will see in this wonderful island is the result of the laws of Minos. The education that the children receive renders the body healthy and robust. They are accustomed, from the first, to a frugal and laborious life; it is supposed that all the pleasures of sense enervate the body and the mind; no other pleasure is presented to them but that of being invincible by virtue, that of acquiring much glory... there they punish three vices that go unpunished amongst other people--ingratitude, dissimulation, and avarice. As to pomp and dissipation, there is no need to punish these, for they are unknown in Crete.... No costly furniture, no magnificent clothing, no delicious feasts, no gilded palaces are allowed. {29} It is thus that Mentor prepares his scholar to mould and manipulate, doubtless with the most philanthropic intentions, the people of Ithaca, and, to confirm him in these ideas, he gives him the example of Salentum. So we receive our first political notions. We are taught to treat men very much as Oliver de Serres teaches farmers to manage and to mix the soil. MONTESQUIEU-- To sustain the spirit of commerce, it is necessary that all the laws should favor it; that these same laws, by their regulations in dividing the fortunes in proportion as commerce enlarges them, should place every poor citizen in sufficiently easy circumstances to enable him to work like the others, and every rich citizen in such mediocrity that he must work, in order to retain or to acquire. Thus the laws are to dispose of all fortunes. Although in a democracy, real equality be the soul of the State, yet it is so difficult to establish that an extreme exactness in this matter would not always be desirable. It is sufficient that a census be established to reduce or fix the differences to a certain point, after which, it is for particular laws to equalize, as it were, the inequality by burdens imposed upon the rich and reliefs granted to the poor. Here, again, we see the equalization of fortunes by law, that is, by force. There were, in Greece, two kinds of republics. One was military, as Sparta; the other commercial, as Athens. In the one it was wished (by whom?) that the citizens should be idle: in the other, the love of labor was encouraged. It is worth our while to pay a little attention to the extent of genius required by these legislators, that {30} we may see how, by confounding all the virtues, they showed their wisdom to the world. Lycurgus, blending theft with the spirit of justice, the hardest slavery with extreme liberty, the most atrocious sentiments with the greatest moderation, gave stability to his city. He seemed to deprive it of all its resources, arts, commerce, money, and walls; there was ambition without the hope of rising; there were natural sentiments where the individual was neither child, nor husband, nor father. Chastity even was deprived of modesty. By this road Sparta was led on to grandeur and to glory. The phenomenon that we observe in the institutions of Greece has been seen in the midst of the degeneracy and corruption of our modern times. An honest legislator has formed a people where probity has appeared as natural as bravery among the Spartans. Mr. Penn is a true Lycurgus, and although the former had peace for his object, and the latter war, they resemble each other in the singular path along which they have led their people, in their influence over free men, in the prejudices which they have overcome, the passions they have subdued. Paraguay furnishes us with another example. Society has been accused of the crime of regarding the pleasure of commanding as the only good of life; but it will always be a noble thing to govern men by making them happy. Those who desire to form similar institutions will establish community of property, as in the republic of Plato, the same reverence as he enjoined for the gods, separation from strangers for the preservation of morality, and make the city and not the citizens create commerce: they should give our arts without our luxury, our wants without our desires. {31} Vulgar infatuation may exclaim, if it likes, "It is Montesquieu! magnificent! sublime!" I am not afraid to express my opinion, and to say: What! You have the gall to call that fine? It is frightful! It is abominable! And these extracts, which I might multiply, show that according to Montesquieu, the persons, the liberties, the property, mankind itself, are nothing but grist for the mill of the sagacity of lawgivers. ROUSSEAU--Although this politician, the paramount authority of the Democrats, makes the social edifice rest upon the general will, no one has so completely admitted the hypothesis of the entire passiveness of human nature in the presence of the lawgiver: If it is true that a great prince is a rare thing, how much more so must a great lawgiver be? The former has only to follow the pattern proposed to him by the latter. This latter is the engineer who invents the machine; the former is merely the workman who sets it in motion. And what part have men to act in all this? That of the machine, which is set in motion; or rather, are they not the brute matter of which the machine is made? Thus, between the legislator and the prince, between the prince and his subjects, there are the same relations as those that exist between the agricultural writer and the agriculturist, the agriculturist and the clod. At what a vast height, then, is the politician placed, who rules over legislators themselves and teaches them their trade in such imperative terms as the following: Would you give consistency to the State? Bring the extremes together as much as possible. Suffer neither wealthy persons nor beggars. {32} If the soil is poor and barren, or the country too much confined for the inhabitants, turn to industry and the arts, whose productions you will exchange for the provisions which you require.... On a good soil, if you are short of inhabitants, give all your attention to agriculture, which multiplies men, and banish the arts, which only serve to depopulate the country.... Pay attention to extensive and convenient coasts. Cover the sea with vessels, and you will have a brilliant and short existence. If your seas wash only inaccessible rocks, let the people be barbarous, and eat fish; they will live more quietly, perhaps better, and most certainly more happily. In short, besides those maxims which are common to all, every people has its own particular circumstances, which demand a legislation peculiar to itself. It was thus that the Hebrews formerly, and the Arabs more recently, had religion for their principal object; that of the Athenians was literature; that of Carthage and Tyre, commerce; of Rhodes, naval affairs; of Sparta, war; and of Rome, virtue. The author of the "Spirit of Laws" has shown the art by which the legislator should frame his institutions towards each of these objects.... But if the legislator, mistaking his object, should take up a principle different from that which arises from the nature of things; if one should tend to slavery, and the other to liberty; if one to wealth, and the other to population; one to peace, and the other to conquests; the laws will insensibly become enfeebled, the Constitution will be impaired, and the State will be subject to incessant agitations until it is destroyed, or becomes changed, and invincible Nature regains her empire. But if Nature is sufficiently invincible to regain its empire, why does not Rousseau admit that it had no need of the legislator to gain its empire from the beginning? {33} Why does he not allow that by obeying their own impulse, men would of themselves apply agriculture to a fertile district, and commerce to extensive and commodious coasts without the interference of a Lycurgus, a Solon, or a Rousseau, who would undertake it at the risk of deceiving themselves? Be that as it may, we see with what a terrible responsibility Rousseau invests inventors, institutors, conductors, and manipulators of societies. He is, therefore, very exacting with regard to them. He who dares to undertake the institutions of a people, ought to feel that he can, as it were, transform every individual, who is by himself a perfect and solitary whole, receiving his life and being from a larger whole of which he forms a part; he must feel that he can change the constitution of man, to fortify it, and substitute a social and moral existence for the physical and independent one that we have all received from nature. In a word, he must deprive man of his own powers, to give him others that are foreign to him. Poor human nature! What would become of its dignity if it were entrusted to the disciples of Rousseau? RAYNAL-- The climate, that is, the air and the soil, is the first element for the legislator. His resources prescribe to him his duties. First, he must consult his local position. A population dwelling upon maritime shores must have laws fitted for navigation.... If the colony is located in an inland region, a legislator must provide for the nature of the soil, and for its degree of fertility.... It is more especially in the distribution of property that the wisdom of legislation will appear. As a {34} general rule, and in every country, when a new colony is founded, land should be given to each man, sufficient for the support of his family.... In an uncultivated island, which you are colonizing with children, it will only be needful to let the germs of truth expand in the developments of reason!... But when you establish old people in a new country, the skill consists in only allowing it those injurious opinions and customs which it is impossible to cure and correct. If you wish to prevent them from being perpetuated, you will act upon the rising generation by a general and public education of the children. A prince or legislator ought never to found a colony without previously sending wise men there to instruct the youth.... In a new colony, every facility is open to the precautions of the legislator who desires to purify the tone and the manners of the people. If he has genius and virtue, the lands and the men that are at his disposal will inspire his soul with a plan of society that a writer can only vaguely trace, and in a way that would be subject to the instability of all hypotheses, which are varied and complicated by an infinity of circumstances too difficult to foresee and to combine. One would think it was a professor of agriculture who was saying to his pupils The climate is the only rule for the agriculturist. His resources dictate to him his duties. The first thing he has to consider is his local position. If he is on a clayey soil, he must do so and so. If he has to contend with sand, this is the way in which he must set about it. Every facility is open to the agriculturist who wishes to clear and improve his soil. If he only has the skill, the manure which he has at his disposal will suggest to him a plan of operation, which a professor can only vaguely trace, and in a way that would be subject to the uncertainty of all hypotheses, which vary and are complicated by an {35} infinity of circumstances too difficult to foresee and to combine. But, oh! sublime writers, deign to remember sometimes that this clay, this sand, this manure, of which you are disposing in so arbitrary a manner, are men, your equals, intelligent and free beings like yourselves, who have received from God, as you have, the faculty of seeing, of foreseeing, of thinking, and of judging for themselves! MABLY--(He is supposing the laws to be worn out by time and by the neglect of security, and continues thus): Under these circumstances, we must be convinced that the bonds of Government are slack. Give them a new tension (it is the reader who is addressed), and the evil will be remedied.... Think less of punishing the faults than of encouraging the virtues that you want. By this method you will bestow upon your republic the vigor of youth. Through ignorance of this, a free people has lost its liberty! But if the evil has made so much way that the ordinary magistrates are unable to remedy it effectually, have recourse to an extraordinary magistracy, whose time should be short, and its power considerable. The imagination of the citizens requires to be impressed. In this style he goes on through twenty volumes. There was a time when, under the influence of teaching like this, which is the foundation of classical education, everyone was for placing himself beyond and above mankind, for the sake of arranging, organizing, and instituting it in his own way. CONDILLAC-- Take upon yourself, my lord, the character of Lycurgus or of Solon. Before you finish reading {36} this essay, amuse yourself with giving laws to some wild people in America or in Africa. Establish these roving men in fixed dwellings; teach them to keep flocks.... Endeavor to develop the social qualities that nature has implanted in them.... Make them begin to practice the duties of humanity.... Cause the pleasures of the passions to become distasteful to them by punishments, and you will see these barbarians, with every plan of your legislation, lose a vice and gain a virtue. All these people have had laws. But few among them have been happy. Why is this? Because legislators have almost always been ignorant of the object of society, which is to unite families by a common interest. Impartiality in law consists in two things, in establishing equality in the fortunes and in the dignity of the citizens.... In proportion to the degree of equality established by the laws, the dearer will they become to every citizen. How can avarice, ambition, dissipation, idleness, sloth, envy, hatred, or jealousy agitate men who are equal in fortune and dignity, and to whom the laws leave no hope of disturbing their equality? What has been told you of the republic of Sparta ought to enlighten you on this question. No other State has had laws more in accordance with the order of nature or of equality. It is not to be wondered at that the seventeenth and eighteenth centuries should have looked upon the human race as inert matter, ready to receive everything--form, figure, impulse, movement, and life, from a great prince, or a great legislator, or a great genius. These ages were reared in the study of antiquity; and antiquity presents everywhere--in Egypt, Persia, Greece, and Rome, the {37} spectacle of a few men molding mankind according to their fancy, and mankind to this end enslaved by force or by imposture. And what does this prove? That because men and society are improvable, error, ignorance, despotism, slavery, and superstition must be more prevalent in early times. The mistake of the writers quoted above is not that they have asserted this fact, but that they have proposed it as a rule for the admiration and imitation of future generations. Their mistake has been, with an inconceivable absence of discernment, and upon the faith of a puerile conventionalism, that they have admitted what is inadmissible, viz., the grandeur, dignity, morality, and well-being of the artificial societies of the ancient world; they have not understood that time produces and spreads enlightenment; and that in proportion to the increase of enlightenment, right ceases to be upheld by force, and society regains possession of herself. And, in fact, what is the political work that we are endeavoring to promote? It is no other than the instinctive effort of every people towards liberty. And what is liberty, whose name can make every heart beat, and which can agitate the world, but the union of all liberties, the liberty of conscience, of education, of association, of the press, of movement, of labor, and of exchange; in other words, the free exercise, for all, of all the inoffensive faculties; and again, in other words, the destruction of all despotisms, even of legal despotism, and the reduction of law to its only rational sphere, which is to regulate the individual right of legitimate defense, or to repress injustice? This tendency of the human race, it must be admitted, is greatly thwarted, particularly in our country, by the fatal disposition, resulting from classical teaching and common to all politicians, of placing themselves beyond {38} mankind, to arrange, organize, and regulate it, according to their fancy. For whilst society is struggling to realize liberty, the great men who place themselves at its head, imbued with the principles of the seventeenth and eighteenth centuries, think only of subjecting it to the philanthropic despotism of their social inventions, and making it bear with docility, according to the expression of Rousseau, the yoke of public felicity as pictured in their own imaginations. This was particularly the case in 1789. No sooner was the old system destroyed than society was to be submitted to other artificial arrangements, always with the same starting point--the omnipotence of the law. SAINT-JUST-- The legislator commands the future. It is for him to will for the good of mankind. It is for him to make men what he wishes them to be. ROBESPIERRE-- The function of Government is to direct the physical and moral powers of the nation towards the object of its institution. BILLAUD VARENNES-- A people who are to be restored to liberty must be formed anew. Ancient prejudices must be destroyed, antiquated customs changed, depraved affections corrected, inveterate vices eradicated. For this, a strong force and a vehement impulse will be necessary.... Citizens, the inflexible austerity of Lycurgus created the firm basis of the Spartan republic. The feeble and trusting disposition of Solon plunged Athens into slavery. This parallel contains the whole science of Government. {39} LEPELLETIER-- Considering the extent of human degradation, I am convinced--of the necessity of effecting an entire regeneration of the race, and, if I may so express myself, of creating a new people. Men, therefore, are nothing but raw material. It is not for them to will their own improvement. They are not capable of it; according to Saint-Just, it is only the legislator who is. Men are merely to be what he wills that they should be. According to Robespierre, who copies Rousseau literally, the legislator is to begin by assigning the aim of the institutions of the nation. After this, the Government has only to direct all its physical and moral forces towards this end. All this time the nation itself is to remain perfectly passive; and Billaud Varennes would teach us that it ought to have no prejudices, affections, nor wants, but such as are authorized by the legislator. He even goes so far as to say that the inflexible austerity of a man is the basis of a republic. We have seen that, in cases where the evil is so great that the ordinary magistrates are unable to remedy it, Mably recommends a dictatorship, to promote virtue. "Have recourse," says he, "to an extraordinary magistracy, whose time shall be short, and his power considerable. The imagination of the people requires to be impressed." This doctrine has not been neglected. Listen to Robespierre: The principle of the Republican Government is virtue, and the means to be adopted, during its establishment, is terror. We want to substitute, in our country, morality for self-indulgence, probity for honor, principles for customs, duties for decorum, the empire of reason for the tyranny of {40} fashion, contempt of vice for contempt of misfortune, pride for insolence, greatness of soul for vanity, love of glory for love of money, good people for good company, merit for intrigue, genius for wit, truth for glitter, the charm of happiness for the weariness of pleasure, the greatness of man for the littleness of the great, a magnanimous, powerful, happy people, for one that is easy, frivolous, degraded; that is to say, we would substitute all the virtues and miracles of a republic for all the vices and absurdities of monarchy. At what a vast height above the rest of mankind does Robespierre place himself here! And observe the arrogance with which he speaks. He is not content with expressing a desire for a great renovation of the human heart, he does not even expect such a result from a regular Government. No; he intends to effect it himself, and by means of terror. The object of the discourse from which this puerile and laborious mass of antithesis is extracted, was to exhibit the principles of morality that ought to direct a revolutionary Government. Moreover, when Robespierre asks for a dictatorship, it is not merely for the purpose of repelling a foreign enemy, or of putting down factions; it is that he may establish, by means of terror and as a preliminary to the operation of the Constitution, his own principles of morality. He pretends to nothing short of extirpating from the country by means of terror, self-interest, honor, customs, decorum, fashion, vanity, the love of money, good company, intrigue, wit, luxury, and misery. It is not until after he, Robespierre, shall have accomplished these miracles, as he rightly calls them, that he will allow the law to regain her empire. Truly it would be well if these visionaries, who think so much of themselves and so little of mankind, who want to {41} renew everything, would only be content with trying to reform themselves, the task would be arduous enough for them. In general, however, these gentlemen, the reformers, legislators, and politicians, do not desire to exercise an immediate despotism over mankind. No, they are too moderate and too philanthropic for that. They only contend for the despotism, the absolutism, the omnipotence of the law. They aspire only to make the law. To show how universal this strange disposition has been in France, I had need not only to have copied the whole of the works of Mably, Raynal, Rousseau, Fenelon, and to have made long extracts from Bossuet and Montesquieu, but to have given the entire transactions of the sittings of the Convention. I shall do no such thing, however, but merely refer the reader to them. No wonder this idea suited Bonaparte so well. He embraced it with ardor, and put it in practice with energy. Playing the part of a chemist, Europe was to him the material for his experiments. But this material reacted against him. More than half undeceived, Bonaparte, at St. Helena, seemed to admit that there is an initiative in every people, and he became less hostile to liberty. Yet this did not prevent him from giving this lesson to his son in his will--"To govern is to diffuse morality, education, and well-being." After all this, I hardly need show, by fastidious quotations, the opinions of Morelly, Babeuf, Owen, Saint Simon, and Fourier. I shall confine myself to a few extracts from Louis Blanc's book on the organization of labor. "In our project, society receives the impulse of power." In what does the impulse that power gives to society consist? In imposing upon it the project of Mr. Louis Blanc. {42} On the other hand, society is the human race. The human race, then, is to receive its impulse from Mr. Louis Blanc. It is at liberty to do so or not, it will be said. Of course the human race is at liberty to take advice from anybody, whoever it may be. But this is not the way in which Mr. Louis Blanc understands the thing. He means that his project should be converted into law, and consequently forcibly imposed by power. In our project, the State has only to give a legislation to labor, by means of which the industrial movement may and ought to be accomplished in all liberty. It (the State) merely places society on an incline (that is all) that it may descend, when once it is placed there, by the mere force of things, and by the natural course of the established mechanism. But what is this incline? One indicated by Mr. Louis Blanc. Does it not lead to an abyss? No, it leads to happiness. Why, then, does not society go there of itself? Because it does not know what it wants, and it requires an impulse. What is to give it this impulse? Power. And who is to give the impulse to power? The inventor of the machine, Mr. Louis Blanc. We shall never get out of this circle--mankind passive, and a great man moving it by the intervention of the law. Once on this incline, will society enjoy something like liberty? Without a doubt. And what is liberty? Once for all: liberty consists not only in the right granted, but in the power given to man to exercise, to develop his faculties under the empire of justice, and under the protection of the law. And this is no vain distinction; there is a deep meaning in it, and its consequences are imponderable. For {43} when once it is admitted that man, to be truly free, must have the power to exercise and develop his faculties, it follows that every member of society has a claim upon it for such education as shall enable his faculties to display themselves, and for the tools of labor, without which human activity can find no scope. Now, by whose intervention is society to give to each of its members the requisite education and the necessary tools of labor, unless by that of the State? Thus, liberty is power. In what does this power consist? In possessing education and tools of labor. Who is to give education and tools of labor? Society, who owes them. By whose intervention is society to give tools of labor to those who do not possess them? By the intervention of the State. From whom is the State to obtain them? It is for the reader to answer this question, and to notice whither all this tends. One of the strangest phenomena of our time, and one that will probably be a matter of astonishment to our descendants, is the doctrine which is founded upon this triple hypothesis: the radical passiveness of mankind,--the omnipotence of the law,--the infallibility of the legislator: this is the sacred symbol of the party that proclaims itself exclusively democratic. It is true that it professes also to be social. So far as it is democratic, it has an unlimited faith in mankind. So far as it is social, it places mankind beneath the mud. Are political rights under discussion? Is a legislator to be chosen? Oh, then the people possess science by instinct: they are gifted with an admirable discernment; their will is always right; the general will cannot err. Suffrage cannot {44} be too universal. Nobody is under any responsibility to society. The will and the capacity to choose well are taken for granted. Can the people be mistaken? Are we not living in an age of enlightenment? What! Are the people to be forever led about by the nose? Have they not acquired their rights at the cost of effort and sacrifice? Have they not given sufficient proof of intelligence and wisdom? Are they not arrived at maturity? Are they not in a state to judge for themselves? Do they not know their own interest? Is there a man or a class who would dare to claim the right of putting himself in the place of the people, of deciding and of acting for them? No, no; the people would be free, and they shall be so. They wish to conduct their own affairs, and they shall do so. But when once the legislator is duly elected, then indeed the style of his speech alters. The nation is sent back into passiveness, inertness, nothingness, and the legislator takes possession of omnipotence. It is for him to invent, for him to direct, for him to impel, for him to organize. Mankind has nothing to do but to submit; the hour of despotism has struck. And we must observe that this is decisive; for the people, just before so enlightened, so moral, so perfect, have no inclinations at all, or, if they have any, these all lead them downwards towards degradation. And yet they ought to have a little liberty! But are we not assured by Mr. Considerant that liberty leads fatally to monopoly? Are we not told that liberty is competition? and that competition, according to Mr. Louis Blanc, is a system of extermination for the people, and of ruination for trade? For that reason people are exterminated and ruined in proportion as they are free--take, for example, Switzerland, Holland, England, and the United States? Does not Mr. Louis Blanc tell us again that competition {45} leads to monopoly, and that, for the same reason, cheapness leads to exorbitant prices? That competition tends to drain the sources of consumption, and diverts production to a destructive activity? That competition forces production to increase, and consumption to decrease--whence it follows that free people produce for the sake of not consuming; that there is nothing but oppression and madness among them; and that it is absolutely necessary for Mr. Louis Blanc to see to it? What sort of liberty should be allowed to men? Liberty of conscience?--But we should see them all profiting by the permission to become atheists. Liberty of education?--But parents would be paying professors to teach their sons immorality and error; besides, if we are to believe Mr. Thiers, education, if left to the national liberty, would cease to be national, and we should be educating our children in the ideas of the Turks or Hindus, instead of which, thanks to the legal despotism of the universities, they have the good fortune to be educated in the noble ideas of the Romans. Liberty of labor? But this is only competition, whose effect is to leave all products unconsumed, to exterminate the people, and to ruin the tradesmen. The liberty of exchange? But it is well known that the protectionists have shown, over and over again, that a man will inevitably be ruined when he exchanges freely, and that to become rich it is necessary to exchange without liberty. Liberty of association? But according to the socialist doctrine, liberty and association exclude each other, for the liberty of men is attacked just to force them to associate. You must see, then, that the socialist democrats cannot in conscience allow men any liberty, because, by their own {46} nature, they tend in every instance to all kinds of degradation and demoralization. We are therefore left to conjecture, in this case, upon what foundation universal suffrage is claimed for them with so much importunity. The pretensions of organizers suggest another question, which I have often asked them, and to which I am not aware that I ever received an answer: Since the natural tendencies of mankind are so bad that it is not safe to allow them liberty, how comes it to pass that the tendencies of organizers are always good? Do not the legislators and their agents form a part of the human race? Do they consider that they are composed of different materials from the rest of mankind? They say that society, when left to itself, rushes to inevitable destruction, because its instincts are perverse. They presume to stop it in its downward course, and to give it a better direction. They have, therefore, received from heaven, intelligence and virtues that place them beyond and above mankind: let them show their title to this superiority. They would be our shepherds, and we are to be their flock. This arrangement presupposes in them a natural superiority, the right to which we are fully justified in calling upon them to prove. You must observe that I am not contending against their right to invent social combinations, to propagate them, to recommend them, and to try them upon themselves, at their own expense and risk; but I do dispute their right to impose them upon us through the medium of the law, that is, by force and by public taxes. I would not insist upon the Cabetists, the Fourierists, the Proudhonians, the Academics, and the Protectionists renouncing their own particular ideas; I would only have them renounce the idea that is common to them all--viz., {47} that of subjecting us by force to their own categories and rankings to their social laboratories, to their ever-inflating bank, to their Greco-Roman morality, and to their commercial restrictions. I would ask them to allow us the faculty of judging of their plans, and not to oblige us to adopt them if we find that they hurt our interests or are repugnant to our consciences. To presume to have recourse to power and taxation, besides being oppressive and unjust, implies further, the pernicious assumption that the organized is infallible, and mankind incompetent. And if mankind is not competent to judge for itself, why do they talk so much about universal suffrage? This contradiction in ideas is unhappily to be found also in facts; and whilst the French nation has preceded all others in obtaining its rights, or rather its political claims, this has by no means prevented it from being more governed, and directed, and imposed upon, and fettered, and cheated, than any other nation. It is also the one, of all others, where revolutions are constantly to be dreaded, and it is perfectly natural that it should be so. So long as this idea is retained, which is admitted by all our politicians, and so energetically expressed by Mr. Louis Blanc in these words--"Society receives its impulse from power," so long as men consider themselves as capable of feeling, yet passive--incapable of raising themselves by their own discernment and by their own energy to any morality, or well-being, and while they expect everything from the law; in a word, while they admit that their relations with the State are the same as those of the flock with the shepherd, it is clear that the responsibility of power is immense. Fortune and misfortune, wealth and destitution, equality and inequality all proceed from it. It is charged {48} with everything, it undertakes everything, it does everything; therefore it has to answer for everything. If we are happy, it has a right to claim our gratitude; but if we are miserable, it alone must bear the blame. Are not our persons and property in fact, at its disposal? Is not the law omnipotent? In creating the educational monopoly, it has undertaken to answer the expectations of fathers of families who have been deprived of liberty; and if these expectations are disappointed, whose fault is it? In regulating industry, it has undertaken to make it prosper, otherwise it would have been absurd to deprive it of its liberty; and if it suffers, whose fault is it? In pretending to adjust the balance of commerce by the game of tariffs, it undertakes to make commerce prosper; and if, so far from prospering, it is destroyed, whose fault is it? In granting its protection to maritime armaments in exchange for their liberty, it has undertaken to render them self-sufficient; if they become burdensome, whose fault is it? Thus, there is not a grievance in the nation for which the Government does not voluntarily make itself responsible. Is it any wonder that every failure threatens to cause a revolution? And what is the remedy proposed? To extend indefinitely the dominion of the law, i.e., the responsibility of Government. But if the Government undertakes to raise and to regulate wages, and is not able to do it; if it undertakes to assist all those who are in want, and is not able to do it; if it undertakes to provide work for every laborer, and is not able to do it; if it undertakes to offer to all who wish to borrow, easy credit, and is not able to do it; if, in words that we regret should have escaped the pen of Mr. de Lamartine, "the State considers that its mission is to enlighten, to {49} develop, to enlarge, to strengthen, to spiritualize, and to sanctify the soul of the people"--if it fails in this, is it not obvious that after every disappointment, which, alas! is more than probable, there will be a no less inevitable revolution? I shall now resume the subject by remarking, that immediately after the economical part [4] of the question, and before the political part, a leading question presents itself. It is the following: What is law? What ought it to be? What is its domain? What are its limits? Where, in fact, does the prerogative of the legislator stop? I have no hesitation in answering, Law is common force organized to prevent injustice;--in short, Law is Justice. It is not true that the legislator has absolute power over our persons and property, since they pre-exist, and his work is only to secure them from injury. It is not true that the mission of the law is to regulate our consciences, our ideas, our will, our education, our sentiments, our works, our exchanges, our gifts, our enjoyments. Its mission is to prevent the rights of one from interfering with those of another, in any one of these things. Law, because it has force for its necessary sanction, can only have the domain of force, which is justice. And as every individual has a right to have recourse to force only in cases of lawful defense, so collective force, so which is only the union {50} of individual forces, cannot be rationally used for any other end. The law, then, is solely the organization of individual rights that existed before law. Law is justice. So far from being able to oppress the people, or to plunder their property, even for a philanthropic end, its mission is to protect the people, and to secure to them the possession of their property. It must not be said, either, that it may be philanthropic, so long as it abstains from all oppression; for this is a contradiction. The law cannot avoid acting upon our persons and property; if it does not secure them, then it violates them if it touches them. The law is justice. Nothing can be more clear and simple, more perfectly defined and bounded, or more visible to every eye; for justice is a given quantity, immutable and unchangeable, and which admits of neither increase or diminution. Depart from this point, make the law religious, fraternal, equalizing, industrial, literary, or artistic, and you will be lost in vagueness and uncertainty; you will be upon unknown ground, in a forced Utopia, or, what is worse, in the midst of a multitude of contending Utopias, each striving to gain possession of the law, and to impose it upon you; for fraternity and philanthropy have no fixed limits, as justice has. Where will you stop? Where is the law to stop? One person, Mr. de Saint Cricq, will only extend his philanthropy to some of the industrial classes, and will require the law to slight the consumers in favor of the producers. Another, like Mr. Considérant, will take up the cause of the working classes, and claim for them by means of the law, at a fixed rate, clothing, lodging, food, and {51} everything necessary for the support of life. A third, Mr. Louis Blanc, will say, and with reason, that this would be an incomplete fraternity, and that the law ought to provide them with tools of labor and education. A fourth will observe that such an arrangement still leaves room for inequality, and that the law ought to introduce into the most remote hamlets luxury, literature, and the arts. This is the high road to communism; in other words, legislation will be--as it now is--the battlefield for everybody's dreams and everybody's covetousness. Law is justice. In this proposition we represent to ourselves a simple, immovable Government. And I defy anyone to tell me whence the thought of a revolution, an insurrection, or a simple disturbance could arise against a public force confined to the repression of injustice. Under such a system, there would be more well-being, and this well-being would be more equally distributed; and as to the sufferings inseparable from humanity, no one would think of accusing the Government of them, for it would be as innocent of them as it is of the variations of the temperature. Have the people ever been known to rise against the court of appeals, or assail the justices of the peace, for the sake of claiming the rate of wages, free credit, tools of labor, the advantages of the tariff, or the social workshop? They know perfectly well that these matters are beyond the jurisdiction of the justices of the peace, and they would soon learn that they are not within the jurisdiction of the law quite as much. But if the law were to be made upon the principle of fraternity, if it were to be proclaimed that from it proceed all benefits and all evils--that it is responsible for every individual grievance and for every social inequality--then {52} you open the door to an endless succession of complaints, irritations, troubles, and revolutions. _Law is justice_. And it would be very strange if it could properly be anything else! Is not justice right? Are not rights equal? With what show of right can the law interfere to subject me to the social plans of Messrs. Mimerel, de Melun, Thiers, or Louis Blanc, rather than to subject these gentlemen to my plans? Is it to be supposed that Nature has not bestowed upon me sufficient imagination to invent a Utopia too? Is it for the law to make choice of one amongst so many fancies, and to make use of the public force in its service? _Law is justice_. And let it not be said, as it continually is, that the law, in this sense, would be atheistic, individual, and heartless, and that it would mold mankind in its own image. This is an absurd conclusion, quite worthy of the governmental infatuation which sees mankind in the law. What then? Does it follow that if we are free, we shall cease to act? Does it follow that if we do not receive an impulse from the law, we shall receive no impulse at all? Does it follow that if the law confines itself to securing to us the free exercise of our faculties, our faculties will be paralyzed? Does it follow, that if the law does not impose upon us forms of religion, modes of association, methods of education, rules for labor, directions for exchange, and plans for charity, we shall plunge headlong into atheism, isolation, ignorance, misery, and greed? Does it follow, that we shall no longer recognize the power and goodness of God; that we shall cease to associate together, to help each other, to love and assist our unfortunate brethren, to {53} study the secrets of nature, and to aspire after perfection in our existence? _Law is justice_. And it is under the law of justice, under the reign of right, under the influence of liberty, security, stability, and responsibility, that every man will attain to the fullness of his worth, to all the dignity of his being, and that mankind will accomplish with order and with calmness--slowly, it is true, but with certainty--the progress ordained for it. I believe that my theory is correct; for whatever be the question upon which I am arguing, whether it be religious, philosophical, political, or economical; whether it affects well-being, morality, equality, right, justice, progress, responsibility, property, labor, exchange, capital, wages, taxes, population, credit, or Government; at whatever point of the scientific horizon I start from, I invariably come to the same thing--the solution of the social problem is in liberty. And have I not experience on my side? Cast your eye over the globe. Which are the happiest, the most moral, and the most peaceable nations? Those where the law interferes the least with private activity; where the Government is the least felt; where individuality has the most scope, and public opinion the most influence; where the machinery of the administration is the least important and the least complicated; where taxation is lightest and least unequal, popular discontent the least excited and the least justifiable; where the responsibility of individuals and classes is the most active, and where, consequently, if morals are not in a perfect state, at any rate they tend incessantly to correct themselves; where transactions, meetings, and associations are the least fettered; where labor, capital, and production suffer the least from artificial {54} displacements; where mankind follows most completely its own natural course; where the thought of God prevails the most over the inventions of men; those, in short, who realize the most nearly this idea that within the limits of right, all should flow from the free, perfectible, and voluntary action of man; nothing be attempted by the law or by force, except the administration of universal justice. I cannot avoid coming to this conclusion--that there are too many great men in the world; there are too many legislators, organizers, institutors of society, conductors of the people, fathers of nations, etc., etc. Too many persons place themselves above mankind, to rule and patronize it; too many persons make a trade of looking after it. It will be answered--"You yourself are occupied upon it all this time." Very true. But it must be admitted that it is in another sense entirely that I am speaking; and if I join the reformers it is solely for the purpose of inducing them to relax their hold. I am not doing as Vaucauson did with his automaton, but as a physiologist does with the human frame; I would study and admire it. I am acting with regard to it in the spirit that animated a celebrated traveler. He found himself in the midst of a savage tribe. A child had just been born, and a crowd of soothsayers, magicians, and quacks were around it, armed with rings, hooks, and bandages. One said--"This child will never smell the perfume of a calumet, unless I stretch his nostrils." Another said--"He will be without the sense of hearing, unless I draw his ears down to his shoulders." A third said--"He will never see the light of the sun, unless I give his eyes an oblique direction." A fourth said--"He will never be upright, unless I bend his legs." A fifth said--"He will not be able to think, unless I press his {55} brain." "Stop!" said the traveler. "Whatever God does, is well done; do not pretend to know more than He; and as He has given organs to this frail creature, allow those organs to develop themselves, to strengthen themselves by exercise, use, experience, and liberty." God has implanted in mankind also all that is necessary to enable it to accomplish its destinies. There is a providential social physiology, as well as a providential human physiology. The social organs are constituted so as to enable them to develop harmoniously in the grand air of liberty. Away, then, with quacks and organizers! Away with their rings, and their chains, and their hooks, and their pincers! Away with their artificial methods! Away with their social laboratories, their governmental whims, their centralization, their tariffs, their universities, their State religions, their inflationary or monopolizing banks, their limitations, their restrictions, their moralizations, and their equalization by taxation! And now, after having vainly inflicted upon the social body so many systems, let them end where they ought to have begun--reject all systems, and try liberty--liberty, which is an act of faith in God and in His work. FOOTNOTES: [Footnote 1: First published in 1850.] [Footnote 2: General Council of Manufactures, Agriculture, and Commerce, 6th of May, 1850.] [Footnote 3: If protection were only granted in France to a single class, to the engineers, for instance, it would be so absurdly plundering, as to be unable to maintain itself. Thus we see all the protected trades combine, make common cause, and even recruit themselves in such a way as to appear to embrace the mass of the national labor. They feel instinctively that plunder is slurred over by being generalized.] [Footnote 4: Political economy precedes politics: the former has to discover whether human interests are harmonious or antagonistic, a fact which must be settled before the latter can determine the prerogatives of Government.] INDEX Action, human. See Individualism; Mankind Agriculture analogy to society, 35 Persian, 26 Antiquity. See Greece; Rome Authority. See Government Beggars, 11 Billaud-Varennes, Jean Nicolas, 38 Blanc, Louis competition, 45 doctrine, 42, 43 force of society, 47, 48 labor, 42 law, 50, 52 Bonaparte, Napoleon, 41 Bossuet, Jacques Bénigne, 25, 26 Cabetists, 46, 47 Capital displacement, 2 Carlier, Pierre, 13 Carthage, 32 Charity, vii, 5, 17 See also Wealth, equality of; Welfare Classical studies, 25, 26, 36, 37, 38 Collectivism, 2, 3 See also Government Communism, 18 Competition meaning, 45 results, 45 Condillac, Étienne Bonnot de, 35, 38 Constituent Assembly, 24 Conventionality, 37 Crete, 28 Defense right of, 2, 3, 37, 49, 50 Democracy, vi, 43, 44 Democrats, 43 Dictatorship, vii, 39, 40 Disposition, fatal, 5, 37, 38 Distribution, 33, 34 Dole, 10, 11 See also Welfare Dupin, Charles, 13 Education classical, 26, 38 controlled, 33 Greek, 26 {57} {58} liberty in, 44 free, 21, 22 government provided, 22, 48 Egypt, 25, 26, 27 Elections, 43, 44 See also Voting Employment assigned, 26 See also Labor Equality of wealth, 11, 20, 29, 36 Fénelon, François de Salignac de La Mothe antiquity, 27, 29 Telemachus, 27 Force common or collective, 2, 3 individual, 2, 3 motive, of society, 40, 43 See also Government; Law Forced conformity, viii Fourier, François Marie Charles, 41 Fourierists, 46 France revolutions, 47 Fraternity legally enforced, 16, 17, 21, 22 Fraud, 13, 14 Freedom. See Liberty French Revolution, 38 public services, 10, 11 purpose of, v relaxed, 35 republican, 30, 39 responsibility and, 3, 47, 48, 51 results, 28 stability, 31 virtue, 39 See also Communism, Socialism Greece education, 26 law, 26, 27 republic, 29, 30 Sparta, 32, 36, 38 Greed, 5 Happiness of the governed, 28 History, 5 Humanity lost, 19, 20 Imports. See Trade Individualism, 3 Industry, protected. See Protectionism Jobs. See Employment Justice and injustice, distinction between, 7 generalized, 7 immutable, 49, 50 intentions and, 17, 18 law and, 3, 6, 49 reigning, 19 General welfare, 19 Government American ideal of, v corrupting education by, vi democratic, 29, 43, 44 education, 23, 48 force, 2, 3 function, 38 monopoly, 45 morality, 39 motive force, 40, 43 power, v, 47 Labor displaced, 4 Land. See Property Law Cretan, 28 defined, 2, 16 {59} Egyptian, 25, 26, 27, 28 fraternity and, 17 functions, 16, 31, 33, 49, 50 Greek, 26, 28, 29 justice and, 3, 4, 16, 51 morality and, 7, 21 motive force, 25 object of, 19 omnipotence, 44, 49 Persian, 26 perverted, v, 1, 5 philanthropic, 17 plunder and, 5, 13 posterior and inferior, 2, 3 respect for, 7, 9 Rousseau's views, 31, 33, 38 spirit of, 32 study of, 25 United States, 12 See also Legislation Lamartine, Alphonse Marie Louis de, fraternity, 17 government power, 48, 49 Lawgiver, 38, 43 Legislation conflict in, 32 monopoly on, 5 struggle for control of, 11, 12 universal right of, 7 See also Law Legislator. See Lawgiver; Politicians Lepéletier, Louis Michel de Saint Fargeau, 39 Liberty competition and, 44, 45 defined, 42 denied, 44, 45 described, 53 education and, 44, 45 individual, 3 as power, 43 returned to, 55 seeking, 38 Life, faculties of, 1 Louis XIV 27 Lycurgus government, 30, 35, 36 influence, 33, 40 Mably, Abbé Gabriel Bonnot de, 35, 39 Mankind assimilation, 2 concern for, 54 degraded, 25 divided, 23 inert, 23, 25, 26, 28, 31, 35, 36, 38, 39, 42, 43, 44, 47 inertia, 44 as machine, 31 nature of, 33 violation of, 52 Melun, Armand de, 52 Mentor, 28, 29 Mimerel de Roubaix, Pierre Auguste Remi, 52 Monopoly, 5, 45 Montalembert, Charles, Comte de, 13, 15 Montesquieu, Charles Louis de Secondât, Baron de, 29, 31 Morality law and, 21, 22 Morelly, 41 Napoleon, 41 Natural rights, v Nature, gifts of, 1 Oliver de Serres, Guillaume Antoine, 29 Order, 3 Owen, Robert, 41 Ownership. See Property Paraguay, 30 Persia, 26 {60} Personality, 2 Phalansteries, 55 Philanthropy. See Charity Plato republic, 30 Plunder absence of, 16 burdens of, 5, 6 defined, 17 general welfare and, 19 extralegal, 13 kinds, 13 legal, v, ix, 6, 13, 22 organized, 14 origin of, 6 partial, 15, 16 socialistic, 13 universal, 15, 16 Politicians dreams of, 36 genius of, 30 goodness of, 25 importance of, 22, 23 responsibility of, 27 social engineers, 22, 24, 32, 34, 37, 38, 40, 42, 44, 45 superior, 46, 54 Politics exaggerated importance of, 8 and favors, vi plunder through, vi Poor relief. See Charity; Welfare Power. See Government Property man and, 2 origin of, 5 Protectionism, 18 United States, 12 Proudhonians, 46 Providence, 55 Public relief, 10, 20, 29 Raynal, Abbé Guillaume, 33, 35 Religion, State, 22 Rent seeking, vi, vii Republic kinds of, 29 virtues of, 39 Revolt, 6 Revolution, 47 French, 38 Rhodes, 32 Rights individual, v, 2, 3 Roberspierre, Jean Jacques government, 38 lawgiver, 40 Rome virtue, 32 Rousseau, Jean Jacques disciples, 8, 9 on the lawgiver, 31, 33 Saint-Cricq, Barthélémy, Pierre Laurent, Comte de, 50 Saint-Just, Louis Antoine Léon de, 38 Saint-Simon, Claude Henri, Comte de doctrine, 41 Salentum, 27, 29 Security consequences, 3 Self-defense, 2, 37, 49, 50 Selfishness, 5 Serres, Oliver de, 29 Slavery, United States, viii, 12 universality, 5 Socialism confused, ix, 22 defined, 14, 15 disguised, 22 experiments, 23, 24 legal plunder, 13 sincerely believed, 18 social engineers, 22, 24 refutation of, 15 Socialists, vii Society enlightened, 37 {61} experiments, 23 motive force, 40, 43 object of, 36, 37 parable of the traveler, 54, 55 Solon, 33, 35 Sparta, 32, 36 Spoliation. See Plunder State. See Government Suffrage. See Universal suffrage Tariffs, vi, viii Telemachus, 27 Terror as means of republican government, 39, 40 Theirs, Louis Adolphe doctrine, 52 education, 45 Tyre, 32 United States, viii, 12 Declaration of Independence, v Universal suffrage demand for, 9, 43, 44, 46, 47 importance of, 10 incapacity and, 9 objections, 9 Vaucanson, Jacques de, 54 Vested interests, 13, 14 Virtue and vice, 28, 30, 35, 36, 40 Voting responsibility and, 9, 10 right of, 10 See also Universal suffrage Want satisfaction, 4 Wealth equality of, 11, 21, 29, 36 transfer of, vii Welfare, 10, 20, 28 The law perverted! The law--and, in its wake, all the collective forces of the nation. The law, I say, not only diverted from its proper direction, but made to pursue one entirely contrary! The law becomes the tool of every kind of avarice, instead of being its check! The law guilty of that very inequity which it was its mission to punish! Truly, this is a serious fact, if it exists, and one to which I feel bound to call the attention of my fellow-citizens. --Frédéric Bastiat 
59877	----	produced from scanned images of public domain material from the Google Books project.) _THE NEW JERSEY LAW JOURNAL PUBLISHED MONTHLY_ VOLUME XLV FEBRUARY, 1922 No. 2 _SOME REMINISCENCES, MOSTLY LEGAL_ _BY HON. FREDERIC ADAMS, LOS ANGELES, CAL._ IV. CERTAIN COURTS AND LAWYERS. Ever since my boyhood the drama of the courtroom has interested me more than the drama of the theatre. I well remember my introduction to litigated business. I was a youngster on a visit to Boston when some one took me to a Court where a patent case was on trial. I was duly impressed by the imposing personality of the Judge, but my attention was soon fixed by the witness on the stand, whom I happened to know, for my father had once introduced me to him. He was Professor James Jay Mapes, of Newark, New Jersey, a chemist and inventor, one of whose many activities was the manufacture of fertilizers. I had visited one of his factories, somewhere between Newark and Elizabeth, and was surprised to see him at Boston in the rôle of a mechanical expert in a patent case. As the examination carefully proceeded I concluded, with the rashness of inexperience, that the examiner was a very dull man, for he seemed so slow to get an idea. What I then mistook for dullness I now recognize as professional skill, employed by counsel to unfold to the Court and jury the details of a complex mechanism. I know now more about that case than I did then, for, rather to my surprise, I have recently found a report of it in the first volume of Fisher's "Patent Cases," at page 108. The time was August, 1851, when I was not quite eleven years old. The courtroom was that of the Circuit Court of the United States for the First Circuit. Samuel Colt was plaintiff. The Massachusetts Arms Company was defendant. The counsel for the plaintiff were E. N. Dickerson, C. L. Woodbury and G. T. Curtis, and for the defendant R. A. Chapman, G. Ashmun and Rufus Choate, and the Judge was Mr. Justice Levi Woodbury of the Supreme Court of the United States, who was then testing the validity of the patent for the Colt revolver. The charge is reported in full. The verdict was for the plaintiff. Judge Woodbury was a New Hampshire man of some note, then in his sixty-second year, called by Thomas H. Benton "the rock of the New England Democracy," who had been Senator of the United States from New Hampshire, and a member of the Cabinets of Jackson and Van Buren, and, on the nomination of President Polk, had succeeded Judge Story as a member of the Supreme Court of the United States. The trial of the case in which I saw him was one of his last official duties, for he died in the following month. He was succeeded by Benjamin R. Curtis, of Boston, on the nomination of President Fillmore. While I was at the Harvard Law School in 1863-4, Richard H. Dana was United States District Attorney at Boston, and I often saw him at Cambridge, where he lived. His book, "Two Years Before the Mast," was and is a favorite of mine. I suppose that I have read it twenty times, and I hope that the boys of this day read and love it. It is in a class by itself. There is, I think, not in English, and probably not in any language, another account of seafaring life written in the forecastle by one of the crew, who was also a gentleman and a scholar and master of a charming style. The veracity and spirit of the narrative have made it a classic both here and in England. In California it is particularly valued, for Dana was one of the pioneers and had sailed through the Golden Gate on the "Alert" in the winter of 1835-6, many years before the Mexican War and the discovery of gold, when San Francisco as yet was not. When, at the end of the visit, the good ship floated out on the tide, herds of deer came down to the northerly shore to watch the unusual sight. Dana left college and went on this voyage to cure an affection of the eyes. After his return he graduated at Harvard in the class of 1837 and became a lawyer. Mr. Dana was qualified by nature and training to become a leading figure in the public life of this country, and his ambition was that way, but the cards ran against him. As Goldsmith said of Burke, he was "too nice for a statesman, too proud for a wit," high-strung and sensitive as a race-horse, well bred and distinguished in bearing, a clear, graceful and forcible speaker, an admirable advocate, and an accomplished jurist. One of his greatest professional efforts and triumphs was his argument before the Supreme Court of the United States in the Consolidated Prize Cases, when he had to make it clear to the Court how it was that the stupendous struggle in which the country was engaged could be a-war with belligerent rights as between ourselves and other nations, and a local insurrection as between ourselves and the South. It may be remembered that, at the centennial anniversary of the battle of Lexington, Mr. Dana delivered the oration. It begins with the words, "How mysterious is the touch of fate which gives immortality to a spot of earth, to a name." It is a noble commemorative address. Concord has always plumed itself because it had a real fight, while the Lexington men only stood up to be shot at and did not damage the English. As the anniversaries were approaching and good-natured rivalry was in the air, Concord issued a prospectus of some kind, which did not suit Mr. Dana's fastidious taste, and he said to Judge Hoar, of Concord: "How is it, Judge, that you folks at Concord have sent out such a shabby, badly-written paper? It is positively ungrammatical." "O," said the Judge, "you know, Dana, at Concord we always did murder the King's English." While Mr. Dana was United States District Attorney he tried the last slave-trading case. The vessel was the "Margaret Scott," which was fitted out, I think, at New Bedford, but did not actually embark on the voyage. The trial was before Mr. Justice Nathan Clifford, of the Supreme Court of the United States. I heard Mr. Dana's summing up and the charge to the jury. Judge Clifford was a tall man of great girth. He stood throughout his admirable charge, which took him an hour to deliver. After about half an hour he told the jury that they might be seated. Governor Hoadley, of Ohio, who was a friend of Judge Swayne of the United States Supreme Court, once told me this story, which he got from Judge Swayne. Judge Grier, when on the Bench sat next to Judge Swayne and, during the latter part of his service, was crippled and dozed a good deal, and sometimes used to annoy Judge Swayne by speaking to him in a stage whisper. A prize case was on trial and there was discussion about belligerent rights, which one of the counsel pronounced belli_ge_rent. The novelty of the pronunciation roused Judge Grier, who said to Judge Swayne quite audibly: "Brother Swayne, Brother Swayne, Judge Clifford is the belli_ge_rent member of this Court." In 1868, while at Boston, I heard part of the argument in the remarkable case of Hetty H. Robinson v. Thomas Mandell, Executor and others. The case was tried before Judge Clifford in the Circuit Court of the United States. Sidney Bartlett and Benjamin R. Curtis (who was then an ex-Judge of the Supreme Court of the United States), were leading counsel for the complainant, and Benjamin F. Thomas, an ex-Judge of the Supreme Court of Massachusetts, was leading counsel for the respondents. The complainant, who is better known to us by her married name of Hetty Green, had filed her bill setting up a special contract between herself and her aunt, Sylvia Ann Howland, for an exchange of mutual wills, and that neither should make any other will without notice to the other and a return of the other's will. Miss Howland had died, leaving a will not in favor of Hetty, but largely to charity. The respondent, Mandell, was her executor. The case is reported in 3 Clifford's Circuit Court Reports, page 169. Judgment was for the respondents, Judge Clifford saying, in his decision: "In this case there was no competent evidence to show that there was any agreement as to the making of mutual wills, and there was nothing on the face of the instruments to warrant any such conclusion." Mrs. Green, whom I saw for the first time, was in Court with her husband, a large, dressy man, looking like an English guardsman. Much testimony had been taken. There was a question of forgery, and enlarged photographs of signatures were standing about. Judge Curtis spoke for two days, one day on the facts and one day on the law, a length unusual for him, for he was generally brief. I heard Mr. Bartlett's opening and part of Judge Curtis's discussion of the facts. Mr. Bartlett was a great lawyer, but not, I should say, a very good speaker. His reputation was for condensation and concentration; for making a direct thrust at the central point, with small regard for introductory and collateral matters. Someone, I think a Judge of the Massachusetts Supreme Court, said that Mr. Bartlett's mental operations on matters of law bore about the same relation to those of the average lawyer that a book of logarithms does to a common school arithmetic. He continued in active practice until about the age of ninety, made a large fortune, and was famous for his high charges. He was no recluse, but a club man and citizen of the world. This was not the first time that I heard Judge Curtis. To follow any argument of his was an ever fresh delight. I remember as though it were yesterday the neatness and felicity with which, in the case just mentioned, he dismissed one of several propositions submitted by his adversary, saying, with his usual dignity and composure: "I now come to another of this series, I believe it is the ninth. Like all of them, it is not pleaded; like most of them, it is not proved; and, like each and all of them, it would be totally immaterial if it were both pleaded and proved." And then, in his last sentence, with exquisite tact, he lightly touched a certain string: "On one side of this case stands the complainant, with a large fortune; on the other side is a charity; but this Court observes the divine injunction, 'Thou shalt not respect the person of the poor, nor honor the person of the mighty, but in righteousness shalt thou judge thy neighbor!'" My friend, Mr. Frank E. Bradner, of the Essex Bar, has referred me to some lines in "The Professor At The Breakfast Table" which speak of Judge Curtis, who was a classmate of Dr. Holmes: "There's a boy--we pretend--with a three-decker brain, That could harness a team with a logical chain; When he spoke for our manhood in syllabled fire, We called him 'The Justice,' but now he's 'The Squire'." He who runs may read. The class of '29 had its twenty-five years meeting, always a great event, in 1854. Judge Curtis was then on the Bench and it was probably then that he spoke for the manhood of the class. He resigned his office in September, 1857, and became a "Squire." Judge Curtis was a master of the difficult art of Nisi Prius duty. No one could be more courteous, patient and impartial, better equipped with law, more accurate as to fact, or clearer in his rulings and instructions. Any Judge who has spent several of the best years of his life in learning how easy it is to try badly a case with a jury and how hard it is to do it well, will be interested to read the passage which I quote from a private letter written by Judge Curtis to Mr. Webster after he had been on the Bench for about a month: "I presume you will agree with me that there is no field for a lawyer which, for breadth and compass and the requisitions made on all the faculties, can compare with a trial by jury; and I believe it is as true of a Judge as of a lawyer that, in the actual application of the law to the business of men, mingled as it is with all passions and motives and diversities of mind, temper and condition, in the course of a trial by jury what is most excellent in him comes out and finds its fitting work, and whatever faults or weaknesses he has are sensibly felt." The great event of his judicial career was his dissenting opinion in the case of Dred Scott v. Sandford, (10 Howard 393, Dec. Term, 1856), in which he asserted the constitutional power of Congress to prohibit slavery in the territories. This was the doctrine of Webster and Mason and of the coming Republican party. Mr. Lincoln, in his debate with Douglas, carried this dissenting opinion with him. There were nine Judges, each of whom filed an opinion. Five Judges were from slave States and were probably themselves slave-holders. Chief Justice Taney wrote an opinion which is called "Opinion of the Court," but may be more accurately described as the opinion of Chief Justice Taney and Judge Wayne, for Judge Wayne, who also filed a separate opinion, was the only one of the six Judges voting with the Chief Justice who concurred in all his points, reasonings and conclusions. Even at this day one cannot read without a shudder the Chief Justice's unflinching declaration as to the helpless and hopeless status of the negro. Judges McLean and Curtis filed dissenting opinions. There are complexities in the record which make it difficult for even a lawyer to determine just how much of the opinions filed by a majority of the Court is decision and how much is _dictum_. The Chief Justice withheld from the files the so-called "Opinion of the Court," and made additions and alterations to the extent of eighteen pages, in evident answer to the filed dissenting opinion of Judge Curtis, and instructed the clerk not to furnish a copy of the "Opinion of the Court" to anyone without the permission of the Chief Justice before it was published in Howard's "Reports," so that Judge Curtis, on application to the clerk, was unable to obtain the amplified opinion. There ensued a correspondence between Judge Curtis and the Chief Justice in which Judge Curtis kept his temper admirably and the Chief Justice nearly, if not quite, lost his, and did so, I think, because he felt that he was in the wrong. Judge Curtis, by leaving office in 1857, at the age of forty-seven, surprised his friends and the country. There were two reasons for it. The state of the Court was such that he did not feel comfortable in it. This does not refer to his controversy with the Chief Justice, to whose memory he afterwards paid a cordial tribute. Indeed, it may be doubted whether he would have felt much more comfortable as a member of the Court under the reign of Lincoln than he was under the reign of Buchanan. He was no party man and did not belong in either camp. His all-sufficient and avowed reason for resigning was that he could not live on a salary of $8,000, and felt bound to secure for himself and his family what Burns calls "the glorious privilege of being independent." This purpose was amply realized. He went at once and inevitably to the front rank of the American Bar and remained there for seventeen years, during which time his professional earnings amounted to about $650,000. This was not in our day of big business, when members of the Bar, who are great men of affairs, but not necessarily great lawyers, receive, or are supposed to receive, rich rewards for services in the organization, manipulation and combination of colossal corporate interests. The annual income of Judge Curtis was not much over $38,000, but, like Mercutio's wound, it was enough, it would serve, and it was fairly earned in the regular practice of his profession, at his office desk, in the trial of cases, and in writing opinions on important questions submitted to him from all parts of the country. He stood so high that his written opinion would often be accepted by both sides of a controversy as the veritable voice of the Law itself. I first saw and heard Judge Curtis at New Haven in 1864, in the trial of a suit in equity brought in the Circuit Court of the United States for the Second Circuit by the Lowell Manufacturing Company against the Hartford Carpet Company for an injunction and accounting. Judge Curtis led for the complainant, and the special interest of the case was that he had against him an opponent worthy of his steel, a man five years his senior, of different race, creed, politics and temperament, Charles O'Conor, the brilliant leader of the Bar of New York. The two men were evidently no strangers to one another. Judge Curtis had said at a dinner party that he regarded Mr. O'Conor's management of the Forest Divorce Case as the most remarkable exhibition of professional skill ever witnessed in this country. In the case which I heard at New Haven the associate counsel were able men, Mr. Edwin W. Stoughton for the complainant and Mr. George Gifford for the respondent, both prominent patent lawyers of New York. The Judges were Samuel Nelson of the Supreme Court of the United States and William D. Shipman of the District Court. It was pleasant, after the crudities of county practice, to see the mutual courtesy of the two leaders. I happen to remember a few gracious words of Judge Curtis: "and such rights, as no one knows better than the admirable lawyer on the other side, do not lie in covenant, but do lie in grant." The argument was not fully intelligible to me, for it dealt largely with considerations arising out of written contracts with which I was not familiar, but it was entertaining and instructive to watch the two men. There came on each side a grateful gleam of fun. While Mr. Stoughton was speaking of the terms of a contract, Judge Curtis, who sat near him, interjected the words: "and no longer." Mr. O'Conor in his argument laid hold of this and said: "Why, you might as well say, 'as long as grass grows and water runs,' 'and no longer'." I recall only one precedent for such an expression. It comes from a land from which we get very little law, though it has given us some lawyers. It is a verse of an old Irish song: "Then Pat was asked would his love last, And the chancel echoed with laughter, O, O yes, said Pat, you may well say that, To the end of the world and after, O." Mr. Gifford, in his argument, had referred to a certain United States statute which, as he said, the Supreme Court had found difficulty in construing. Mr. Curtis, in his closing argument, said: "That statute reminds me of a story of a learned divine of this State who once preached a sermon upon a difficult text in one of St. Paul's Epistles, and said, finally: 'My brethren, I have now given you the results of my most careful study and reflection upon this passage of Scripture, but I feel that, in justice to myself, I ought to say that I very much wish that the Apostle had not used those words'." When Mr. O'Conor, who followed his junior, Mr. Gifford, took his seat after speaking for five hours, the afternoon was getting late, and I heard Judge Curtis say to Mr. Stoughton: "I have to answer more than seven hours of solid argument. I cannot do it in two hours, and shall ask that the case go over until to-morrow." It was so ordered. In the evening he said to a friend of mine: "Nothing has been said on the other side which cannot be answered. The question is whether I can do it." He spoke the next day for two hours and twenty minutes and closed the case. This litigation resulted in a victory for Mr. O'Conor and his associates. In July, 1864, Judge Nelson wrote a short opinion dealing with contractual rights and gave judgment for The Hartford Carpet Company. (Case No. 8569, 15 Federal Cases, page 1021, 2 Fisher's Patent Cases, 472). The Judges and counsel, with the juniors from the Boston and Hartford offices, dined together every day at the New Haven House, and a congenial company it was. Mr. O'Conor, when he was at liberty, would put on the back of his head the silk hat which he always wore and say: "Who's for a walk?" and go off on a tramp under the elms. He was a spare, active man, of nervous temperament and great vitality. In New York he lived at Fort Washington, on the Hudson, and used to rise early, walk to his club on Fifth Avenue, breakfast there and then go down to his office. The keynote of Judge Curtis was serenity, that of Mr. O'Conor was intensity. Beginning to tread law at the age of sixteen, Mr. O'Conor fought his way to the lead, an achievement which no one who knows New York City will be disposed to underrate. In the fine old common law phrase, he "made war for his clients." He was tremendously combative within the rules of the game, and absolutely fearless and independent. His opinions were often extreme and sometimes eccentric. I heard him say at the New Haven House, in the middle of the War for the Union, to a man who asked for political advice: "Take the bull by the horns. Every dollar spent and every life lost in this War is just so much thrown into the great deep." It was like him to offer his professional services to Jefferson Davis in his evil day. He prophesied or hoped that "some future Tacitus" would arise to pronounce the verdict of history on Chief Justice Taney as _ultimus Romanorum_. There was a noble side to Mr. O'Conor's nature. With all his law he was an idealist. In accepting some now-forgotten nomination to the Presidency, he wrote this ringing sentence: "To spend in one's allotted place a blameless life of honest effort, and at its end to perish nobly contending in the Thermopylæ of an honest cause, has always been to me the perfection of a happy individual destiny." Let this be his epitaph. It remained for Judge Curtis, a few years later, to perform a professional duty which made him for the second time a prominent figure in the law and politics of the country. This was his opening argument for the defense in the Impeachment Trial of President Johnson. In a private letter written during that trial, he said: "There is not a decent pretense that the President has committed an impeachable offense." Most intelligent persons will now agree with him. His argument is a masterpiece of luminous reasoning and exposition, and concludes with this grave warning: "It must be unnecessary for me to say anything concerning the importance of this case, not only now, but in the future. It must be apparent to everyone in any way connected with or concerned in this trial that this is and will be the most conspicuous instance which ever has been or can ever be expected to be found of American justice or American injustice, of the justice which Mr. Burke says is the great standing policy of all civilized States, or of that injustice which is sure to be discovered and which makes even the wise man mad, and which, in the fixed and immutable order of God's providence, is certain to return to plague its inventors." * * * * * A landlord is held to be deprived of his property without due process of law by a statute giving the tenant the privilege of holding over at pleasure at expiration of his lease, in Hirsh v. Block, 267 Fed. 614, annotated in 11 A.L.R. 1238, on the constitutionality of rent laws. MAXWELL v. PINYUH. (N. J. Supreme Court, Jan. 20, 1922). _New Trial--Rules of Supreme Court--Orders of Judges--Relaxation of Rules._ Case of Louise Sylvester, Plaintiff, against George S. Pinyuh, Defendant. On motions to vacate certain Rules and Orders. Mr. Harry R. Cooper for Plaintiff. Mr. William J. Hanley, Mr. O. J. Pellet and Mr. Harlan Besson for Defendant. Heard before Justices TRENCHARD, BERGEN and MINTURN. PER CURIAM: This is a motion by the defendant to vacate certain rules heretofore made in the above entitled cause, and a counter motion by the plaintiff to strike out the restraint imposed upon her in a rule to show cause granted by Mr. Justice Minturn on the 25th day of October, 1921, and for permission to perfect her proceeding for a new trial. The facts are substantially as follows: In September, 1921, the case (a Supreme Court issue) was tried in the Monmouth Pleas on an order of reference made by a Justice of the Supreme Court. The jury found a verdict for the defendant, and the plaintiff, on the 22d day of September, applied to the trial Judge for a rule to show cause why a new trial should not be granted, which order was allowed by the trial Judge and was made returnable before him on the 6th day of October, 1921. On the return day of the rule, the attorney for the defendant appeared before the Judge and objected to his hearing the rule on the ground that, it being a Supreme Court issue, the rule must be heard by the Supreme Court. Judge Lawrence reserved decision in the matter, and thereafter came to the conclusion that the action had become a Common Pleas case, and that the rule could properly be heard before him, and fixed October 7th, 1921, for the hearing of same. In the meantime defendant's attorney procured from Mr. Justice Minturn a rule to show cause, returnable before the Supreme Court on the first Tuesday of November, 1921, why judgment should not be entered in favor of the defendant against the plaintiff on the postea, and why the trial Judge should not sign the postea, and restraining the plaintiff from further proceedings until the further order of the Court. A copy of this rule was served upon Judge Lawrence and he thereupon concluded that the rule must be heard before the Supreme Court, and he signed the postea. Plaintiff's attorney was evidently under the impression that, after the postea had been signed by Judge Lawrence, the object of the rule allowed by Justice Minturn was served, and that the stay contained therein was no longer effective and did not restrain him from taking the necessary proceedings to bring on the argument of the rule before the Supreme Court. He accordingly obtained from Judge Lawrence (who evidently entertained the same view) a rule amending the previous rule granted by him to the extent that the argument should be heard before the Supreme Court on the first Tuesday of February. Apparently, because of the uncertainty on the part of plaintiff's attorney as to whether the rule originally granted by Judge Lawrence, and the reasons on which plaintiff rested her motion for a new trial, should be filed in the office of the Clerk of the Supreme Court, or in the office of the Clerk of the Court of Common Pleas, these papers were withheld from the files and were not filed within the ten days required by the rules of this Court. A copy of the reasons and rule were, however, immediately served on the attorney for the defendant. Depositions were also taken by the plaintiff under the rule. On the 15th day of December, 1921, plaintiff's attorney obtained from Mr. Justice Kalisch a rule permitting plaintiff to file the rule to show cause allowed on the 22d day of September, as amended by the rule made by Judge Lawrence on the 30th day of November and the reasons on which plaintiff based her motion for a new trial, with the same force and effect as if the same had been filed within the time limited by law, and, immediately after that rule was granted, filed the rule made by Judge Lawrence and the plaintiff's reasons in the office of the Clerk of the Supreme Court. A copy of the depositions which were taken under the original rule granted by Judge Lawrence were also served on the defendant's attorney. No state of the case has yet been prepared and served, but it is stated to be the plaintiff's intention, should the Court permit her to do so, to immediately prepare and print her case and bring on the rule for argument at the February Term of the Supreme Court. The defendant moves to vacate the rule of September 22d, and the rule of November 30th, amending it; to vacate the rule allowed by Justice Kalisch permitting plaintiff to file such rules and the reasons. The plaintiff moves to vacate the restraint imposed upon her by the rule allowed by Justice Minturn October 25, 1921, and also moves to be allowed to perfect her proceedings for a new trial, and to bring on the same for argument, according to the rules and practice of the Court, at the February term. We think the defendant's motion should be denied and the plaintiff's motions granted. It is of course apparent, and the plaintiff freely admits, that the rules to show cause why a new trial should not be granted were irregular and defective and that they have not been brought on in accordance with the rules of the Supreme Court; but evidently the sole reason therefor was the confusion existing, both in the mind of plaintiff's attorney and that of the trial Judge, as to whether the application for a new trial should be heard before the trial Judge or before the Supreme Court. It seems not to be disputed that substantial reasons exist for giving consideration to plaintiff's application for a new trial. In granting the rule to show cause why a new trial should not be granted the trial Judge evidently felt that the plaintiff should be given her day in Court upon the reasons which were presented to him why the verdict of the jury should not be set aside. We feel that this Court should not allow the technical infirmities in the proceeding to deprive the plaintiff of an opportunity to be heard when, by a suspension or relaxation of its rules, a possible injustice may be avoided. Rule 217 of the Supreme Court provides: "The time limited in these rules for the doing of any act may, for good cause, be extended (either before or after the expiration of the time), by order of the Court, or a Justice or a Judge thereof." Rule 218 provides: "These rules shall be considered as general rules for the government of the Court and the conducting of causes; and as the design of them is to facilitate business and advance justice, they may be relaxed or dispensed with by the Court in any case where it shall be manifest to the Court that a strict adherence to them will work surprise or injustice." We therefore deny defendant's motion to vacate the rules heretofore obtained by the plaintiff to perfect her proceedings for a new trial, and we grant the plaintiff's motion to vacate the restraint imposed in the order of Mr. Justice Minturn, and also grant the plaintiff permission to perfect her proceedings for an application for a new trial, and also permission to bring the same on for argument at the February term of this Court, according to the rules of this Court. The relief thus granted to the plaintiff will be upon terms that she pay the defendant costs upon these motions; all other costs to abide the event. STATE v. GROSS. (N. J. Supreme Court, Jan., 1922). _City Ordinance Against Disorderly Conduct--The Disorderly Act--Removal of Persons from Railroad Train._ Case of The State against Jacob Gross, Prosecutor. On certiorari dismissing conviction. Mr. Charles W. Broadhurst for the Rule. Mr. Joseph J. Weinberger for Prosecutor. Argued before Justice MINTURN by consent. MINTURN, J:. The prosecutor of this writ was convicted before the Recorder of the City of Passaic for violating section 72 of an ordinance of that city which provides as follows: "That any person, who shall in any place in the city of Passaic, make, aid or assist in making any improper noise, riot, disturbance or breach of the peace, or shall behave in a disorderly manner, or make use of obscene or profane language ... shall each be liable to a penalty of five dollars for every offense." The violation complained of was that, while he was a passenger on an Erie Railroad train, and while the train had stopped at Passaic, he refused to remove his baggage from between the seats to the baggage compartment at the request of the conductor, as a result of which the prosecutor became noisy and boisterous, and the conductor thereupon caused the removal of the prosecutor and his baggage from the car, and turned him and it over to a local police officer. He was thereafter prosecuted as a disorderly person and convicted of that offense. Various legal grounds are advanced as a basis for vacating the conviction. One only I deem fatal to its validity. The ordinance in question was intended to apply to public places within the city for the purpose of suppressing disorderly conduct therein, and, while in a limited sense a steam railroad car is a quasi public place as between the State and the railroad, it cannot be reasonably construed as furnishing such a public place within the contemplation of the local legislative body, when they passed this ordinance. A similar contention was before this Court in State v. Lynch, 23 N. J. L. J. 45, where it was held that a saloon, although a public house in contemplation of law, is not a "public place" within the contemplation of the provisions of the Disorderly Act. The words "public places" in this connection were held to be "such places as are in general use for travel by all citizens, and in which all have at all times an equal right of passage and repassage." Adopting this rule of construction the railroad coach in question was not a "place" to which the jurisdiction of the city can be said to extend, and the word "place," therefore, in this connection, must be held to be equivalent to "public place." That this is so is made manifest from the context of the section of the ordinance invoked upon the doctrine of _noscitur a sociis_. Thus, the person charged must not only be in "a place in the city of Passaic," but he must "make, aid or assist in making any improper noise, riot, disturbance or breach of the peace, or shall behave in a disorderly manner or make use of obscene or profane language." This enumeration of specific acts of misdemeanor connotes, generally speaking, the ordinary offense of disorderly conduct, such as is condemned in our Disorderly Act; and, as has been observed, such disorderly conduct, to be the subject of public prosecution, must occur in a "public place," within the jurisdiction of the City Magistrate, and the environment of the city. A travelling car manifestly is not such a public place. 32 Cyc. 1249 and cases. The fact that the prosecutor was noisy in asserting his rights can make no difference in the result, for we may, from experience, judicially notice the fact that the inter-urban railroad train presents no suitable accommodation for one inclined to indulge in either introspection or somnolence. Therefore, an ordinary conversation in a major key when indulged, as was the case here, between a conductor, with a book of railroad rules in his hand emphasizing his duty, and a protesting commuter with an innocuous bag, the owner of which attempted to vindicate in Yiddish-English the rights of the American travelling public, might be the means of provoking an innocent mental diversion for the benefit of the curious passengers, but could hardly be said to evolve the serious accusation of disorderly conduct in a public place, within the meaning of the ordinance. A discussion in an elevated key on a railway carriage, whether it concern a bag or the suspected contents of a bag, is not an unusual episode in everyday American railway life; nor can it be said to be without its compensation and exhilarating effect upon the general body of passengers, so long as it does not assume the intolerant form of vulgarity, or obscenity, and thus warrant the ejection from the train of the malodorous disputant. The fact, of course, is that the voluminous resonance of a conversation cannot be utilized as a standard to guage either its criminality or its literary value, and yet debates in the halls of legislation, in the Courts of justice, not to speak of fulminations from the pulpit, are often measured by the volume of vocalization and the density of lung power behind them. If precedent were invoked from the classics, we have it in "Sweet Auburn;" where, in fancy, we hear the "Loud laugh that spoke the vacant mind;" and Goldsmith's pen picture has placed the vociferous schoolmaster among the immortals, whose "Words of learnèd length and thundering sound Amazed the gazing rustics ranged around." All of this, and more, is familiar experience on the railway train, and thus far has escaped the proscription of the authorities. In Mullen v. State, 67 L. 450, the prosecutor in asserting his rights at a schoolmeeting became, in the language of this Court, "quite noisy and excited." His conception of public duty led him to indulge in what the complainant called "loud language," and for this he was prosecuted under the provisions of the Disorderly Act, which prohibits in "public places" the use of "loud, offensive or indecent language." There was no proof of the indecency or offensiveness of his speech, and this Court held that the uttering of "loud" language was not enough to sustain the complaint. These considerations, without reference to the other objections presented, lead me to conclude that the judgment of conviction should be vacated, and such will be the order. STATE v. CAPRIO. (Before Hon. Fred G. Stickel, Jr., as Magistrate. Nov. 2, 1921). _Prohibition Enforcement Act--Search Warrant--Seizure of Liquor Permits and Certain Liquors._ Case of State against Luigi Caprio. On application to restore property and liquor taken under search warrant issued under the Prohibition Enforcement Act. Before Hon. Fred G. Stickel, Jr., a Judge of the Court of Common Pleas, acting as Magistrate under the Prohibition Enforcement Act. Mr. Anthony R. Finelli for application. Mr. J. Henry Harrison, Prosecutor of the Pleas, opposed. STICKEL, JR., MAGISTRATE: On October 3rd, 1921, acting as Magistrate under the Prohibition Enforcement Act, I issued a search warrant directed to Richard Roe, authorizing a search of the drug store, cellar and rooms attached at 7 Bloomfield Avenue, Belleville, New Jersey, and a seizure of the liquor there found, together with all vehicles, fixtures, containers, utensils, machines, contrivances, or paraphernalia whatsoever, there found used or intended to be used in the illegal keeping, manufacture, transportation or sale of liquor. This warrant was based upon an allegation by Nick Takush that he believed liquor was unlawfully possessed in such place, and that he based his belief upon the fact that he had on several occasions purchased whiskey at that address for beverage purposes, and on the 30th day of September, 1921, had purchased two gallons of alcohol there for beverage purposes. Acting under this warrant, the sheriff, through under-sheriff Alfred C. Walker, returned the body of Luigi Caprio, admittedly the owner of said 7 Bloomfield Avenue and of the drug store, cellar and rooms attached. The said under-sheriff also filed an inventory showing that he had seized under said search warrant a two gallon can labeled, "Columbia Spirits;" a five gallon can labeled "Alcohol;" one bottle labeled "Columbia Spirits;" some liquor permits; one five gallon can, full, labeled, "Columbia Spirits;" one bottle labeled "Aromatic Elixir;" one bottle labeled "Alcohol." Application is now made under sections 63 and 64 of the Prohibition Enforcement Act to restore the liquor and property so taken, on the ground that there was no probable cause for believing the existence of the grounds on which the search warrant was issued, and on the further ground that the liquor and chattels taken upon such search warrant are not the same as referred to in the search warrant. There is absolutely nothing in the testimony taken before me to support the contention that there was no probable cause for believing the existence of the grounds upon which the search warrant was issued, but there is some merit in the other contention. The search warrant directs the taking by the sheriff of "liquor found in and upon the premises aforesaid, together with any and all vehicles, fixtures, containers, utensils, machines, contrivance, or paraphernalia whatsoever found, used or intended to be used in the illegal keeping or sale of liquor." It will be readily seen that the sheriff would only be justified in his seizure of the liquor permits if they came within the description "paraphernalia," and clearly the word "paraphernalia" cannot be interpreted, particularly in the light of the words which precede it in the search warrant, to cover liquor permits. The testimony also showed that the five gallon can labeled "Columbia Spirits" was delivered by a drug concern to Caprio while the sheriff's men were there or about the time they arrived. Certainly this liquor is not the liquor referred to in the search warrant, and consequently, not being the liquor referred to in the search warrant, it must be restored to the person from whom it was taken. Therefore an order may be presented, reciting that, so far as the Prohibition Enforcement Act is concerned, the search warrant issued by virtue of the authority thereof is not sufficient to justify the sheriff in retaining the liquor permits and five gallon can labeled "Columbia Spirits," and that in view of the Prohibition Enforcement Act the said liquor permits and "Columbia Spirits" be restored to said Caprio. HARSEL v. FICHTER & ENGELHARDT. (Essex Common Pleas, Dec. 27, 1921). _Workmen's Compensation Acts in New Jersey and New York--Applying to Wrong Tribunal--Election of Tribunal._ Case of Julia Harsel, Petitioner, against William Fichter and John Engelhardt, copartners trading as Fichter & Engelhardt, Defendants. On petition for compensation under Workmen's Compensation Act. Messrs. Kent & Kent for Petitioner. Messrs. Kalisch & Kalisch (by Mr. Isador Kalisch) for Respondent. STICKEL, JR., J.: The employers contend that the petition for compensation in this case should be dismissed because the contract of employment was made in New York, and because the petitioner elected to proceed under the compensation law of New York, subsequently petitioning for compensation under the New Jersey law. In considering the case, I felt I would be aided if I had before me the testimony taken in the New York compensation action, and counsel for the defendant very kindly supplied me therewith. From such testimony, which I have filed in this case, as well as from the deposition filed, I am satisfied and find as a fact that the deceased was hired in New Jersey by Fichter & Engelhardt. It is quite clear to me that the deceased heard of the New Jersey job of Fichter & Engelhardt at the Union rooms in New York and that, being attracted thereby, he, after giving up the New York job, came to the New Jersey job, was seen by the foreman, Millhouse, and employed on the spot. Engelhardt appears to be a silent partner of Fichter, according to his own testimony, and the firm is, in fact, made up as stated in the title to this cause. Furthermore, even though the contract of employment had been made in New York, the accident causing the deceased's death having taken place in New Jersey, the case falls within the New Jersey Compensation Act, and this notwithstanding the existence of a New York Compensation Act. American Radiator Company v. Rogge, 86 N. J. L. 436, aff. 87 N. J. L. 314; 245 U. S. 630; David Heiser v Hay Foundry & Iron Works, 87 N. J. L. 688 (at this time the New York Compensation Act was in force); West Jersey Trust Company v. Philadelphia & Reading Realty Company, 88 N. J. L. 102. As to the question of election, the contention of the employers is wholly without merit. The petitioner, through attorneys other than those who now represent her, applied for compensation under the New York Compensation Act. The Commission held that it had no jurisdiction; that the case was not within the New York jurisdiction, apparently, from the testimony taken, because the Commission found that the contract of employment with petitioner was made in New Jersey and the accident took place there. Thereupon petitioner applied for compensation in New Jersey, and an informal award had been made in New Jersey, and a day fixed to hear the case on the formal petition, before someone in New York claiming to represent Mrs. Hassel, the petitioner, had applied for a reopening of the finding of no jurisdiction by the New York Commission. Petitioner in that posture of affairs advised the New York Commission of the New Jersey proceeding, and asked that the New York proceeding be stayed "pending the trial of her case in New Jersey, and then after and when we receive compensation over there, as I understand the law in this State, Mrs. Hassel can still come in and get the deficiency claim from the Compensation Bureau here," and this request was duly granted. What acts of petitioner constitute the election which should bar this New Jersey proceeding? Certainly not the original application for compensation in New York, for that application was dismissed, and it now appears erroneously, for lack of jurisdiction, and, under such circumstances, it is clear that she has not made a final and binding election such as would preclude her applying to the tribunal in fact possessing jurisdiction. 15 Cyc., p. 262, and cases cited; 20 Corpus Juris, p. 37, and cases cited. If a mistake of a petitioner in applying to the wrong tribunal for relief would not preclude application to the right tribunal (see 15 Cyc., supra) certainly the erroneous finding of no jurisdiction by the tribunal applied to could not have a greater and more binding effect upon the petitioner. And even a correct finding of no jurisdiction would not preclude application for relief to the tribunal possessing jurisdiction. 20 Corpus Juris, p. 27. The only other conduct of petitioner which is relied upon to constitute an election is her request to the New York Commission after someone unauthorizedly had applied for a re-opening of the case, and after the institution of the New Jersey suit to stay the New York proceedings until the completion of the New Jersey proceeding, so that petitioner might obtain in New York the difference between the New York compensation allowance and that of New Jersey, and clearly such conduct, which is, in effect, an election to proceed in New Jersey on the main case, cannot be held to constitute an election to proceed in New York. I, therefore, find that the petitioner is entitled to compensation for three hundred weeks at the rate of twelve dollars per week, and to one hundred dollars, the statutory allowance for funeral expenses, and I will allow counsel for the petitioner a counsel fee for services in this Court of two hundred and fifty dollars. A determination of facts should be prepared by counsel for the petitioner, submitted to counsel for defendant for inspection, and then transmitted to me for signature. STATE v. ASH. (Essex Common Pleas Jan. 6, 1922). _Driving Automobiles Under Influence of Liquor--Review of Evidence Below._ Case of State of New Jersey against Joseph A. Ash. On appeal from Third Criminal Court of Newark. Mr. John P. Manning for State. Mr. Andrew Van Blarcom for Defendant. STICKEL, JR., J.: The defendant-appellant was found guilty in the Third Criminal Court in the City of Newark, Judge Horace C. Grice presiding, for driving an automobile while under the influence of liquor, in violation of Section 1, Chapter 67, of the Laws of 1913, a supplement to the Disorderly Person Act, and he now appeals to this Court. The first point urged as a ground for reversal of the conviction is that "at the close of the case there was a reasonable doubt as to the applicant's guilt; that the State had not sustained the burden of proof, and that the weight of the evidence favored the appellant." It is to be doubted whether this Court has any power to review the evidence at all, in view of the Laws of 1895, Page 197, section 7, 3 Comp. Stat., p. 3993, providing: "That it shall not be necessary to set forth in said conviction [convictions in Police Courts of first-class cities] the whole or any part of the testimony upon which such convictions is had," but, assuming it possesses such power, it cannot extend beyond the point of determining whether there was any evidence before the trial Court to support its finding. See Sec. 39, Laws of 1915, p. 411, Supp. Comp Stat., p. 490; State v. Lynch, 3 N. J. L. Journal 45; Lyons v. Stratford, 43 N. J. L., 376; Orange v. McGonnell, 71 N. J. L. 418. No power to weigh the evidence rests in this Court, and, if it did, I would be unwilling to say, after a reading of the evidence in this case, that the trial Court was wrong in its conclusion of facts; that it should have disregarded the officer's testimony and that of Doctor Mitchell, and believe the story of the defendant and his friend; or even that the Court must have or should have entertained a reasonable doubt of the defendant's guilt on the whole case. The trial Court saw the witnesses, had the benefit of the atmosphere of the trial, witnessed the demeanor of the witnesses on the stand, their manner of testifying, and, consequently, was in a better position to determine questions of fact than this Court is, relying, as it must, upon a paper record. There was ample evidence, if believed, to support the charge. The police officer testified that he saw the defendant driving the car, smelled alcohol on his breath, took him to Doctor Mitchell, the police surgeon, to whom the defendant admitted that he had been drinking, and who found him under the influence of liquor, and on the stand the defendant told of having had two drinks of whiskey. The point stressed--that the police officer's claimed identification of the defendant as the driver on South Orange Avenue is so improbable and impossible as to make his whole story increditable incredible and unbelievable--presents a question of fact and argument peculiarly the province of the trial Court, but, in any event, the fair intendment from his testimony, it seems to me, is that either because of the speed of the auto in question, or because of the auto chasing the car in question, with the occupant waving his hand to the officer, he was attracted to the automobile in question, caught a glimpse of the driver, turned around, followed the car, ordered it to stop, saw the defendant while thus endeavoring to bring the car to a stand-still, and then saw him step out of the car and away from the driver's seat. The next point urged is that the Court erred in sustaining an objection to this question addressed to Officer Moffatt by counsel for the defendant: "How many conferences have you had about this case this morning with Captain McRell, or Doctor Mitchell?" After this question was asked the Court said: "Is that material?" "Mr. Manning: I do not see that this is material. We have a right to prepare our case. I object." The Court: "Objection sustained. I think you [counsel for the defendant] probably talked about your case with your client." No objection was made to the Court's ruling by counsel for the defendant, no exception taken thereto, and no effort made to point out the materiality or relevancy of the question, or that it was but the foundation for some legitimate attack upon the credibility of the witness. In that posture of affairs the overruling of the question was in the discretion of the Court and was harmless. State v. Panelli (N. J.) 79 Atl. 1064. The third and last ground urged for reversal is the action of the Court in permitting Doctor Mitchell to answer the following question over objection of counsel for defendant and exception duly taken: "And, in your opinion, would you say his condition to be such as to prevent his driving a car?" Assuming the action of the Court constituted legal error, it could not prejudice the defendant, for the State was not required to prove that the defendant was so far under the influence of liquor that he could not safely drive a car, but merely to prove that he drove the car while "under the influence of intoxicating liquor." This is clearly pointed out by Justice Trenchard in State v. Rodgers, 102 Atl. 433 (at p. 435), where the Justice says: "It will be noticed that it is not essential to the existence of the statutory offense that the driver of the automobile should be so intoxicated that he cannot safely drive a car. The expression 'under the influence of intoxicating liquor,' covers only all the well known and easily recognized conditions and degrees of intoxication, but any abnormal mental or physical condition which is the result of indulging in any degree in intoxicating liquors, and which tends to deprive him of that clearness of intellect and control of himself which he would otherwise possess." The State, prior to the propounding of the said question, had submitted testimony showing or designed to show that the defendant had driven the car while "under the influence of intoxicating liquor," and Doctor Mitchell had already testified that when he examined him he found him under the influence of intoxicating liquor. No legal error being shown or appearing in the record, the conviction is therefore affirmed. IN RE ESTATE OF ECKERT. (Essex County Orphans' Court, Aug. 16, 1920). _Exceptions to Accounting--Depreciation of Securities--Continuing Investments--New and Unlawful Investments._ In the matter of the Estate of August F. Eckert. On exceptions to account. Messrs. Riker & Riker (Mr. Theodore McC. Marsh and Harvey S. Moore), Proctors for Exceptant. Mr. Edward R. McGlynn, Proctor for the Executor. STICKEL, JR., J.: August F. Eckert, of Orange, New Jersey, died on or about October, 1914, leaving a last will and testament, whereby he bequeathed his property to his wife, Caroline Eckert, and to his children Annie M. Eckert and Clara M. Eckert, to be divided equally between them as soon as the youngest child should arrive at the age of twenty-one years. He appointed William Scheerer, executor. Both of the children were of the age of twenty-one years at the time of testator's death. Scheerer duly qualified as executor, and from 1914 to the present time he has been in charge of the administration of the estate. After being cited to account he filed the account here in issue, and Annie M. Eckert, who has married and is now known as Annie Maxwell, filed numerous exceptions to the account. All of these exceptions were disposed of at the hearing except certain exceptions which fell into two classes, first, those relating to the depreciation on certain issues of bonds, generally described throughout the hearing as Public Service securities, and, second, the exceptions based upon the executor's failure to invest the cash on hand. I will overrule the exceptions falling within the first class, namely, those seeking to surcharge the executor for depreciation of securities invested in by the testator and received by the executor as part of his estate. The securities, the subject matter of the exceptions now under consideration, are investments made by the testator. Consequently, unless it can be shown that in continuing these investments the executor failed to exercise reasonable discretion and that there was an absence of good faith in so continuing them, he cannot be charged with depreciation of such stock. The burden of proving such lack of good faith and failure to exercise reasonable discretion is upon the exceptant. This burden she has failed to sustain. I am convinced that whatever the executor did in the management of this estate was done solely with the best interests of the estate in mind. When the decedent died his widow and two daughters remained together as a family and the executor proceeded to administer the estate possessed of the complete and entire confidence of the beneficiaries of the man who had had sufficient confidence in him to appoint him his sole executor. It was his strict duty, perhaps, to close up the business of decedent, collect the assets, pay the debts and at the end of the year distribute, and had he done so he would early have been relieved of his responsibility. But he wanted to help the family, and so he departed from his strict duty and permitted the business to be continued for a time so that the family might benefit from the receipts thereof. Again, he permitted the informal use and division of some of the debts collected and personal property left. But it is entirely clear to me that this was done by common consent of those concerned, including the exceptant. The three, constituting the family, were treated as an entity, and these and other departures from the strict line of the executor's duty were committed because they were for the common good. In line with this policy of helpfulness on Scheerer's part, and of confidence and reliance upon the part of the devisees, the executor was given charge of the lands and permitted to continue the management of the estate long after it should have been wound up. He became, by tacit consent and common understanding, the trustee of the family. They wanted the benefit of his judgment and experience until the real estate could be sold and the proceeds properly invested. This he gave to them. This continued during 1915, 1916 and 1917. No question seems to have arisen as to the propriety of continuing the investments, nor, indeed, were the executor's acts in any respect challenged during this period. Then the exceptant left the family and became Mrs. Maxwell, and in 1918 demanded an accounting. Up to this point no evidence at all of bad faith or unreasonable exercise of discretion appears. The result of the demand of the exceptant was the agreement by the executor and the exceptant, in the office of John P. Manning, her attorney, upon a settlement which provided for a payment of part of her share in cash and part in investments of decedent continued by the executor. The settlement fell through, not apparently because the securities or settlement were unsatisfactory, but because exceptant disapproved of the word "heirs" in the release requested of her by the executor. At the time, in 1918, the exceptant was willing to take, as her share of the estate, some of the same investments which she now declares the executor was negligent in continuing. Thereafter, and up to the filing of the account, the attorneys of the exceptant and the attorneys of the executor were in frequent negotiation, endeavoring to settle the differences of the parties and agree upon a distribution or division. Certainly, during this period, the executor would not be charged with bad faith or failure to exercise reasonable discretion in keeping the subject matter of the negotiations _in statu quo_, ready for immediate distribution or division in the event of an agreement. Where, then, is the evidence of lack of good faith and failure to exercise reasonable discretion? I can find none. Indeed, when it is realized that two of the beneficiaries are entirely content with the executor's retention of the securities in question; that that which the securities in question represent is as valuable to-day as when the decedent died; that the depreciation is a paper or market one, due to abnormal conditions general throughout the world; that with the return of normal conditions these securities are likely to find their old level, and that the exceptant herself has continued to hold her individual securities, of the same general type as those here in question, it is easy to believe that had the distribution of the estate taken place heretofore, to-day would have seen all parties holding on to their securities, collecting their accustomed income, hoping for the return of the conditions which would mean a rise in the market value of their said securities. The mere fact that the executor did not close up the estate within a year or two after the decedent's death, but continued to manage and administer it, including the real estate, with the consent of beneficiaries, did not increase or change his liability. He was bound to take the same care of the estate as before, no more, no less. Perrine v. Vreeland, 6 Stew. 102. We will now take up the claim that the executor should have invested the cash on hand instead of keeping it in the bank, and that, having failed to do so, he must be charged with the difference between the interest he did get and that which he might have received had he invested it. This exception is also overruled. It is true that, generally speaking, it is the duty of an executor to invest funds in his hands; but the propriety of charging an executor or trustee with interest because he has failed to invest the funds depends upon other facts than the mere possession of the funds, and I know of no case holding that where, pending negotiations for settlement and distribution, an executor left the funds of the estate in saving banks, he must be charged with the interest he might have received had he invested the funds of the estate and perhaps thereby interfered with the immediate liquidation and settlement of the estate. On the contrary the tendency of the decisions is to uphold such conduct. His course prior to the demand in 1918 was acquiesced in by the exceptant; his actions since then were governed, and necessarily, by the continually pending negotiations. In any event the uninvested funds at best scarcely equalled at any time, as far as I can discover, two or three thousand dollars, sums perhaps not always easy to quickly and satisfactorily invest. This leaves for consideration only the act of the executor in investing five thousand dollars of his _cestui que_ money in Public Service funds. These were securities in which a trustee had no right to invest. They are not among those investments which our statute permits trustees to invest in, and, in establishing the investments, the exceptant has made out a _prima facie_ case requiring explanation by the executor. Undoubtedly the executor acted in good faith, but that will not protect him as in the case of continuing investments made by a decedent. His explanation, other than that he acted in good faith, appears to be that the investment was made with the acquiescence of the exceptant; that she is estopped from questioning the investment. I doubt that the exceptant had actual knowledge of the investment when it was made, and the general acquiescence which negatived bad faith in the executor in continuing the decedent's investment would not suffice to protect the executor in making an investment of this kind. Nor do I find that she possessed the knowledge of this transaction that would permit of the application of the doctrine of estoppel. As a consequence, unless there are facts which have escaped or have not been brought to my attention which relieve the executor from the normal effect of an investment of this kind, he must be charged with the depreciation of these bonds, unless the beneficiaries agree to accept the bonds as such. [NOTE BY EDITOR.--The above case, which has attracted much local attention, was in part sustained and in part overruled in the Prerogative Court on Jan. 31, and may go to the Errors and Appeals]. IN RE VREELAND. (Essex Common Pleas, Jan. 19, 1922). _Insolvent Debtor_--A preferential payment of a bona fide debt by an insolvent debtor does not bar his discharge under the Act for the Relief of Persons Imprisoned on Civil Process. In the matter of Frank A. Vreeland. Application for discharge as insolvent debtor. Mr. Richard H. Cashion for Debtor. Mr. Frederick J. Ward for objecting Creditor. FLANNAGAN, J.: On June 29th, 1921, Peter M. Dalton recovered a judgment in tort against Frank A. Vreeland, in the Orange District Court, in the sum of $211.80 and costs; execution was issued and returned unsatisfied. On September 9, 1921, the debtor was taken into custody on a capias ad satisfaciendum and released on bail on the following day. The debtor now applies to this Court for a discharge as an insolvent debtor under the Act for the Relief of Persons Imprisoned on Civil Process, having filed what he claims is "a just and true account of all his real and personal estate," as provided by Section 6 of the Act. It appeared from the testimony of the debtor on the hearing before this Court that, after entry of said judgment and on July 5, 1921, he executed to his sister, Laura A. Vreeland, a chattel mortgage, for the sum of $1,505, being the amount of a pre-existing debt for cash advanced by her to him between August 30, 1920, and the date of the mortgage (to wit, July 5, 1921). The debtor has no property of any substantial value remaining, and, while the value of the property mortgaged is questioned, it represented substantially all his resources and appears to be by no means equal in value to the amount of the loan against it, $1,505. The creditor contends that the debtor, having thus made a preference in favor of his sister since the entry of the judgment, he is not entitled to a discharge. This is the only question which is involved in the present application. The statute provides (Section 8) that the Court shall "consider and examine the truth and fairness of the account and inventory," and (Section 11) that, if the Court is "satisfied that the conduct of the debtor has been fair, upright and just," it may proceed to grant his discharge upon compliance by him with the further provisions as to assignment, etc., set forth in the statute. Under Section 15 of the Act it is provided that if it shall appear that the debtors have "concealed or kept back any part of their estate or property, or made any ... mortgage ... with intent to defraud his creditor ... then ... said debtors shall be refused ... discharge." The provision which requires the debtor's conduct to be "fair, upright and just" is restricted to his conduct in making his account and inventory, and "in delivering up to his creditors all his estate" (Meliski v. Sloan, 47 N. J. L. 83; Reford v. Creamer, 30 N. J. L. 253), and, unless the mortgage to the debtor's sister was with intent to defraud, it would seem he is entitled to his discharge. Of course, if the mortgage is fraudulent, he would not be entitled to it. Iliff v. Banhart, 60 N. J. L. 253; affd. 61 N. J. L. 286. There is no evidence in the case that the consideration paid for the mortgage by the debtor's sister was fictitious, or was not bona fide, or that the mortgage was with any promise or expectation of future benefit to the debtor, or was otherwise improper. On the contrary the testimony is that the mortgage was given for money advanced. The only objection to the discharge which the evidence would justify is that the mortgage was given when the debtor was in failing circumstances while insolvent and after the creditor's judgment had been entered. There is nothing fraudulent or wrong, within the meaning of the Act for the Relief of Persons Imprisoned on Civil Process in the giving of a preference knowingly by a person in an insolvent condition. At common law every man, even when in failing circumstances, has a right to dispose of his property, to pay one honest creditor in preference to another one. Garretson v. Brown, 26 N. J. L. 437; affd. 27 N. J. L. 644; Stillman's Ex. v. Stillman, 21 N. J. Eq. 126. If the debt was honestly due the debtor had a right to select his favorites. There is nothing in the Act to change the common law on this subject and hence the debtor was within his legal rights when he made the preference referred to his sister. For these reasons the debtor is entitled to his discharge. N. Y. AND GREENWOOD LAKE RAILWAY CO., et al. v. ESSEX CO. PARK COMMISSION. (N. J. Supreme Court, Dec. 10, 1921). _Certiorari--Railroad Land Acquired by Park Commission by Condemnation--Disuse of Land by Railroad._ New York and Greenwood Lake Railway Co., a Corporation, and Erie Railroad Co., a Corporation, Prosecutors, against Essex County Park Commission. Application for writ of certiorari before Hon. William S. Gummere, Chief Justice. Messrs. Parker, Emery & Van Riper (by Mr. John M. Emery) for Prosecutors. Mr. Alonzo Church for Respondent. GUMMERE, C. J. (orally): As I understand the situation with relation to the law and the facts, it is this: The Park Commission, having been created by the Legislature for the purposes specified in the Act under which it was organized, conceived the idea of acquiring land to be devoted to the uses of a park up in Verona, and that was done, of course, under a form of resolution, and I assume, unless I am corrected, that the land to be embraced in the park was described, in a general way at least, in the resolution. Having taken that step they started in to acquire the land to be embraced in the proposed park, and in carrying out that purpose they approached this railroad company for the purpose of buying from them, for the purposes of a park, this particular piece of land, but they were unable to make any arrangement with the company with relation to its purchase and sale. I say that from my recollection of the provisions in the petition which was submitted to me, and the accompanying affidavits. The railroad company at that time, and that was prior to the first of November, knew that this Park Commission proposed to acquire a tract of land, of which this particular piece was an integral part, for the purposes of public recreation, not only for the citizens of Verona and neighborhood, not only for the citizens of the county of Essex, but for all the citizens of the State who desired to enjoy that public benefit. Now, the Park Commission either had or had not the right to acquire this land in invitum, that is, against the will of the railroad company and by the exercise of the power of eminent domain given to them by the State itself, and so if they had desired to do so (and when I say "they" I mean the railroad company), they could have ascertained just what the steps were that had been taken by the Park Commission antecedent to the negotiations for the purchase of this land. They would have ascertained that this resolution had been passed and that this particular piece of land was only a part, perhaps a small part of the whole territory which was to be acquired and devoted as a unit to park purposes, but they did not do it. They sat still until they received notice that an application had been made to the presiding Justice here for the appointment of commissioners to condemn that piece of land, and a representative of the railroad company appeared here in response to that notice. Of course, there was nothing that could be done in that particular phase of the matter which would operate as a stay, because the Judge in a matter of that kind sits as a mere legislative agent. But, after the Court had appointed the commissioners, this railroad company, having neglected to act promptly in the way that I have already suggested, by certioraring the resolution, and thereby preventing the expenditure of comparatively large sums, I suppose, of public moneys, still waited; not only waited, without attempting to halt the proceedings, but they actually attended before the condemnation commissioners. Counsel says with a reservation, or with an expostulation, or a protest, or what not, but they appeared there for some purpose, and I suppose to see what the award would be. I don't know whether they offered testimony or not as to the value of the land. That has not been spoken of. MR. CHURCH: They did offer testimony. THE COURT: With the apparent idea, then, that they hold on to their legal rights with one hand, and, if the award justified them in letting go, they would let go of their legal rights and take the money. Now the question is whether in that situation this railroad company is in a position to ask relief from a Judge of the Supreme Court, the relief being in the shape of a writ of certiorari; and whether or not the writ will be awarded is a matter resting in the discretion of the Court. I am not speaking about the question of laches, but, in determining whether this writ ought to issue, I must take into consideration all of the circumstances. It appears that the railroad company, instead of acting promptly, has stood by supinely and seen the county of Essex expend a large amount of money for the purpose of acquiring property, the value of which for public purposes would be greatly depreciated if they were to be prevented from taking this land as a part of the scheme to be carried out. So, I would be inclined to say that, in view of that situation, in the exercise of a proper discretion, I ought to tell the railroad company that I cannot see my way clear to allow this writ; that it would be greatly injurious to the people of Essex county and the people of the State, even, and would produce that injury, although the people and their representative, the Park Commission, are in no way responsible for it. Then there is another reason why I think this writ ought not to be allowed. This railroad company received from the State of New Jersey a grant, by the terms of which it was permitted to acquire lands for the construction and operation of a railroad between given points. That grant was not as a matter of course made to the railroad company for the purpose of benefitting it, but to provide a means of transportation by which the public would be served; and it was an implied part of the contract which was created by the tender of the grant and its acceptance, that this corporation would, within a reasonable time, not only acquire the land but build the railroad and carry the people of this State backward and forward across it for the compensation which the Legislature permitted the railroad company to charge; and for over half a century they have violated the implied condition of their agreement. They have acquired the land. They have not attempted, and so far as I know never will attempt, to devote this land to the purposes for which alone they were entitled to acquire it. They are holding it out of the general property of the State, and by doing so prohibiting its use for the benefit of the State, or any of its citizens, or anybody else. In other words, it is not land that is being held by this company for railroad use. It has never been so used by them, since it was acquired over a half century ago, and, so far as anybody can tell, it is quite uncertain whether it ever will be used for the purposes for which its acquisition was permitted. Now, in that situation, the State comes along and through its agent, the Essex County Park Commission (for that Commission is a State agent) says: 'We need this land for public use. You have had your chance to devote it to that use; you have consistently declined, by inaction at least, to so devote it, and now we are going to devote it to the uses and benefits of the State and of the people of that part of the State located within the borders of the County of Essex,' and I am inclined to think that this was the situation contemplated by the Legislature which induced the reservation in the Act of 1921 that railroad companies should not be permitted to act as dogs in the manger and hold out land which they cannot use themselves, never have used, and perhaps never will use, for the only purpose to which they could devote it under their charter. And so, I think, for this reason also this application should be denied. ABSTRACTS OF RECENT PUBLIC UTILITY DECISIONS. _In re West Shore & Seashore R. R. Co._--Application to discontinue maintaining an agent at Forest Grove, as revenues do not warrant expense of the agency; the place to be put under the supervision of the agent at Minetola, who would keep the station open, lighted, etc. The Board permitted the discontinuance, adding that "if future conditions change to the extent of warranting the re-establishment of an agent, the matter will be given further consideration." Report dated Nov. 4, 1921. Mr. George A. Bourgeois for the Company. Mr. Joseph Little and Mr. Charles H. Lincoln for Protestants. Another application was made at the same time by the same Company for the discontinuance of the agent at Buena. The Board said: "While the reasonableness of the Company's desire to reduce operating expenses is recognized, the discontinuance of the agent would undoubtedly result in inconveniencing shippers and receivers of freight and express to an extent that would not be justified considering the volume of business. The necessity for the presence of an agent or clerk for a portion of the day is manifest, and arrangement should be made to have a representativeat the station from 8 A. M. until 1.30 P. M. daily, excepting Sundays: also that the station be kept open during the hours it is at present open for the convenience of passengers. If the Company will arrange to have a representative at the station for the transaction of necessary business from 8 A. M. until 1.30 P. M., and keep the station open covering hours now in effect, the Board will approve such an arrangement in lieu of agency now effective." Report dated Nov. 4, 1921. Mr. George A. Bourgeois for the Company. Mr. Charles Wray for Protestants. _In re Pennsylvania R. R._--Application to discontinue an agent at Allaire. Permit granted. Report dated Nov. 4, 1921. Mr. W. Holt Apgar for Petitioner. _In re City of Newark._--Application for a change in the colorific standard of gas. The Board was about to investigate the rates charged for gas by the Public Service Gas Co., when the City of Newark gave notice of a demand for an increase in the standard. "There was thus," said the Board, "injected into the proceeding a question which had to be decided before the Board's investigation into the rates could proceed, it being impossible to fix a price for gas until the Board should fix the standard for gas under Newark's petition. The rule fixing the standard for gas being applicable to all gas companies in the State, general notice of hearing was given, and the gas companies were represented." Testimony was begun in August last, and the general purport appears in the Report. The Board said: "It does not appear that the gas supplied by the Public Service Gas Company compares favorably with that furnished by other companies, which, confronted by the rule [IX of the standard adopted by the former Utility Board] alone, have applied it in accordance with its apparent literal significance. The rule, however, should be free from any misunderstanding as to its meaning. As the Public Service Gas Company supplies the greater part of the gas consumed in the State, and to now require it to change its interpretation of the rule might result in undesirable complications in the rate proceeding being conducted by the Board without corresponding advantage to its customers, it is deemed inadvisable to insist upon such change. In order, however, that there may not be a continued apparent conflict between the rule as worded and the practice of the Company, the Board will change the wording of the rule so that there will be no doubt if gas is supplied with a minimum daily average of 525 B. t. u. it will be in compliance therewith." Report dated Nov. 4, 1921. Messrs. E. W. Wakelee, E. A. Armstrong and G. H. Blake for Public Service Gas Company. Mr. Jerome T. Congleton and Mr. J. G. Wolber for the City of Newark. Mr. George L. Record for City of Jersey City. Mr. Benjamin Natal for City of Camden. Mr. William A. Kavanagh for City of Hoboken. Mr. Joseph T. Hague for City of Elizabeth. Mr. A. O. Miller for City of Passaic. Mr. William P. Hurley for Town of Nutley. Mr. Welcome W. Bender for Chamber of Commerce of Elizabeth. Mr. F. R. Cutcheon for Consolidated Gas Company. Mr. S. J. Franklin for Cumberland County Gas Company. Mr. H. S. Schutt for Atlantic City Gas Company. Mr. William Wherry, Jr. for New Jersey Gas Association. Dr. W. G. Hanrahan for Rent Payers' Association of Essex County and Federation Improvement Associations. Mr. James W. Howard on his own behalf. _In re Blackwood Water Co._--Application for increase in rates. The Board required, first, that changes must be made in the system so as to provide for continuous operation of the filter plant, additional power to operate the pumping machinery, etc., six different improvements in all. Doing this the Company could make certain increases in rates beginning Jan. 1, 1922. Report dated Nov. 9, 1921. Mr. Lewis Starr for Petitioner. Mr. Samuel P. Hagerman for Township of Gloucester. SOME INTERESTING OUT-OF-STATE DECISIONS. STATE PROHIBITION LAWS AND EIGHTEENTH AMENDMENT. In the habeas corpus proceeding of Jones v. Hicks, decided by the Georgia Supreme Court and reported in 104 Southeastern Reporter, 771, portions of the statement of facts and opinion of the Court by Judge Gilbert are as follows: "Jones was arrested under a bench warrant issued by the Judge of the city court of Macon, based upon an accusation charging him with violating the prohibition law of this State on January 21, 1920. He filed a petition for the writ of habeas corpus, based upon the ground that the Eighteenth Amendment to the Constitution of the United States, which was ratified on January 16, 1920, and the 'National Prohibition Act' known as the Volstead Act (41 Stat. 305), superseded and abrogated all State laws on the subject covered by said Eighteenth Amendment, and that therefore, at the time this defendant is alleged to have committed the criminal offense charged in the accusation, there was no valid State law in existence. The court refused to release the petitioner, and that judgment is excepted to.... "The second section of the amendment as proposed to the States and ratified, provides that 'The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.' "Three views as to the proper construction of the second section have been generally discussed: (1) That concurrent power means joint power; (2) That the power is given to each, the legislation of either Congress or the States being of equal force with the other; and (3) that the power is in each, but that the legislation of Congress, as the supreme law of the land, will supersede any inconsistent State legislation.... "The Supreme Court of the United States having adversely disposed of the contention that 'concurrent power' means joint power [State of Rhode Island v. Palmer, 40 Sup. Ct. 486], there remain two other views to be considered. Similar, but not identical, questions have been discussed heretofore by Courts of several States and by the Supreme Court of the United States. None of these involved construction of delegated powers to be exercised concurrently. They are cited here for comparison, and not as controlling.... "The sphere in which the Congress, under the Eighteenth Amendment, may legislate for the enforcement of prohibition, is limited to the precise terms stated in the amendment, to wit, 'concurrent enforcement....' From a consideration of the question as above presented, we reject the view that the legislation of Congress will supersede and abrogate the laws of the State which are appropriate for the enforcement of the amendment. We conclude that the power of Congress and of the State is equal and may be exercised by the several States for the purpose of enforcement concurrently within their legitimate constitutional spheres. Ex parte Guerra (Vt.) 110 Atl. 224, and authorities cited. The first section of the amendment is in no way affected or qualified by the words 'concurrent power,' found in the second section." KILLING COWS BY AUTOMOBILE. An automobilist, driving his car at an excessive rate of speed along an improved country road in the night-time, struck and killed two cows being driven along the highway. The animals were walking, one behind the other, in or near the wheel track on the side of the road on which they belonged. The machine, after striking the leading animal, skidded and struck the other cow, killing her instantly and casting her dead body, a distance of 57 feet. The driver admitted he was going "about" 25 miles an hour; and the Court comments: "The result of the catastrophe indicate rather strongly that he underestimated his speed." The Vermont case of Bombard v. Newton, 111 Atl. 510, is based on this occurrence, and was instituted by the owner of the animals to recover damages for their negligent killing. The Court held that the right to drive an automobile along a public highway is not superior to that to drive cows along the highway. "The parties," states the opinion, "had equal and reciprocal rights to the use of the road, and each owed the other the duty of so exercising his own right as not to interfere with that of another. The fact that it was in the night-time affected the rights of the parties only as it bore upon the amount of vigilance each was bound to exercise. The fact that the defendant was operating an automobile, an instrumentality whose capacity for harm is well exemplified by the results in this case, and the fact that the plaintiff was driving cows, animals whose viatic vagaries have come to be known of all automobile drivers, were conditions affecting merely the degree of care required of the parties respectively." MISCELLANY PUBLIC SERVICE LOSES JITNEY SUIT On Dec. 2 the Court of Errors and Appeals, by a tie vote, 7 to 7, practically affirmed the decision of Vice-Chancellor Griffin in denying an injunction to the Public Service Railway Co. to prevent operation of jitneys on the public highways. The affirmative votes were by Justices Black, Kalisch, Parker, Swayze and Trenchard, and Judges White and Van Buskirk; the negative by Chief Justice Gummere, Justices Bergen, Katzenbach and Minturn, and Judges Williams, Gardner and Heppenheimer. Justice Minturn wrote an opinion for the negative view. The essential points relied upon by counsel for the railway company in support of the application for an injunction against the jitney owners were that none of the defendants had applied for and obtained consent for the use of the streets and highways on which they operated, as required by the Limited Franchise Act of 1906; that none of the defendants filed with the chief fiscal officer of the city in which they operate a policy of insurance, as required by the Kates Jitney Act of 1916; that Barnett, though filing a policy of insurance in Newark, filed only a copy of the policy in Elizabeth; that Banker filed a policy in New Brunswick, but none in South Amboy; that the Public Service Railway in the enjoyment of a legal franchise is entitled to an injunction against the alleged illegal competition on the part of jitneys, and that the Public Service is entitled to protection of its franchises and business by injunction under decisions of the New Jersey court. Merritt Lane, counsel for the jitney owners, questioned the jurisdiction of the Court of Chancery to grant the injunction, contending that the rights of the Public Service are not of such a nature as to justify it in seeking relief in any Court, and argued that the franchise of the company was not to transport passengers for hire and reward but to lay and maintain rails in public streets and to operate cars thereon. Mr. Lane also submitted that to grant the injunction would create a result manifestly opposed to public policy and would result to the disadvantage of the public. He submitted that the Company was not in a position adequately to handle the traffic and that if the jitney were eliminated hundreds of thousands of persons would be obliged to walk or stand while riding. HUNTING BY FOREIGNERS. The County Clerk of Sussex, Mr. Harvey S. Hopkins, has appropriately called the attention of municipal clerks in that county to their neglect of duty under the hunting and fishing license law. Doubtless the same neglect has resulted in other counties. In sending out the supply of 1922 licenses Mr. Hopkins wrote: "In every monthly report compiled by this office I can see instances where resident hunting licenses have been improperly issued to foreigners who have not yet acquired their final naturalization papers. This is both unjust and unlawful and sooner or later some issuing clerk will encounter serious trouble through his laxity in this matter. Unless you have personal knowledge respecting the applicant, there is but one safe procedure: Compel him to produce his certificate of final naturalization. His first papers, or declaration of intention are not sufficient." Mr. Hopkins also called the attention of the municipal clerks to the change in the fish and game laws which no longer exempt women from the necessity for procuring a license. Formerly women were not required to have licenses to fish, although they had to get them to hunt. Now they have to have licenses for both, as per Chapter 112, Laws of 1921. HONOR TO MR. GASKILL. Mr. Nelson B. Gaskill, formerly Assistant Attorney-General of New Jersey, and now a member of the Federal Trade Commission, has been elected chairman of that body. He is the second Jerseyman to enjoy that honor, the late J. Franklin Fort, former Governor, having been chairman several years ago. Mr. Gaskill is a son of former Judge Joseph H. Gaskill of Burlington County, was for many years connected with the New Jersey National Guard and during the late War held the rank of Lieutenant-Colonel in the Judge Advocate-General's Department. He was appointed to the Federal Trade Commission by the then President Wilson. JERSEY LAW SCHOOL ALUMNI. The New Jersey Law School Alumni Association has completed its organization. The officers elected are: Judge Clyde D. Souter, President; John A. Ammerman, first Vice President; Miss Irene Rutherford O'Crowley, Second Vice President; John A. Matthews, Third Vice President; Miss Helen Oppenheimer, Secretary; Raymond Foster Davis, Treasurer. At the dinner in the Berwick Hotel, Newark, more than 100 lawyers in this State, all graduated from the school, attended. Richard D. Currier, President of the law school, told the guests of the advantages gained by promoting good fellowship in the form of an alumni association. HUMOR OF THE LAW. A certain lawyer was asked by an acquaintance how it was that lawyers contrived to remain on such friendly terms with each other, although they were famed for their cutting remarks. The lawyer looked at him with a twinkle in his eye, and remarked: "Yes, but they're like scissors; they only cut what comes between."--_Japan Advertiser._ * * * * * His Honor: "Get the prisoner's name, so we can tell his mother." Rookie: "He sez his mither knows his name."--_Vaudeville News._ * * * * * "Prisoner at the bar," said the judge, "will you have trial by judge or jury?" "By jury, your honor," said the defendant. "I'll take no chance on you!" "What!" roared the court. "Do you mean to say that I would--" "I don't mean t' say nothing," said the prisoner, stoutly, "but I ain't taking no chances. I done some plumbin' work for you last winter!"--_Richmond Times-Dispatch._ * * * * * There recently died in Illinois an aged farmer, reputed to be wealthy. After his death, however, it was discovered he left nothing. And his will ran like this: "In the name of God, amen. There's only one thing I have. I leave the earth. My relatives have always wanted it. Now they can have it." * * * * * Mr. Hardfax: "So your son left us to go into a bank in the city? How did he acquit himself?" Mr. Timbertop: "He didn't acquit himself. It took the best lawyer in the county to get him acquitted."--_Boston Globe._ THE LEGISLATURE. The 146th session of the New Jersey Legislature opened at Trenton on January 10. The Senate consisted of 16 Republicans and 5 Democrats; the Assembly of 45 Republicans and 15 Democrats. There are two women in the Legislature, Mrs. Catherine Brown, Democrat, of Hudson county, and Mrs. Margaret B. Laird, Republican, who was reëlected from Essex county. Senator William B. Mackay, of Bergen county was elected President of the Senate; and Assemblyman T. Harry Rowland, of Camden, Speaker of the House of Assembly. GOVERNOR'S APPOINTMENTS. Among the recent appointments by Governor Edwards the following will prove of special interest to the Bar: Justice James F. Minturn, of Hoboken, of the Supreme Court, reappointed. Justice Charles C. Black, of Jersey City, of the Supreme Court, reappointed. Judge Walter P. Gardner, Jr., of Jersey City, member of the Court of Errors and Appeals. Mr. Samuel M. Shay, of Merchantville, Common Pleas Judge of Camden county in place of Judge John B. Kates. Judge William H. Speer, of Jersey City, Circuit Court Judge, reappointed. Mr. Willis T. Porch, of Pitman, Prosecutor of the Pleas of Gloucester county, to succeed Oscar B. Bedrow. Mr. John O. Bigelow, of Newark, for Prosecutor of the Pleas. Mr. John Enright, of Freehold, for Commissioner of Education. SOME STATE NOTES. On Jan. 5 former Judge Maja Leon Berry, solicitor of the Ocean County Board of Freeholders, entertained that body, the county officials and newspaper men at a dinner at the Ocean House. The occasion was the host's forty-fifth birthday and he has followed this custom of entertaining the officials for the past twelve years. Mr. James R. Nugent, of Newark, was nominated on January 16 by the Governor for Prosecutor of the Pleas of Essex county, but, a week later, was refused confirmation by the Senate, by a vote of 17 to 3. Mr. William E. Holmwood, of Newark, has removed his law office to 43 Washington street. Mr. J. Victor D'Aloia, of Newark, has gone to Europe for a stay of about two months, so as to visit his parents in Italy. A testimonial dinner was given to Judge Rulif V. Lawrence, of Freehold, at the Hotel Belmont at that place, on January 2, and he was presented with the gift of a gold watch. The Monmouth Co. Bar Association held its annual meeting at Freehold on January 3 and reëlected its President, Halstead H. Wainwright, of Manasquan. The Union Co. Bar Association held its annual meeting at Elizabeth on January 3 and elected as its President Mr. Clark McK. Whittemore. It decided to ask the Legislature to increase the jurisdiction of the District Courts. State Senator Thomas Brown, of Perth Amboy, was appointed counsel for the Public Utilities Commission on January 3, to succeed Mr. L. Edward Herrmann, although the latter is still retained by the Commission as special counsel in the prosecution of the Public Service rate case before the United States Supreme Court. Senator Brown has practiced law at Perth Amboy since 1907. OBITUARIES. MR. GEORGE W. JENKINS. Mr. George Walker Jenkins, one of the best known lawyers of Morristown in former years, afterward as active in corporation matters in New York City, died in Memorial Hospital, New York City, on January 19, 1922. He had been out of health for some months, but went to the Hospital only a few days before his death. Mr. Jenkins was born November 7, 1848, at Catasauqua, Pa., his parents being George and Hannah (Morgan) Jenkins, who were Welsh people and born in Wales. After the usual early education he entered Yale College, from which he was graduated in 1870. He studied law with Messrs. Parker & Keasbey, in Newark, and was admitted to the New Jersey Bar at the November Term, 1873, and became counselor at the February Term, 1880. He began practice at Boonton, but later went to Morristown, where he soon became one of the most active lawyers of the place. He had ability, assiduity and exactness in office matters, being so exact in fact that he became one of the most popular Special Masters of the Court of Chancery to whom other members of the Bar referred their cases whenever practicable. Taking early to politics he was soon prominent in the Republican party, and was elected and served as a Member of the Assembly during the years 1883, 1884 and 1885. He was also counsel to the Board of Chosen Freeholders, and at one time served as Journal Clerk of the New Jersey Senate. In 1886 he ran for State Senator for Morris county, but was defeated by George T. Werts, who afterward became Governor. About twenty-five years ago Mr. Jenkins, while not removing from Morristown, went to New York City, and was engaged from then until recently, when his health became impaired, in carrying on legal business connected with various extensive corporation enterprises. He was Vice-President and director of the Bridgeport (Conn.) Gun Implement Co. and Remington Arms Co., director of the M. Hartley Co., Treasurer and director of the Union Metallic Cartridge Co., Trustee of the Washington Trust Co., etc., in all of which his legal knowledge was used with skill and real ability. He owned a large and handsome residence in Morristown, and also the Silver Lake Farms at Green Village. He was a member of the Morristown Club, Morris County Golf Club and the University, Yale and Union League Clubs of New York City. Mr. Jenkins married Miss Helen Hartley, daughter of Marcellus Hartley, of New York City, who, with one daughter and two grandchildren, survive him. His eldest daughter, Mrs. Frances Greer, of New York City, died about two years since; the surviving daughter is Mrs. Winter Mead, of Sand Beach, Conn. He is also survived by a sister, Mrs. A. L. Dennis, of Plainfield, and by nieces. The interment was at Boonton. MR. JAMES A. GORDON. Mr. James A. Gordon, an active practicing lawyer at Jersey City, died suddenly at his home, 638 Pavonia avenue, on January 11. Complaining that he felt ill, Mr. Gordon left his office the day previous, but his illness gave no indication that death was near. Mr. Gordon was the son of John A. and Isabella (Leslie) Gordon, and was born in the city of Bergen (now Jersey City), October 7, 1860. He was graduated from the Jersey City High School in 1881; read law with Mr. John Linn and Linn & Babbitt, and was admitted as a New Jersey attorney at the June Term, 1885, and as counselor at the June Term, 1888. He soon became one of the ablest of the younger members of the Hudson Bar. His office was at 586 Newark avenue, Jersey City, at the time of his death. He was unmarried and made his home with a sister, Miss Isabelle Leslie Gordon, who, with a brother, William Stewart Gordon, survives him. He belonged to the Bergen Lodge, F. and A. M., and the Hudson Bar Association. MR. ROBERT I. HOPPER. Mr. Robert Imlay Hopper, of Paterson, long a prominent attorney of that city, died on January 24th after a few days illness from a general breakdown. Mr. Hopper was the son of the late Judge John Hopper and Mary A. (Imlay) Hopper, of Paterson, and was born in that city May 28, 1845. After a public school education he entered Rutgers College, being graduated there in 1866. He studied law with his father and became a New Jersey attorney at the June Term, 1869, and a counselor three years later. For many years father and son were associated in practice in Paterson, being severed only because the father was elevated to the Bench. In 1878 he was chosen counsel to the Passaic Board of Chosen Freeholders and served as such for ten years. He was also secretary to the Paterson & Hudson River Railroad (now part of the Erie R. R.), holding that office at the time of his death. He was active in the National Guard of New Jersey, having been Major and Judge Advocate, and was prominent in Masonic circles and in various clubs. His wife, who was Miss Ida E. Hughes, died April 24, 1878. One daughter, Ida, survives. VAN NESS ACT OVERTHROWN. On February 2 the Court of Errors and Appeals of this State declared the Van Ness Prohibition Enforcement Act unconstitutional. This decision reverses the Supreme Court in the three test cases involving the constitutionality of the Enforcement Act and sets aside the opinion written in the lower Court by Mr. Justice Minturn, presumably concurred in by Justices Trenchard and Bergen, who heard the argument below. Had they sat in the full Court there would have been so close a division that the Court would have stood, as we see it, almost even. The news comes to us just as we are going to press, so that the text of the decisions and dissents is not available. The newspapers state, however, that four opinions were filed and that results on single propositions tended to sustain the constitutionality of procedures while as a whole the Act was overthrown. Says one newspaper: "On the question of a jury trial, the Justices found that the denial of it was proper, six votes to five. That the Act was not unconstitutional in describing as a misdemeanor what the Federal Volstead Act describes as a crime, the Court agrees six to six, which upholds the Act. On the two questions of whether the Act was properly described in its title, and whether the functions put upon the magistrates by it could properly be exercised, the Court upholds it nine to two. In other words, each one of these features is in itself constitutional. But there are eight Justices who disagree with it on one point or another and only four who found nothing to disagree with. Therefore, we have the curious phenomenon of a piece of legislation constitutional in each separate part, but under which, as it stands, it is impossible to secure a conviction that will be affirmed. In other words, the Act will not stand as it is." Chancellor Walker devoted the main part of his opinion to consideration of the constitutional question involving the right of indictment and trial by jury, in which he held that the Act was defective. Among other things he said: "It is almost superfluous to say that the proceedings under view are void because there has been no indictment, as that is a mere corollary to the proposition that they are void because the defendant was denied the right of trial by jury. No one can be put upon trial before a traverse jury in New Jersey for a commission of a crime unless upon the presentment of indictment of a grand jury, except in cases of impeachment or in cases cognizable by justices of the peace (or certain military or naval cases)." Chief Justice Gummere's opinion was concurred in by Justice Swayze and Judges Gardner, Ackerson and Van Buskirk. It approached the subject from a different angle than the chancellor, reaching the conclusion that, with the passage of the Eighteenth Amendment, the State had to surrender part of its police power to the Federal Government, and therefore was bound to legislate in conformity with the Volstead Act, which, passed under authority of the Federal Constitution, becomes the supreme law of the land. Justice Kalisch held that the supreme law of the land, embodied in the Volstead Act, having made certain offenses a crime, it was not within the power of the State to classify them as petty offenders. Consideration was given by Judge White to the questions relative to the right of trial by jury and the alleged erroneous interpretation on the question of concurrent power. As to the first objection, that relating to the right of trial by jury, Judge White said he thought the real underlying historically established test depends upon the character of the offense involved rather than upon the penalty imposed. "The offense must be a petty and trivial violation of regulations established under the police power of the State in order that the offender may be summarily tried, convicted and punished without indictment by a grand jury and without trial by a petit jury." It must, of course, Judge White said, be assumed that the punishment for a petty and trivial offense will also be comparatively petty and trivial, otherwise it would violate another provision of the State Constitution which prohibits cruel and unusual punishment. Transcriber Notes: Passages in italics were indicated by _underscores_. Small caps were replaced with ALL CAPS. Errors in punctuations and inconsistent hyphenation were not corrected unless otherwise noted. On page 38, a single quote was added after "and no longer" On page 48, "increditable" was replaced with "incredible". On page 48, "canot" was replaced with "cannot". On page 52, "execuetd" was replaced with "executed". On page 58, "nighttime" was replaced with "night-time". On page 60, a dash was added before "Japan Advertiser". On page 64, "qustions" was replaced with "questions". 
35760	----	produced from images generously made available by The Internet Archive.) Marriage and Divorce Laws of the World Edited by HYACINTHE RINGROSE, D. C. L. Author of "The Inns of Court" "Marriage is the mother of the world, and preserves kingdoms, and fills cities, and churches, and heaven itself."--Jeremy Taylor THE MUSSON-DRAPER COMPANY LONDON NEW YORK PARIS 1911 Copyright, 1911, by HYACINTHE RINGROSE All rights reserved PREFACE The purpose of this volume is to furnish to the lawyer, legislator, sociologist and student a working summary of the marriage and divorce laws of the principal countries of the world. There are no geographical boundaries to virtue, wisdom and justice, and no country has as yet monopolized all that is best in creation. The mightiest of the nations lacks something which is possessed by the weakest; and there is no branch of comparative jurisprudence of more general consequence than that treating of marriage, which is the keystone of civilization. By "civilization" we do not mean community life according to the standard of a single individual or nation, but in its broader and better sense, meaning the civil organization of any large group of human beings. This book is not a brief in favour of, or against, any particular social system or legal code, nor has it a mission to assist in the reformation of any country's marriage and divorce law. In the compilation which follows our endeavour is simply to set forth positive law as it exists to-day, leaving its correction or development to the proper authorities. The editor has lived among the books of the British Museum, the Bibliothèque Nationale and other great libraries for years, seeking in vain for just such a compilation as is here humbly presented. We hope, therefore, that whatever may be its imperfections the book is justified, and will be welcomed as the first of its kind. In its compilation we have been pleased to observe that the evident trend of modern legislation is toward uniformity among the nations of Christendom on the vital subjects of marriage and divorce. In fact, modernity brings uniformity in every department of public and private law--a consummation devoutly to be wished for by those who feel that, no matter how short may be the individual's life, he is nevertheless a kinsman to all of the race who have gone before or are yet to come. A study of the marriage laws of the world has also brought the happy conviction that the wholesome view of marriage as the union of one man and one woman for life, to the exclusion of all others, is the one triumphant fact of human history which can never lose its prestige. The surest sign of the general betterment of the world's law is that woman everywhere is more and more being allowed her natural place in the community as man's equal and associate. That nation is most enlightened which treats its womankind the best. All the legislation of the past century bearing on the subject of marriage has elevated men by giving more justice to women. When the next Matrimonial Causes Act predicated upon the labours of the present Royal Commission on Marriage and Divorce is passed by the British Parliament, women will be given equal rights with men in our courts of law. The jurisprudence of England was not built for a day, and we are a people singularly bound by precedent, but when John Bull moves it is always in a straight line, and he never turns back. H. R. CONTENTS CHAPTER PAGE I. INTRODUCTION 7 II. ENGLAND 16 III. SCOTLAND 32 IV. IRELAND 36 V. THE FRENCH LAW 38 VI. THE LAW OF ITALY 46 VII. BELGIUM 53 VIII. SWITZERLAND 57 IX. GERMANY 60 X. AUSTRIA 67 XI. HUNGARY 72 XII. SWEDEN 76 XIII. DENMARK 81 XIV. NORWAY 85 XV. RUSSIAN EMPIRE 89 XVI. HOLLAND 100 XVII. THE JAPANESE LAW 104 XVIII. SPAIN 110 XIX. LAW OF PORTUGAL 117 XX. ROUMANIA 121 XXI. SERVIA 125 XXII. BULGARIA 129 XXIII. KINGDOM OF GREECE 132 XXIV. THE MOHAMMEDAN LAW 137 XXV. UNITED STATES OF AMERICA 148 XXVI. DOMINION OF CANADA 199 XXVII. REPUBLIC OF MEXICO 209 XXVIII. ARGENTINE REPUBLIC 218 XXIX. UNITED STATES OF BRAZIL 223 XXX. REPUBLIC OF CUBA 227 XXXI. COMMONWEALTH OF AUSTRALIA 238 XXXII. DOMINION OF NEW ZEALAND 250 XXXIII. THE HINDU LAW 256 XXXIV. THE CHINESE EMPIRE 265 Marriage and Divorce Laws of the World CHAPTER I. INTRODUCTION. Marriage is the oldest and most universal of all human institutions. According to the Chinese Annals in the beginning of society men differed in nothing from other animals in their way of life. They wandered up and down the forests and plains free from the restraint of community laws or morality, and holding their women in common. Children generally knew their mothers, but rarely their fathers. We are told that the Emperor Fou-hi changed all this by inventing marriage. The Egyptians credit Menes with the same invention, while the Greeks give the honour to Kekrops. In the Sanscrit literature we find no definite account of the institution of marriage, but the Indian poem, "Mahabharata," relates that until the Prince Swetapetu issued an edict requiring fidelity between husband and wife the Indian women roved about at their pleasure, and if in their youthful innocence they went astray from their husbands they were not considered as guilty of any wrong. The Bible story of the institution of marriage is contained in the Second Chapter of Genesis, 18th to the 25th verse. It is not within the purpose of this treatise to argue for or against the acceptance of the Bible narrative, so we call attention without comment to the extreme simplicity of the wedding ritual as stated in the 22d verse: "And the rib, which the Lord God had taken from man, made he a woman, _and he brought her unto the man_." Among primitive men marriage was concluded without civil or religious ceremony. Even in modern Japan a wedding ritual is considered all but superfluous. The principal marriage ceremonies have been derived from heathen customs; they were: the _arrhae_, or espousal gifts, an earnest or pledge that marriage would be concluded; and the ring betokening fidelity. Among the ancient Hebrews marriage was not a religious ordinance or contract, and neither in the Old Testament nor in the Talmud is it treated as such. As with the Mohammedans it was simply a civil contract. Under the old Roman law there were three modes of marriage: 1. _Confarreatio_, which consisted of a religious ceremony before ten witnesses, in which an ox was sacrificed and a wheaten cake was broken by a priest and divided between the parties. 2. _Coemptio in manum_, which was a conveyance or fictitious sale of the woman to the man. 3. _Usus_, the acquisition of a wife by prescription through her cohabitation with the husband for one year without being absent from his house three consecutive nights. But a true Roman marriage could be concluded simply by the interchange of consent. There was an easy morality of the olden times which according to present standards was akin to savagery. The Greeks even in the golden age of Pericles held the marriage relation in very little sanctity. It was reputable for men to loan their wives to their friends, and divorce was easy and frequent. Hellenic literature attempted to make poetry of vice and marital infidelity, and adultery was the chief pastime of the gods and goddesses. The Romans had more of the moral and religious in their character than the Greeks, but still we read of Cato the younger loaning his wife Marcia to Hortensius and taking her back after the orator's death. In the Second Chapter of the Gospel according to St. John we find that Jesus was a guest at a marriage in Cana of Galilee. His attendance at the wedding feast is not notable for His having on this occasion given the marriage contract the character of a sacrament, for nothing in the record even hints at this. The account is principally noteworthy as the history of His first miracle, that of turning water into wine. It was from the Fifth Chapter of the Epistle of St. Paul to the Ephesians that the dogma that marriage is a sacrament was gradually evolved. In this chapter the Apostle points out the particular duties of the marriage status, and exhorts wives to obey their husbands, and husbands to love their wives. "For this cause shall a man leave his father and mother, and shall be joined unto his wife, and they two shall be one flesh." However, the early Christian Church did not treat marriage as a sacrament, although its celebration was usually the occasion of prayers and exhortations. It was not until the year 1563, by an edict of the Council of Trent, that the oldest branch of the Christian Church, namely, that governed by the See of Rome, required the celebration of marriage to be an essentially religious ceremony. The general marriage law of the European continent has been derived and developed from the edicts of the Roman emperors and the decrees of the Christian Church. This historical evolution is strikingly apparent when we read the definition of marriage as given in the Institutes of Justinian: _Nuptiae autem, sive matrimonium est veri et mulieris conjunctio, individuam vitae consuetudinem continens_. Marriage is the union of a man and a woman, including an inseparable association of their lives. There are as many definitions of marriage as there are views concerning it, but none of them improve very much upon that given in the Institutes. It is also worth noting that the impediments to lawful marriage were very nearly the same under the Roman Empire as they are to-day in most civilized countries. The 18th Chapter of the Book of Leviticus appears to have set the standard. There are three principal forms of marriage, namely, monogamy, polygamy and polyandry. Monogamy, or the condition of one man being married to but one woman at a time, appears to be not only the best but the most ancient and universal type. It was, according to the Bible, good enough for the first husband, Adam, for his only wife was Eve. The first polygamist on the same authority was Lamech, who was of the sixth generation after Adam, for he "took unto him two wives." Reading in the First Book of Kings, we are informed that King Solomon had "seven hundred wives, princesses, and three hundred concubines." A round thousand. However, polygamy, or the marriage of a man to more than one wife at the same time, was not the rule even among the ancient Hebrews. Such a trial was left to kings and other luxurious persons. Polyandry is the condition of a woman having more than one husband at the same time. It evidently had its origin in infertile regions in the endeavour to limit the population to the resources of the district. It is almost a thing of the past, but it is still practised in Thibet, Ceylon and some parts of India. MORGANATIC MARRIAGE.--A morganatic marriage is a marriage between a member of a reigning or nominally reigning family and one who is not of either of such families. It is a term usually employed with reference to a matrimonial alliance between a man of royal blood (or in Germany of high nobility) and a woman of inferior rank. Such alliances are sometimes called "left-handed marriages," because in the wedding ceremony the left hand is given instead of the right. In Germany a woman of high rank may make a morganatic alliance with a man of inferior position. The children of a morganatic marriage are legitimate, but neither they nor the wife can inherit the rank or estate of the morganatic husband. By the Royal Marriage Act of England such an alliance has no matrimonial effect whatever. DIVORCE.--Divorce is almost as ancient as marriage, and just as fully sanctioned by history, necessity and authority. In the 24th Chapter of Deuteronomy we read: "When a man hath taken a wife, and married her, and it come to pass that she find no favour in his eyes, because he hath found some uncleanness in her, then let him write her a bill of divorcement, and give it in her hand, and send her out of his house. And when she is departed out of his house, she may go and be another man's wife." This rule was consistent with the patriarchal system of the Jewish commonwealth. The husband as the head of the family could divorce his wife at his pleasure. An illustration of such a divorce is furnished by Abraham's dismissal or divorcement of Hagar. This was surely a simple divorce law with a summary procedure, much cheaper, quicker and easier than is given by the statutes of several American States. No solicitor, barrister or court was required. The husband constituted himself president of the Court of Probate, Admiralty and Divorce for the special occasion and granted himself a favourable decree. The law of divorce as stated in Deuteronomy continued to be accepted by the Hebrews until the 11th century. It was in full force when Christ was on earth, for it is recorded in the 19th Chapter of the Gospel of St. Matthew that He was questioned concerning it. Jesus had given to the Pharisees His views of marriage in answer to their question: "Is it lawful for a man to put away his wife for _every_ reason?" He then stated the proposition that because of marriage a man shall leave father and mother, and shall cleave to his wife, and added: "What, therefore, God bath joined together let not man put asunder." Then was put to Him the question concerning the existing law: "Why did Moses then command to give a writing of divorcement, and to put her away?" His answer was that "Moses, because of the hardness of your hearts, suffered you to put away your wives: but from the beginning it was not so." Jesus although disapproving of the breadth of the Mosaic law did not declare against divorce; quite the contrary, for He said: "Whosoever shall put away his wife, _except it be for fornication_, and shall marry another, committeth adultery: and whoso marrieth her which is put away doth commit adultery." Unless we assume that Jesus was concealing rather than expounding His views, the plain meaning is that He considered fornication to be the sufficient and only cause for an absolute divorce. Josephus interpreted the Jewish divorce law as follows: "He who wishes to be separated from his wife for any reason whatever--and many such are occurring among men--must affirm in writing his intention of no longer cohabiting with her." The ancient Jewish law made of woman a chattel and a marriage derelict at her husband's pleasure, but it gave the woman no right to divorce her husband for any cause. The poet, John Milton, in the least worthy of his writings, relied upon the Mosaic law in his specious argument in favour of unlimited divorce. St. Augustine contended that the question of divorce is not clearly determined by the words of Jesus, but there can be no mistake concerning the theological attitude of the Roman Catholic Church of to-day on this subject. It positively holds that no human power can dissolve a marriage when ratified and consummated between baptized persons. If one is prepared to concede the principal dogma of Roman Catholicism, namely, the infallibility of the Church, there is no lack of logic or authority in such an attitude, even though it differs or varies from the Mosaic law or the sayings of Jesus. We must remember, however, that modern divorce law is not founded on theological dogmas or theories, but upon practical social science and humanity. In most countries there is no distinction between the husband and the wife as to grounds of divorce. The Mohammedan law of Egypt and the statute laws of Belgium and England being conspicuous exceptions to the rule. Usually the domicile of the husband is the place where the action must be instituted, but in the United States of America a wife may acquire a separate domicile from that of her husband if he has given her cause for divorce. Divorces of domiciled foreigners are granted in several countries of Europe, provided the cause relied on is a cause for divorce in the native country of the parties, and in most continental countries divorces of natives are granted, whether domiciled in their native country or not, the foundation of jurisdiction being nationality, not domicile. Practically in all countries the exercise of jurisdiction for divorce is not affected by the fact that marriage was celebrated in or out of the country. The causes for divorce are varied in kind and in number. In some countries of Europe mutual consent is a sufficient cause under certain restrictions. The number of causes for divorce in Europe vary from one in England to twelve in Sweden. The dream of the academic lawyer is for an international law of marriage and divorce, but the differences between the existing judicial systems of the various great commonwealths of the world are much too great to make a universal law on the subject practicable. In one country only the civil marriage is legal and in another only the ecclesiastical alliance is valid; in one country divorce is allowed, and in another it is denied; in one, difference in religion between the parties is an impediment to marriage, and in another it is not; in one the canon law is controlling, and in another the civil law regulates all questions of matrimonial rights. Even in the matter of age and capacity the greatest variableness exists. As, for instance, the minimum age for marriage. In England it is fourteen for males and fifteen for females; in Germany, twenty-one for males and sixteen for females; In Austria, fourteen for both; in Russia, France, Holland, Switzerland and Hungary, eighteen for males and sixteen for females; in Spain and Greece, fourteen for males and fifteen for females; in Denmark and Norway, twenty for males and fourteen for females; in Sweden, twenty-one for males and seventeen for females; in Finland, twenty-one for males and fifteen for females; in Servia, seventeen for males and fifteen for females. It will be observed that the different laws as to the minimum age for marriage do not flow from circumstances of climate, religion or culture, but are mainly historical and arbitrary. CHAPTER II. ENGLAND. INTRODUCTION.--The law of England regards marriage as a contract, a status and an institution. As a contract it is in its essence an expressed consent on the part of a man and woman, competent to make the contract, to cohabit with each other as husband and wife, and with each other only. As Lord Robertson says: "It differs from other contracts in this, that the rights, obligations or duties arising from it are not left entirely to be regulated by the agreement of parties, but are to a certain extent matters of municipal regulation, over which the parties have no control by any declaration of their will." As a status created by contract, marriage confers on the parties certain privileges and exacts certain duties under legal protection and sanction. From the earliest period of the recorded history of England it has always been accepted doctrine that marriage as an institution is the keystone of the commonwealth and the highest expression of morality. The men of the law in England were anciently persons in holy orders, and the judges were originally bishops, abbots, deans, canons and archdeacons. As late as 1857 the clergy in their ecclesiastical courts had exclusive jurisdiction of matrimonial causes. They administered the Canon Law of the Western Church affecting marriage and ruled that in marriages lawfully made, and according to the ordinance of matrimony, the bond thereof can by no means be dissolved during the lives of the parties. By the passage of the Divorce Act of 1857 the jurisdiction in matrimonial causes was transferred to a new civil tribunal, and absolute divorce was sanctioned, with permission of remarriage on proof of adultery on the part of the wife, or adultery and cruelty on the part of the husband. It is seriously contended by some eminent churchmen that in spite of this legislation the Church of England still has as its definite existing law the old rule which obtained before the Reformation, namely, that marriage is indissoluble; that a limited divorce from bed and board may be permitted, but that an absolute divorce which leaves either party free to remarry during the lifetime of the other is forbidden. This supposed conflict between the civil and ecclesiastical laws of the realm furnishes an academic topic and engenders bad feeling, but it has no real existence. The Church of England exists by Act of Parliament and manifestly has no power to nullify statutes enacted by the legislature which established it as the official religious organization of the Kingdom. The civil courts of England have never considered marriage as a sacrament or religious ordinance, but have held that the dogmas and precepts of Christianity do not affect the civil status of marriage, but simply add to it a religious character. In this respect the law of England is in exact harmony with the attitude of the primitive Christian Church. Lord Stowell tells us that "in the Christian Church marriage was elevated in a later age to the dignity of a sacrament, in consequence of its divine institution, and of some expressions of high and mysterious import concerning it contained in sacred writings. The law of the Church, the canon law (a system which, in spite of its absurd pretensions to a higher origin, is in many of its provisions deeply enough founded in the wisdom of man), although in conformity to the prevailing theological opinion, it reverenced marriage as a sacrament, still so far respected its natural and civil origin as to consider that where the natural and civil contract was formed it had the full essence of matrimony without the intervention of the priest, it had even in that state the character of a sacrament; for it is a misapprehension to suppose that this intervention was required as a matter of necessity even for that purpose before the Council of Trent." The English courts only recognize as a true marriage one which, in addition to being valid in other respects, involves the essential requirement that it is a voluntary union of one man and one woman for life to the exclusion of all others, which is substantially the definition of marriage given by Lord Penzance in the leading case of Hyde v. Hyde. No marriage is recognized which is founded on principles which are in conflict with the general morality of Christendom. The term Christendom is used as a matter of convenience only. It includes all those nations generally recognized to be civilized, whatever may be their prevailing religion. LEX LOCI CONTRACTUS.--It is a well-established rule that the law of the place where the contract of marriage was concluded, that is, the _lex loci contractus_, or, as it is sometimes termed, the _lex loci celebrationis_ (law of the place of celebration), alone governs the court in ascertaining whether or not the marriage is regular. All the formal preliminaries, such as publication of banns, or license, and consent of the parties entitled to give or withhold consent according to the _lex loci contractus_, must be complied with. LEGAL AGE.--The legal age for marriage in England and Wales is fourteen for a male and twelve for a female. The consent of the father of each of the contracting parties is required of those under twenty-one. If the father is dead the consent of the mother is required unless there is a guardian appointed by the father. FORMAL REQUIREMENTS.--There are certain formal preliminaries to a valid marriage in England, such as the publication of banns, or the procurement of a common or special license which operates as a dispensation with the banns. BANNS.--The banns must be published on three Sundays in the parish in which the parties reside, and if they reside in different parishes the banns must be published in each parish. The marriage ceremony must be celebrated in one of the churches where the banns have been published. If they are published in two different parishes the clergyman of one parish must give a certificate of publication, which must be delivered to the clergyman who solemnizes the marriage. The parties must reside in the parish for fifteen days prior to the publication of the banns, and the marriage must take place within three months of the last publication. Where a man has procured the banns to be published in false names, or has concealed his true name, he will not be allowed to annul the marriage on that account only. A party cannot take advantage of his own fraud for the purpose of invalidating a marriage. LICENSE.--No publication of banns is necessary in the case of a marriage under a bishop's license. Licenses may be obtained at the offices of the bishop's registrars, and full information as to procuring a license may be obtained through the local clergy. A license granted by a bishop is only available in his diocese, and one of the parties must have resided for fifteen days immediately preceding the issue of the license in the parish in which the marriage is to take place. The cost varies in different dioceses, but it is usually between £2 and £3. The Archbishop of Canterbury has power to issue a special license enabling a marriage to be solemnized at any time or place. The cost of this is from £20 to £30, and it can be obtained at the Faculty Office, Doctors' Commons, London, E.C. CERTIFICATE OF REGISTRAR.--A marriage by the certificate of the registrar of marriages may take place at a Roman Catholic place of worship, a Nonconformist chapel, or at the office of the registrar of marriages. The parties must have resided in the district at least seven days preceding the date of the notice, which must be given to the superintendent registrar, or, if they live in different districts, then notice must be given to the superintendent registrar of each district, and it must be exhibited in his office for twenty-one days. If no valid objection to the marriage is made the superintendent registrar issues his certificate and the marriage may take place within three months. The cost, including certificate, is 9s. 7d. REGISTRAR'S LICENSE.--A marriage by registrar's license may take place either at his office or at a Roman Catholic or Nonconformist place of worship. Notice must be given by one of the parties to the superintendent registrar of the district in which he or she has resided for at least fifteen days, and he will then issue his license at the expiration of one day. The marriage can then immediately take place, or it may take place any time within three months. The cost is £2 14s. 6d. No marriage license will be issued to parties, either of whom is under twenty-one years of age, unless one of the parties makes oath that the consent of the proper persons has been obtained, or that there is no person alive whose consent would ordinarily be necessary. A marriage may be legally concluded without a marriage license if banns are duly published. HOURS FOR MARRIAGE.--Marriages can only be solemnized between 8 a.m. and 3 p.m., except in the case of marriages by special license and Jewish marriages. FALSE NAMES.--Where both parties conspire to procure banns to be published in a false name or names or to practise a fraud with the object of obtaining a license the marriage may be annulled, but if the one party only is guilty the marriage will be valid. MARRIAGE BY REPUTATION.--In most cases it is necessary to produce clear evidence of a marriage ceremony, but in some exceptional instances a marriage may be proved by long reputation--_e.g._, if two persons have lived together as man and wife for many years, and if they have always been regarded as such by their friends and neighbours, the Court will presume a legal marriage unless evidence is produced to prove that the parties were not lawfully married. CERTIFICATES OF MARRIAGES--MARRIAGE LINES.--A marriage certificate (marriage lines) can be obtained at the time of the marriage for 2s. 7d. If applied for subsequently the cost will be 3s. 7d. A certificate can be obtained at the church, chapel, synagogue or meeting house where the ceremony was performed, or at the General Register Office, Somerset House, or at the office of the superintendent registrar of the district where the marriage took place. The entry in the register at either of these places may be inspected on payment of 1s. A certificate of a marriage entered into in England or Wales prior to July 1, 1837, should be obtainable either from the registrar general or from the church where it was solemnized. IMPEDIMENTS--PROHIBITED DEGREES. A man may not marry his: 1 Grandmother. 2 Grandfather's Wife. 3 Wife's Grandmother. 4-5 Father's Sister, Mother's Sister (_i.e._, aunt by blood). 6-7 Father's Brother's Wife, Mother's Brother's Wife (Uncle's Wife, _i.e._, aunt by affinity). 8-9 Wife's Father's Sister, Wife's Mother's Sister (Wife's Aunt). 10 Mother. 11 Stepmother. 12 Wife's Mother (Mother-in-law). 13 Daughter. 14 Wife's Daughter (Step-daughter). 15 Son's Wife (Daughter-in-law). 16 Sister. 17 Brother's Wife (Sister-in-law). 18-19 Son's Daughter, Daughter's Daughter, (Granddaughter). 20 Son's Son's Wife (Son's Daughter-in-law). 21 Daughter's Son's Wife (Daughter's Daughter-in-law). 22 Wife's Son's Daughter (Stepson's Daughter). 23 Wife's Daughter's Daughter (Stepdaughter's Daughter). 24-25 Brother's Daughter, Sister's Daughter (niece). 26-27 Brother's Son's Wife, Sister's Son's Wife (nephew's wife). 28-29 Wife's Brother's Daughter, Wife's Sister's Daughter (niece by affinity). A woman may not marry her: 1 Grandfather. 2 Grandmother's Husband. 3 Husband's Grandfather. 4-5 Father's Brother, Mother's Brother (uncle by blood). 6-7 Father's Sister's Husband, Mother's Sister's Husband, (Aunt's Husband, _i.e._, uncle by affinity). 8-9 Husband's Father's Brother, Husband's Mother's Brother (husband's uncle). 10 Father. 11 Stepfather. 12 Husband's Father (father-in-law). 13 Son. 14 Husband's Son (stepson). 15 Daughter's Husband (son-in-law). 16 Brother. 17-18 Husband's Brother, Sister's Husband (brother-in-law). 19-20 Son's Son, Daughter's Son (grandson). 21 Son's Daughter's Husband (son's son-in-law). 22 Daughter's Daughter's Husband (daughter's son-in-law). 23 Husband's Son's Son (stepson's son). 24 Husband's Daughter's Son (stepdaughter's son). 25-26 Brother's Son, Sister's Son (nephew). 27-28 Brother's Daughter's Husband, Sister's Daughter's Husband (niece's husband). 29-30 Husband's Brother's Son, Husband's Sister's Son (nephew by affinity). GROUNDS OR CAUSES FOR DIVORCE.--A husband is entitled to a divorce if his wife has committed adultery, but a wife is not so entitled unless her husband has committed incestuous adultery, bigamy, rape, sodomy, bestiality, adultery coupled with cruelty, or adultery coupled with desertion without reasonable excuse for two years or more. Incestuous adultery is adultery with a woman within the prohibited degrees. A wife will not be granted a decree of divorce on the ground of her husband's adultery coupled with cruelty unless the cruelty relied on consists of bodily hurt or injury to health, or a reasonable danger or apprehension of one or the other of them. There must be at least two acts of cruelty on the part of the husband. The communication of venereal disease when the husband knows of his condition is an act of cruelty. PROCEDURE.--The application for a divorce is made by a petition to the Probate, Divorce and Admiralty Division of the High Court of Justice. The party seeking relief is called the petitioner, and the party against whom the petition is brought is called the respondent. The party with whom a husband alleges his wife has committed adultery is called the co-respondent. The person with whom a wife alleges her husband has committed adultery is not a party to the suit. However, a woman implicated in a divorce suit may, upon proper application, secure an order permitting her to attend the proceedings as an intervener. Divorce proceedings in England are very expensive; the costs in an ordinary uncontested suit amount to from thirty to forty pounds sterling. A petitioner or respondent who is not worth twenty-five pounds after payment of his or her debts, exclusive of wearing apparel, may sue or defend in _forma pauperis_. A person whose income exceeds one pound a week cannot, except in special cases, sue or defend in _forma pauperis_. A party desiring to sue or defend in _forma pauperis_ must as a preliminary measure prepare a written statement of his or her case, setting forth the facts relied upon as a cause of action or defence, and obtain thereon an endorsed opinion of a barrister-at-law setting forth his professional opinion that the cause of action or defence as stated is good in law. The applicant must then make an affidavit, attaching the statement and the barrister's opinion. This affidavit is then filed in the Divorce Registry of Somerset House, where two days later, if a proper case is made out, an order is issued granting the applicant leave to sue or defend in _forma pauperis_. No fees are charged in respect to this application nor upon the subsequent proceedings in court. No solicitor or barrister is assigned to the party proceeding in this form. JURISDICTION.--The Court will only entertain jurisdiction when the husband is domiciled in England. If the husband is temporarily residing abroad an action by him or his wife for divorce must be instituted in England. The English Courts do not recognize a change of domicile which is obtained simply to enable the parties to obtain a divorce in another country, the laws of which offer greater facilities. If the domicile of the husband is in England, and either the husband or the wife obtains a decree of divorce in the United States of America or elsewhere, the English courts will treat such a divorce as a nullity. A person's domicile is his or her permanent home. An Englishman who lives in America for twenty-five years is not domiciled there unless by all the facts his conduct shows that he has abandoned his English domicile. CONDONATION.--A matrimonial offence which is a sufficient cause for divorce may be condoned or forgiven by the spouse aggrieved, and such condonation is a good defence to the action. But subsequent misconduct will revive the offence as if there had been no condonation. CONNIVANCE.--It is a sufficient defence to an action for divorce for the respondent to show that the adultery complained of was committed by the connivance or active consent of the petitioner. COLLUSION.--Collusion is the illegal agreement and co-operation between the petitioner and the respondent in a divorce action to obtain a judicial dissolution of the marriage. FORM OF DIVORCE DECREES.--An English decree of divorce is in the first instance _nisi_, or provisional. If after six months it is unaffected by any intervention by the King's Proctor, or any other person, it can be made absolute upon proper application. KING'S PROCTOR.--This is the proctor or solicitor representing the Crown in the Probate, Divorce and Admiralty Division of the High Court of Justice in matrimonial causes. In his official capacity he can only intervene in a divorce suit on the ground of collusion. Sir James Hannen, discussing the powers of this officer, said in a leading case: "If, then, the information given to the King's Proctor before the decree _nisi_ does not rise to a suspicion of collusion, but only brings to his knowledge matters material to the due decision of the case, he is not entitled to take any step, and the direction of the Attorney-General would probably be that he should watch the case to see if these material facts are brought to the notice of the court. If at the trial they should be, there will be no need for the King's Proctor to do anything more, for he would not be entitled to have the same charges tried over again unless material facts were not brought to the notice of the court. "If, however, those material facts are not so brought to the notice of the court by the parties, he will then be entitled as one of the public, but still acting under the direction of the Attorney-General, to show cause against the decree being made absolute." In special cases the court has power to make the decree absolute before the expiration of six months after the decree _nisi_. Until the decree is made absolute neither party can lawfully contract another marriage; and in the event of the suit being contested the parties must further wait until the time for an appeal has passed. ALIMONY, TEMPORARY AND PERMANENT.--During the pendency of the suit the husband is liable to provide his wife with alimony or maintenance. The amount granted is within the court's discretion, but generally it is about twenty-five per centum of the husband's income. Upon the granting of a decree in the wife's favour the court has power to grant the wife permanent alimony, the amount of which depends on all the facts, such as the husband's income, the wife's means and the social status of the parties. If a wife secures an order for alimony against her husband, he being a man of property, the court may require him to give security for its payment or direct him to make a transfer of money to a trustee or trustees for the convenient payment to the wife. Permanent alimony is usually smaller than temporary alimony, or alimony _pendente lite_, but no rule as to the amount can be safely stated, it resting in the discretion of the Court. If a husband has no considerable property he will be directed to pay the alimony awarded against him in monthly or weekly instalments. INSANITY.--Insanity is neither a cause nor a bar to divorce. If an insane wife commits adultery, or if an insane husband commits adultery coupled with the other offences which make out a cause of action against him, the innocent party is entitled to a decree of divorce. So an insane party may be a petitioner for divorce, but can only appear by his or her committee in lunacy. HUSBAND'S NAME.--A divorced wife is entitled to continue to use her former husband's surname. ANNULMENT OF MARRIAGE.--An action for the annulment of marriage has for its purpose the setting aside of the marriage contract on the theory that proper consent to the marriage has never been given by both the parties. The following are the causes or grounds for such annulment: 1. A prior and existing marriage of one of the parties; 2. Impotency, or such physical malformation of one of the parties which prevents him or her from consummating the marriage by sexual intercourse; 3. Relationship within the prohibited degrees; 4. Marriage procured by fraud, violence or mistake; 5. Insanity of one of the parties at the time of the marriage; 6. Marriage performed without legal license, or without the required publication of banns. JUDICIAL SEPARATION.--By the Matrimonial Causes Act a decree of judicial separation, which is equivalent in effect to a divorce _a mensa et thoro_ under the old law, may be obtained either by the husband or wife on the ground of adultery, or cruelty, or desertion without legal cause for two years and upwards. The defences which may be set up by the respondent vary according to the cause relied upon by the petitioner, but there is one absolute bar in suits for judicial separations brought on any ground, and that is that the petitioner has committed adultery since the date of the marriage. SEPARATION ORDERS.--Besides the ordinary suit to obtain a judicial separation which must be prosecuted in the High Court a wife can obtain speedy and inexpensive relief by making an application to a police magistrate, or a board of magistrates, for a separation order. This remedy is limited to married women whose husbands are domiciled in England or Wales. Such separation orders are intended to furnish summary relief to the wives of workingmen, and the amount awarded for the wife's support to be paid by her husband cannot exceed two pounds a week, no matter what the husband's income may be. The following are the causes for which, upon application, a magistrate or board of magistrates is authorized to grant a separation order: 1. Habitual drunkenness of the husband, which renders him at times dangerous to himself or others, or incapable of managing himself or his affairs; 2. When the husband has been convicted of an aggravated assault upon his wife, or has been convicted by an Assize or Quarter Sessions Court of an assault and has been sentenced to a fine of more than five pounds or to imprisonment for more than two months; 3. Desertion by the husband of his wife; 4. Persistent cruelty of the husband toward his wife; 5. Neglect to provide reasonable maintenance for wife or infant children. By the Licensing Act of 1902 a husband is entitled to a separation order by a magistrate or board of magistrates if his wife is an habitual drunkard. RESTITUTION OF CONJUGAL RIGHTS.--Husbands and wives are entitled to each other's society, and if, without sufficient reason, either of them neglects to perform his or her obligations the injured party may institute what is known as a suit for restitution of conjugal rights, in which the court will grant a decree directing the offending party to render conjugal rights to the other party. If the decree is not complied with, such non-compliance is equivalent to desertion, and a suit for judicial separation may be instituted immediately. If the husband is the offending party, and if he has been guilty of adultery, a suit for divorce may at once be instituted; or if he commits adultery subsequently to the date of the decree for restitution, proceedings for divorce may be taken. Furthermore, if the suit for restitution is brought by the wife, the husband may be directed to make such periodical payments for her benefit as the court may think just. If the suit for restitution is brought by the husband, and if the wife is entitled to any property, the court may order a settlement for the whole or part of it for the benefit of the husband and children of the marriage, or either or any of them, or may order the wife to pay a portion of her earnings to the husband for his own benefit, or to some other person for the benefit of the children of the marriage. A husband cannot compel his wife to live with him by force, and if he seizes and retains possession of her, she or her relatives can obtain a _habeas corpus_ to compel him to release her, but persons who wrongfully induce a wife to leave her husband, or who detain her from his society by improper means, are liable to an action for damages by him. If a husband declines to live with his wife because he discovers that she has been unchaste before marriage she cannot obtain a decree for restitution of conjugal rights unless he knew of the fact before the marriage took place. If a husband has been guilty of cruelty he cannot obtain a decree for restitution. FOREIGN MARRIAGES.--The Foreign Marriage Act of 1892 (55 and 56 Vict. c. 23) forms a complete code upon the subject of the marriage of British subjects abroad. Its chief requirement is that one at least of the parties to the marriage must be a British subject. Notice of the proposed marriage must be given fourteen days before the ceremony, and it must be performed before one of the following officials, who is termed in the Act a "marriage officer": the British ambassador, minister or chargé-d'affaires, accredited to the country where the marriage takes place; the British consul, governor, high commissioner, or official resident. The term consul in the Act includes a consul-general, a vice-consul, pro-consul, or consular agent. If the woman is a British subject, and the man is a subject or citizen of another country, the marriage officer must be satisfied that the intended marriage would be recognized by the laws of the country where the man to be married belongs. In 1896 there was passed the Marriage with Foreigners Act (6 Edw. 7, 3. 40), which is intended to protect British subjects who contract marriages with subjects or citizens of other countries, either at home or abroad, and to run the risk of having their marriages treated as invalid by the law of the country of the foreign contracting party. It provides for the granting of certificates by competent authority in the country to which the foreign party to the marriage owes allegiance, stating that there is no lawful impediment to the proposed marriage. CONFLICT OF LAWS.--English courts do not recognize a decree of divorce granted by the courts of a foreign country as having any effect outside of the country where granted, unless at the time of the beginning of the action which resulted in the decree both parties were domiciled within the jurisdiction of the court which granted it. This rule applies to divorce decrees obtained in Scotland because for all the purposes of private international law Scotland is a foreign country. The English courts will, however, recognize as possessing extra-territorial validity a decree of divorce which is recognized as valid by the courts of the country where the parties were actually domiciled at the time of its being granted. In the case of Gillig v. Gillig, decided in 1906, the English High Court recognized as valid in England a divorce granted in South Dakota, U. S. A., of parties domiciled in New York, because the decree in question was recognized as valid by the courts of the State of New York. It is the doctrine of English courts that an honest adherence to the principle that domicile alone gives jurisdiction in a divorce action will preclude the scandal which arises when a man and woman are held to be husband and wife in one country and strangers in another. CHAPTER III. SCOTLAND. The Act of Union between England and Scotland, A. D. 1707 (6 Anne, c. 2), which made one legislature, the present British Parliament, for the two countries, expressly provided that the existing law and judicial procedure of each kingdom should be continued, except so far as they might be repealed by the Act, or by subsequent legislation. The foundation of Scottish jurisprudence is the Roman law, and the canon law which is derived from it, consequently the law of marriage and divorce in Scotland differs from that of England. The status of marriage by Scottish law may be created in any one of three ways: First, by regular or public marriage celebrated in a church or private house by a minister of religion; second, by an irregular or clandestine marriage entered into without the assistance of a clergyman or any other third party, and, third, by declaration, or declarator, wherein the parties make a declaration confessing an irregular union, and are fined for the "offence," and obtain an extract of the "sentence" which answers to the purpose of a certificate of marriage. The Scottish definition of marriage is given by Lord Penzance as follows: "The voluntary union of one man and one woman to the exclusion of all others." IMPEDIMENTS.--Males under fourteen and females under twelve cannot marry, but if persons under age, called in the Scottish law "pupils," live together and continue to do so after both have passed their nonage they are considered married, on the ground that there is evidence of a contract after the impediment has ceased to exist. INSANITY.--An insane person cannot give a valid consent and therefore the insanity of either party is an impediment. INTOXICATION.--There can be no marriage if one of the parties at the time of the formal union was so intoxicated as to be bereft of reason, but a marriage voidable on the ground of either insanity or intoxication may be validated by the consent of both parties after a return to sanity or sobriety. CONSANGUINITY AND AFFINITY.--As to the impediments which arise from blood and marriage, the 18th Chapter of the Book of Leviticus is practically the law of Scotland. Marriage is forbidden between ascendants and descendants _ad infinitum_, and in the collateral line between brothers and sisters, consanguinian or uterine, and between all collaterals, one of whom stands in _loco parentis_ to the other. It is still an academic question whether or not the marriage of a brother and sister both born illegitimate is prohibited. Of course, a previous marriage still subsisting is an impediment. GRETNA GREEN MARRIAGES.--In order to put a stop to the Gretna Green marriages which have furnished material for much romance in books and much sorrow in actual life, it was enacted by 19 and 20 Vict., c. 96, that "no irregular marriage contracted in Scotland by declaration, acknowledgment or ceremony (after 31 Dec., 1856) shall be valid unless one of the parties had at the date thereof his or her usual place of residence there, or had lived in Scotland for twenty-one days next preceding such marriage." It is manifest from all the decisions that in the absence of impediments, marriage in Scotland is constituted by interchange of consent. No formal expression of such consent is necessary. If the court is satisfied, from the whole circumstances and the conduct of the parties before and after, that they have given genuine consent to present marriage, it will be held that the marriage has been validly constituted. HUSBAND AND WIFE.--By the common law of Scotland the legal status of a married woman is so merged in that of her husband as to leave her incapable of independent legal action. Recent legislation has, however, modified this doctrine. DIVORCE.--The term divorce as used in this chapter means an absolute dissolution and setting aside of a legal marriage. The Scottish courts recognize two grounds for divorce, adultery and desertion. These grounds are open to either husband or wife. The action can only be maintained by the innocent party. ADULTERY.--The evidence must be such as would "lead the guarded discretion of a reasonable and just man to the conclusion that adultery has been committed." If the court has jurisdiction it does not matter that the offence was committed out of Scotland. DEFENCES.--Besides the denial of the allegation of adultery, the following are sufficient defences: 1, collusion; 2, condonation; 3, long delay in bringing the action; 4, connivance or lenocinium of the plaintiff, who is called a pursuer in Scottish procedure; 5, the honest belief that the intercourse alleged to be adultery was lawful, as when a wife enters into a second marriage in the reasonable belief that her first husband is dead. DESERTION.--Desertion or, as the Scottish lawyers put it, "non-adherence," for a period of four years, against the will of the party deserted, is the second ground for divorce. Mere separation, as, for example, the absence of the husband on necessary business or his imprisonment, is not such non-adherence as will entitle the pursuer to a decree. The desertion must be a deliberate and obstinate withdrawal from cohabitation and companionship. If a wife refused to accompany her husband abroad, and he went alone, her refusal, and not his going away, would constitute desertion. FOREIGN DIVORCE.--If a native of Scotland acquires a foreign domicile, and obtains a divorce while abroad, the divorce would be recognized in Scotland if granted for either of the two causes sufficient by Scottish law. EFFECTS OF DIVORCE.--The judgment of divorce completely sets aside the marriage, and both parties are free to marry again. On divorce the innocent party also comes into the immediate enjoyment of all the rights in the estate of the guilty spouse, or the funds settled by the marriage contract, as if the offending party had died at the date of the decree. Conversely, the guilty spouse loses all claim to such legal rights as he or she would have had on the death of the innocent party but for the divorce. CHAPTER IV. IRELAND. Ireland like Scotland has its separate judicial system, and many of its laws differ from those of all other parts of the British Empire. The Irish law relating to marriage and matrimonial controversies is administered under the Matrimonial Causes and Marriage Law (Ireland) Amendment Act of 1870. It is practically the same as the English law as it existed before 1857. The Irish Act of 1870 transferred the exercise by the Ecclesiastical Courts prior to the disestablishment of the Church of Ireland to a court for matrimonial causes and assigned the trial of such causes to the judge of the Court of Probate. Under the Irish Judicature Act of 1877 this jurisdiction is now vested in the Supreme Court of Judicature and is exercised by the probate and matrimonial judge. It is impossible to obtain a decree of divorce from the bonds of matrimony in the courts of Ireland. The only divorce decree granted is from bed and board, and amounts in effect to what is termed a judicial separation in England. The grounds for the limited form of divorce granted by the courts are adultery, cruelty or unnatural practices. In order to obtain a decree of complete divorce the petitioner must promote a bill in the House of Lords to dissolve the marriage and allow the petitioner to marry again, which bill must be founded upon and follow a divorce from bed and board obtained in the Irish courts. When a petition is presented to the House of Lords a wife must prove her husband's adultery coupled with cruelty and a husband must prove his wife's adultery and must, if possible, make his wife's paramour a party by instituting proceedings against him for criminal conversation in the Irish courts. NULLITY.--An action for nullity of marriage can be maintained on the following grounds: 1. Impuberty. 2. Relationship of the parties within the prohibited degrees. 3. An existing prior marriage of one of the parties. 4. Incapacity of the parties to conclude the marriage contract, as in the event of one being a lunatic. 5. Non-compliance with marriage laws. 6. Fraud in procuring the marriage. 7. Impotency. CHAPTER V. THE FRENCH LAW OF MARRIAGE AND DIVORCE. MARRIAGE.--A man cannot contract a marriage before he has completed his eighteenth year and a woman until she has completed her fifteenth year. However, the President of the Republic may grant a dispensation as to age upon good cause appearing. A son who has not reached the age of twenty-five, or a daughter who has not reached the age of twenty-one, cannot marry without the consent of their parents; but if the parents disagree between themselves the consent of the father is sufficient. If both the father and the mother are dead or unable to give consent the grandparents take their place. Sons or daughters less than twenty-one years of age, who have no parents or grandparents, or only such as are in a condition which renders them incapable of giving consent, cannot marry without the consent of a family council. IMPEDIMENTS.--Marriage is prohibited between all legitimate ascendants and descendants in the direct line and between persons who are connected by marriage and related in the same degree. Marriage is also prohibited between uncle and niece and aunt and nephew. The President of the Republic may, nevertheless, on good cause being shown, dispense with the prohibitions contained in the Civil Code forbidding the marriage of a brother-in-law with a sister-in-law, and the marriage between uncle and niece, and aunt and nephew. FORMALITIES.--A marriage must be celebrated publicly before the civil status officer of the civil domicile of one of the parties. The officer of the civil status before celebrating a marriage must publish the banns twice before the door of the Maison Commune, at an interval of eight days. The President of the Republic, and also the official whom he entrusts with this power, may dispense, for good cause, with the second publication of the banns. FOREIGN MARRIAGES.--A marriage celebrated in a foreign country between French citizens or between a French citizen and a foreigner is valid if it is performed according to the forms customary in such country, provided always that the marriage has been preceded by the publications of the banns pursuant to the code. The record of a marriage contracted in a foreign country must be transcribed within three months of the return of the French citizen to the territory of the Republic in the public marriage registers of his civil domicile. VOIDABLE MARRIAGES.--The validity of a marriage which has been contracted without the free consent of both parties, or without the free consent of one of them, can only be impugned by the parties themselves or by the party whose consent was not freely given. When there has been an honest mistake as to the personality of one of the parties the validity of the marriage can only be impugned by the person who was misled. Such mistakes as to personality include mistakes as to quality as well as to identity. For example, the Court of Cassation held in 1861 that where a woman had been misled into marrying an ex-convict by ignorance of the fact, the marriage was annulable. An action for a declaration of nullity of marriage for any cause cannot be maintained by parties to the marriage, or by the relations whose consent was necessary, when such marriage has been ratified or confirmed knowingly by those whose consent was necessary, or after a year has passed since they acquired knowledge of the cause for an action without any application to the courts for relief. Every marriage which has not been contracted publicly, and has not been celebrated before a competent public official, can be impugned by the parties themselves, by their fathers and mothers, by the ascendants, and by all who have an existing vested interest, as well as by the Public Prosecutor. No one can legally claim the status of husband or wife, or the effects and privileges resulting by law from marriage, without the production of a certificate of the marriage celebration, except in the cases provided for by Article 46 of the code, namely, when no records have ever existed, or the same have been lost or destroyed. In such cases the marriage may be established by oral evidence. The fact that by common repute the parties are married does not dispense with the necessity of producing the record of the celebration. However, if there are children born of two persons who have lived openly as husband ind wife, and who are both dead, the legitimacy of their children cannot be assailed on the sole ground that a record of their parents' marriage is not produced. A marriage which has been declared a nullity has, if contracted in good faith, the civil effects of a marriage so far as the parties themselves and their children are concerned. If only one of the parties has acted in good faith the legal consequences of marriage only exist in favour of the innocent party and of the children of the marriage. The last two paragraphs, which are virtually a translation of Articles 201 and 202 of the Civil Code, are very important to foreigners who marry French citizens. Until a court has pronounced the marriage a nullity the marriage between a French citizen and a foreigner celebrated abroad is binding upon the parties, even though the exacting forms required by the French law have not been complied with. If an Englishwoman in good faith marries a Frenchman in London she is entitled by French law to the civil rights of a wife, and her children the issue of the marriage would be considered legitimate, although the marriage had not been celebrated after the publication of banns in the manner prescribed by the code; or the record of such celebration transcribed within three months of the return of the French husband to France. The foreign wife would have the same rights even if she married a Frenchman under twenty-five years of age without the previous consent of his parents. Of course, such a marriage could be declared null, leaving both parties free to marry again. It must be always carried in mind that to constitute a valid marriage under French law which cannot be impugned by anyone all the statutory conditions imposed by the Civil Code must be complied with. HUSBAND AND WIFE.--Married persons owe each other fidelity, support and assistance. A husband owes protection to his wife. A wife owes obedience to her husband. A wife is obliged to live with her husband and to follow him wherever he determines it proper to reside. A husband is obliged to receive his wife and to provide her with all that is necessary for the requirements of life, according to his means and condition. A wife cannot bring a civil action without the consent of her husband, even if she is a public trader and is not married under the system of a community of goods and has separate property. A wife cannot give away, convey, mortgage or acquire property, with or without a consideration, without her husband concurring in the document by which such transfer is made, or giving his written consent. A woman cannot become a public trader without her husband's consent. It is not necessary for a wife to have her husband's consent to make a will. MARRIAGE DUTIES.--The husband and wife are mutually bound to feed, support and educate their children. Children are bound to support their parents and other ascendants who are in want. DISSOLUTION OF MARRIAGE.--A marriage is dissolved: _a._ By the death of one of the parties; _b._ By a divorce pronounced according to law. SECOND MARRIAGES.--A woman cannot legally marry again until ten months have elapsed since the dissolution of her previous marriage. DIVORCE CAUSES FOR DIVORCE.-- 1. Either party to the marriage is entitled to a divorce on the ground of the adultery of the other. 2. Either party is entitled to a divorce because of the cruelty or serious insults of the one toward the other. This includes not only such violent cruelty as endangers life, but all sorts of less serious assaults. Any acts, words or writings by which one of the parties reflects on the honour and good name of the other furnish cause for a divorce. 3. The fact that one of the parties has been sentenced to death, imprisonment, penal servitude, transportation, banishment or loss of civil rights, and is branded with infamy, entitles the other party to a divorce. That article of the Civil Code which provided for divorce by mutual consent, owing to incompatibility of temper, has been repealed. DIVORCE PROCEDURE.--A party who wishes to institute a proceeding for divorce must present the petition personally to the President of the Court or to the judge who is acting in that capacity. If it appears that the petitioner is unable to attend in person the President of the Court or the judge acting as such is required to go, accompanied by his registrar, to the residence of the petitioner. The judge, upon seeing and hearing the petitioner and after having made such comment as he may deem proper, will affix his order to the end of the petition, directing the parties to appear before him on a day and at the hour then fixed, and will direct an officer to serve the citation upon the defendant. It is within the judge's discretion to grant leave in the same order to the petitioner to reside separate during the pendency of the action from the defendant. If the petitioner be a wife, the judge may fix the place of her temporary residence. The next step is that upon the day appointed in the citation the judge hears the parties in person. Upon such hearing it is the duty of the judge to do his best to conciliate the parties. In case the parties refuse to be conciliated, or the defendant defaults in appearance, the judge then grants an order certifying to the fact and giving the petitioner leave to issue a citation requiring the defendant to appear in court. The judge has authority under the code to make such a provisional order respecting the payment to a wife of alimony during the action or concerning the temporary custody of the children as may be necessary and proper. The case is prepared, investigated and judged in the ordinary form, the Ministère Public being heard. The Ministère Public is an official who performs similar duties to those of a King's Proctor in England. The petitioner can at any stage of the case change the petition for a divorce into a petition for a judicial separation. NEWSPAPER REPORTS.--The public press is forbidden under penalty of a fine of from 100 to 2,000 francs to publish the evidence in divorce trials. EFFECTS OF DIVORCE.--Parties who have been divorced cannot become husband and wife again if either of them, after the divorce, have contracted a new marriage since the divorce and been divorced a second time. If parties who have been divorced wish to become husband and wife again a new marriage is necessary. After such a remarriage no new petition for divorce can be entertained for any cause, except that one of the parties since the remarriage has been sentenced to a punishment which involves corporal detention and is branded with infamy. A divorced woman cannot remarry until ten months after the divorce has become absolute. Where the divorce has been granted on the ground of adultery the guilty party can never marry the person with whom he or she was found guilty of the offence. CUSTODY OF CHILDREN.--The custody of the children belongs to the party in whose favour the judgment of divorce has been pronounced, unless the court in the interests of the children, upon the application of the family or the Ministère Public, directs that they be entrusted to the other party or to a third person. Whoever may become entitled to the children's custody, the father and mother each retain their right to superintend the maintenance and education of their children and must contribute thereto in proportion to their means. JUDICIAL SEPARATION.--The same causes which are sufficient to obtain a decree of divorce are sufficient to entitle the party to a separation from bed and board. When a judicial separation has lasted three years the judgment can be changed into a decree of divorce upon the application of either party. A judicial separation carries with it separation of property and restores to a woman her full civil rights, so that she may buy and sell and otherwise act as if she were a single woman. CHAPTER VI. ITALY. MARRIAGE.--Marriage in Italy is governed in practically all its aspects and connections by the regulations contained in the chapter on marriage in the Italian Civil Code (_Il Codice Civile del regno d'Italia_), which went into effect in 1866. These regulations are for the most part the same as those of the French Code, upon which the Italian Code was directly based, the modifications in the Italian Code being mainly in the direction of greater specificness and greater stringency. As in France, civil marriage is the only form of marriage recognized by the State. IMPEDIMENTS.--1. Age. A man may not contract marriage before completing his eighteenth year or a woman before completing her fifteenth. The King may, however, grant a dispensation permitting a man to marry after attaining the age of fourteen and a woman after attaining the age of twelve. 2. Existing previous marriage. As in France. 3. Period of delay. A woman cannot contract a new marriage until ten months after the dissolution or annulment of a former marriage, unless the marriage was annulled on the ground of impotence. But this prohibition ceases from the day the woman has given birth to a child. 4. Consanguinity and affinity. As in France. The King has a right of dispensation similar to that possessed by the President in France. 5. Relationship by adoption. As in France. 6. Mental incapacity. Marriage may not be contracted by one who has been legally adjudged of unsound mind. If an action on this ground is pending against either party to a contemplated marriage the marriage must be suspended until final judgment is given. 7. Homicide. A person who has been legally convicted as a principal or accomplice in a voluntary homicide committed or attempted upon any person may not be married to the latter's consort. As in the case of the preceding impediment, a contemplated marriage must be suspended if an action on this ground is pending against either party. 8. Consent of parents. The age under which the consent of parents or next of kin is required is 25 for males and 21 for females. An adopted child requires the consent of both its natural and adopted parents. If the consent is refused the Italian Code provides for an appeal to the court. Foreigners desiring to be married in Italy must present a certificate from the competent authority of their own country that they satisfy the requirements of the laws of that country. Foreigners ordinarily residing in Italy must also satisfy the requirements of the Italian law. PRELIMINARIES.--The preliminary formalities to marriage are essentially the same in both the French and the Italian Codes. LEGAL OPPOSITION.--Legal opposition to the marriage may be made by the parents or, in want of them, by the grandparents of either party, if they are cognizant of the existence of any legal impediment, even if the parties are of age. In default of ascendants, opposition can also be made by a brother, sister, uncle, aunt, or cousin german, as well as by the guardian or curator duly authorized by the family council, on the ground of lack of the required consent or the infirmity of mind of one of the parties to the marriage. Anyone may oppose the remarriage of his former consort. The public prosecutor is required to oppose the marriage officially when he is cognizant of any impediment, and to facilitate his accomplishment of this duty the registrar is bound to inform him of any impediment that appears to exist. The effect of a legal opposition is to suspend the celebration of the marriage until the case has been determined in court. If the opposition proves to be without legal ground the one filing it, unless one of the ascendants or the public prosecutor, may be held responsible for any damage occasioned by him. CELEBRATION.--Marriage must be celebrated publicly in the communal house and before the registrar of the commune where one of the parties has his or her domicile. Two witnesses are required. RECORD OF MARRIAGE.--The registrar must inscribe a record of the marriage in the civil register giving all the necessary details and must deliver an authenticated abstract of the record to the parties, who without this cannot legally claim to be married or to enjoy any of the legal consequences of marriage. ILLEGITIMATE CHILDREN.--Such children are legitimatized by the subsequent marriage of their parents, although in order to acquire the legal rights of legitimate children they must be formally recognized by their parents. These legal rights are acquired at the time of marriage only if the illegitimate children are legally recognized by their parents in the marriage record or have been legally recognized at some time prior to the marriage; otherwise they date only from the day when such recognition is given subsequent to the marriage. Children of adulterous connections and of persons between whom exists the impediment of relationship by blood or marriage in the direct line, or of relationship by blood in the collateral line up to the second degree, cannot be legitimatized. FOREIGN MARRIAGES.--In order that marriage may be valid in Italy an Italian citizen entering into a marriage in a foreign country must be free to marry under the Italian law and must make publication in the commune in Italy of which he is a resident, or if he is no longer a resident of Italy, in the one in which he last resided. The marriage is valid if celebrated according to the form prescribed by the laws of the country in which it takes place. Within three months after his return to Italy he must have the marriage recorded in the civil register of the commune where he permanently resides. ANNULMENT.--Marriage may be annulled if contracted in contravention of the impediments as to age, existing previous marriage, relationship or homicide. It may also be declared null if it was celebrated before an incompetent official or without the necessary witnesses; in the former case, however, the action cannot be instituted more than a year after the date of celebration. Actions on the foregoing grounds may be brought by the parties themselves, by the nearest ascendants, by the public prosecutor or by any one who has a legitimate or actual interest in the marriage. The validity of a marriage may also be attacked by the party whose consent thereto was not free or who was under error as to the person married; but actions on these grounds are no longer admissible when cohabitation has lasted for a month after the removal of the constraint or the discovery of the error. Impotence, when anterior to marriage, may be put forward as a ground for annulment by either party. Marriage performed without the required legal consent may be attacked by the person whose consent was necessary or by the party to whom it was necessary; but in the former case it cannot be attacked later than six months after marriage, and in the latter, six months after the party in question has attained his majority. Moreover, in cases where only one of the parties has attained the required age it cannot be attacked when the wife, although not yet of age, has become pregnant. The marriage of one who has been legally adjudged of unsound mind can be attacked either by the party himself, his guardian, the family council, or the public prosecutor, if the judgment had already been passed when the marriage was celebrated, or if the infirmity for which the judgment was pronounced was existent at the time of marriage. Marriage cannot, however, be attacked on this ground if cohabitation has endured for three months after the party has been legally adjudged to be once more of sound mind. The public prosecutor is obliged to intervene in all matrimonial causes, even if they were not instituted by him. SEPARATION.--There is no divorce in Italy, and marriage is only dissolved by the death of one of the parties. Personal separation is, however, permitted on the following grounds: 1. Adultery of the wife, or of the husband if he maintains a concubine in his house or openly in another place or when such circumstances concur that the act constitutes a grave indignity (_ingiuria grave_) to the wife. The latter provision is intended to apply particularly to cases where the wife has discovered the husband in _flagrante delicto_. 2. Voluntary abandonment. 3. Violence endangering the life or health, cruelty, threats, or grave mental indignities. 4. Sentence to punishment for crime, except when the conviction was prior to the marriage and the other party was cognizant of it. 5. The wife can ask for a separation when the husband, without any just reason, does not set up an abode, or, having the means, refuses to set one up in a manner suited to his condition. 6. Mutual agreement. Separation on this ground is not valid unless ratified by the court after an attempt at reconciliation has been made. LIMITATIONS TO RIGHT OF ACTION.--The right to obtain a separation is extinguished by condonation, express or tacit. PROCEDURE.--Actions for separations must be brought before the court under whose jurisdiction the defendant is resident or domiciled. Service is ordinarily personal, but if the residence of the defendant is unknown it may be made by a judicial edict giving notice of the action, of which one copy must be posted at the door of the building where the court holds its sessions, while a copy is published in the newspaper designated for the official notices of the court, and another copy is transmitted to the public prosecutor for the district in which the action is brought. Before the case is tried the parties are obliged to appear in person and without attorneys before the President of the Court which has jurisdiction over the case, who hears each party separately and makes such representations as he considers calculated to effect a reconciliation. If a reconciliation is accomplished the fact is noted on the court records and the case dismissed; otherwise the case is sent back to the court for trial. The trial is ordinarily in accordance with the rules of summary procedure. EFFECTS OF DECREE.--The party for whose fault the separation was pronounced incurs the loss of the marriage remainders; of all the uses which the other party had granted in the marriage contract, and also of the legal usufruct. The other party preserves the right to the remainders and to every other use dependent on the marriage contract, even if stipulated as reciprocal. In case both parties are equally at fault each incurs the losses above indicated, the right of support in case of necessity always being preserved. CUSTODY OF CHILDREN.--The tribunal which pronounces the separation also orders which of the parties shall retain the children. For grave reasons it may commit the children to an educational institution or to the charge of a third party. Whatever the disposition of the children, however, both parents retain the right of supervising their education. FOREIGN DIVORCES.--Decrees of divorce granted by foreign courts are not recognized in Italy so far as Italian subjects are concerned. CHAPTER VII. BELGIUM. REQUIREMENTS FOR MARRIAGE.--A man who has not completed his eighteenth year and a woman who has not completed her fifteenth year cannot contract marriage. Nevertheless, it is within the power of the sovereign to grant a dispensation setting aside this requirement for good and sufficient causes. There can be no marriage in Belgium without mutual consent. It is forbidden to contract a second marriage before the dissolution of the first. A son or a daughter who has not reached the age of twenty-one years cannot contract a marriage without the consent of his or her father and mother. In case of disagreement between the father and mother on this subject the consent of the father is sufficient. A disagreement between a father and a mother as to giving consent to the marriage of their child can be established by a notarial record, by a summons served by a process server, by minutes of a hearing held on the subject, or by a letter stating the mother's objection to the marriage written by her to a civil officer of the State. If the father or the mother is dead, if either of them is absent or incapable of expressing consent, the consent of the other parent is sufficient. The incapacity of a father or a mother to express consent may be proven by a declaration made by the future spouse whose ascendant is incapable and by four witnesses of full age, of either sex. If the father and the mother are dead, or both are incapable of manifesting their wishes, the grandfathers and the grandmothers take their places. PROHIBITIONS.--In direct line marriage is forbidden between all legitimate or illegitimate ascendants and descendants and their spouses. In the indirect or collateral line marriage is forbidden between brother and sister, legitimate or illegitimate, and their spouses of the same degree. Marriage is forbidden between uncle and niece and aunt and nephew. It is, however, possible for good reasons to obtain a dispensation from the sovereign permitting a marriage within these prohibited degrees. FORMALITIES.--Marriage must be celebrated publicly before a civil officer of the State of the commune and in the commune where one of the contracting parties has his, or her, residence. OBJECTIONS BY THIRD PERSONS.--Of course, a husband or wife of an existing marriage has the right to object formally to his or her spouse contracting another marriage. The father, and, in default of the father, the mother, and, in default of the mother, the grandparents have the right to oppose a marriage of a child or grandchild who has not reached the age of twenty-five years. ANNULMENT.--A marriage which has been contracted without the free consent of the parties, or one of them, may be annulled in the courts, but only on the application of either of the parties when neither of them have given free consent, or on the application of the party whose free consent was not obtained. When there has been an error concerning the identity of either of the parties to the contract the marriage can only be annulled at the instance of the party who has been misled or imposed upon. A marriage which has been contracted without the consent of the father or mother, the ascendants, or the family council, where such consent was a necessary condition precedent, can only be annulled on the application of the person or persons whose consent was wanting. A marriage which has been declared null continues in operation, nevertheless, all the civil effects both for the parents and the children, when the contract was concluded in good faith. OBLIGATIONS OF MARRIAGE.--The parties to a marriage are bound to mutual fidelity, protection and assistance. The husband owes protection to his wife and a wife obedience to her husband. A wife is obliged to live with her husband at whatever residence he may judge to be proper. The husband is obliged to receive his wife and to furnish her with the necessaries of life, according to his ability and social condition. A husband and wife contract together by the fact of marriage itself to nourish, educate and properly care for their children. A wife whose property is mixed with that of her husband, or who keeps her property separate, cannot give, sell, pledge, mortgage, or acquire title to property, with or without a valuable consideration, except on the written consent of her husband. DISSOLUTION OF MARRIAGE.--A marriage is dissolved: 1. By the death of one of the parties; 2. By legal divorce; 3. Abrogation by Article 13 of the Constitution. SECOND MARRIAGE.--A woman cannot conclude a new marriage until ten months after the dissolution of the one precedent. DIVORCE.--A husband is entitled to a divorce because of the adultery of his wife. A wife can only obtain a divorce because of her husband's adultery, when the husband has brought his paramour or concubine into the home he has established for himself and wife. Either party to a marriage is entitled to a divorce because of excessive ill-usage or grievous bodily injuries committed by one against the other. The conviction of one of the parties for an infamous offence entitles the other to institute an action for a divorce. MUTUAL CONSENT.--The mutual and persistent agreement of the parties to be divorced, expressed in the manner provided by law, and after certain formalities and proofs showing that a continuance of the marriage relation is unbearable, and that there exists by agreement of both parties peremptory reasons for a divorcement, is sufficient ground for a decree of divorce. At a meeting of the International Law Association, held at the Guildhall, London, on August 4th, 1910, Dr. Gaston de Leval, legal adviser to the British legation at Brussels, pleaded in favour of the Belgian system of divorce by mutual consent. Extremely few cases, he said, of such divorces took place, the proportion not being more than three per cent. on the average of Belgian divorces. He argued that such a divorce was at least as moral and difficult to obtain as any other kind of divorce, and in most of the cases the most difficult to obtain. CHAPTER VIII. SWITZERLAND. The marriage and divorce laws of the Swiss Republic are federal--that is, operating throughout all the cantons of the confederation. Prior to January 1, 1876, when the present federal law went into effect, the different cantons had individual laws regulating divorce. QUALIFICATIONS FOR MARRIAGE.--1. Age. A man must be at least eighteen years of age and a woman at least sixteen in order to contract a valid marriage. 2. Mental capacity. Lunatics and idiots are prohibited from marrying. 3. Free consent. No marriage is valid without the free consent of the parties. Duress, fraud or error in the person precludes the presumption of consent. 4. Consent of parents. Parental consent is required of all persons under twenty years of age. If the parents are dead or incapable of manifesting their will the consent of a guardian is necessary. If the guardian refuses consent the parties may appeal from his decision to the courts. CONSANGUINITY AND AFFINITY.--Marriage is prohibited between ascendants and descendants; between brothers and sisters of the whole or half blood; between uncles and nieces, or aunts and nephews, whether the relationship arises from legitimate or illegitimate birth, and between connections by marriage in the direct line. Marriage is also prohibited between adopting parents and adopted children. A widow, a divorced woman, or a woman whose marriage has been annulled cannot contract a new marriage within 300 days after the dissolution of the former marriage. When an absolute divorce has been decreed on the ground of adultery, attempt on life, cruelty, dishonourable treatment, sentence to an ignominious punishment, wilful desertion, or incurable mental disease, the guilty or losing party cannot enter into a new marriage until one year has elapsed from the date of the divorce. PRELIMINARY FORMALITIES.--Before the celebration, publication must be made in the district of birth and residence of both parties. Fourteen days after the formal publication of banns the registrar of the domicile of the intended husband delivers to the parties, provided no valid objection to the marriage has been served at the registrar's office, a certificate of publication, which permits the parties to be married in any place in Switzerland within six months from date of publication. CELEBRATION.--The marriage ceremony must be performed by a registrar. The civil ceremony must precede any religious celebration. The civil marriage before the registrar must be publicly performed in the presence of not less than two witnesses. ILLEGITIMATE CHILDREN.--Illegitimate children are legitimatized by the subsequent marriage of their parents. FOREIGN MARRIAGES.--A marriage contracted in a foreign country that is valid according to the laws of that country is valid in Switzerland. DIVORCE AND JUDICIAL SEPARATION.--Absolute divorce is granted for the following causes: 1. When both husband and wife consent to a divorcement and it appears to the court from facts presented that to keep the parties bound together by the marriage bond is incompatible with the true intention of marriage. 2. Adultery. However, six months must not have passed since the injured spouse obtained knowledge of the offence. 3. Attempt upon the life of either spouse. 4. Cruelty or dishonourable treatment. 5. Wilful desertion continued for two years, and the absentee has failed within six months to obey a judicial summons to return. 6. Incurable insanity or mental disease of three years' existence. 7. In the absence of the causes above set forth the courts have still power to grant either an absolute divorce or a judicial separation for not more than two years if it appears that the parties are grossly antagonistic to each other. If, upon petition, a judicial separation is granted and at its stated expiration no reconciliation has taken place, the court will entertain an application for an absolute divorce. EFFECTS OF DIVORCE.--The questions of property, alimony, custody of children and change of name are determined according to the laws of the individual cantons. Generally the guilty party must pay damages to the innocent spouse, either in one payment or by instalments, the amount depending upon the means of the parties and the nature and degree of the offence for which the divorce was granted. CHAPTER IX. GERMAN LAW. The German Empire consists of twenty-six political States. These include four kingdoms, six grandduchies, five duchies, seven principalities, three free towns, and Alsace-Lorraine. With the exception of Alsace-Lorraine, whose affairs are administered by the central imperial government, all are sovereign States. This individual sovereignty of a German State is somewhat analogous to that of a State in the American Union. However, we must for the purposes of this chapter notice one important difference. The legislative power of the central authority of the German Empire is not only exclusive on certain imperial matters, but its acts take precedence in such domestic concerns as domicile, judicial procedure, marriage and divorce, and the general rights of a German subject. The Constitution of the Empire (April 16, 1871) enumerates in detail the powers, limitations and relations of the different organs of government. From the _Germania_ of Tacitus and other authorities we learn that among the early Germans marriage was largely a matter of bargain and sale. In the presence of certain relatives or friends the father or guardian of a female delivered her to the bridegroom on receipt of the purchase price. Marriage by abduction was also recognized, but the abducter was obliged to make compensation to the abducted female's father or guardian, which compensation amounted in effect to an agreed purchase price. Although the consent of the female was never asked or considered on the question of marriage, we are told by Tacitus that German wives were remarkable for their fidelity and affection and were treated as friends by their husbands, who had a high respect for their judgment in all concerns of life. From the mediæval times Christianity has exercised a strong and correcting influence on the relation of marriage in Germany. At first the Christian Church recognized the informally declared agreement to marry on the part of the man and woman, which is called nowadays a betrothal, as all that was necessary to make them husband and wife. If the agreement referred to some future time, however, they were not considered as actually married until cohabitation had taken place. By the decrees of the Council of Trent, ratified in 1564, the Roman Catholic Church made it a requirement for the first time that in order to constitute a valid marriage the declarations of the couple must be made before a priest and witnesses. It was not until the eighteenth century that the Protestant Church in Germany adopted the rule that a marriage is not concluded simply by betrothal or mutual agreement, but requires a formal religious celebration. The _Personenstandsgesetz_, which became law on January 1, 1876, provided for the first time governmental regulation of marriage on a non-sectarian basis for the German Empire. It was not, however, until the enactment of the Civil Code that a clear and methodical statement of the law of marriage and divorce was given to the German people. The German Civil Code (_Bürgerliches Gesetzbuch für das Deutsche Reich_), which became law on January 1, 1900, has been described by Professor Maitland as "the most carefully considered statement of a nation's law that the world has ever seen." It is in the Fourth Book of this scientific codification, under the general title of Family Law, that we find the German statutes of to-day on marriage and divorce. A summary of these statutes follows: MARRIAGE.--Religious definitions, dogmas and obligations respecting marriage are not affected or considered by the German Code. Marriage is treated as a civil contract to which the State is always an added party. A legitimate child requires, before the completion of his twenty-first year, the approval of his father for concluding a marriage; an illegitimate child requires, before reaching maturity, the approval of the mother. A male reaches his majority at twenty-one years of age and a female at the completion of her sixteenth year, for the purpose of marriage. IMPEDIMENTS TO MARRIAGE.--A marriage cannot be concluded between relatives by blood in the direct line nor between brothers and sisters of full blood or half blood, nor between persons one of whom has had sexual intercourse with the parents, grandparents or descendants of the other. Persons in the military service, aliens and officials who by the law require special permission to become married cannot conclude a marriage without permission. FORM OF MARRIAGE.--A marriage is concluded by the parties appearing together and declaring before a registrar, in the presence of two witnesses, their intention to become husband and wife. VOIDABLE MARRIAGES.--A marriage may be avoided by a spouse who has been induced to enter the marriage status by fraud concerning such facts as would have deterred him or her from concluding the marriage had he or she been acquainted with the actual state of affairs. A marriage cannot be avoided on the ground of fraud or misrepresentation as to the pecuniary means of either party. HUSBAND AND WIFE.--The parties are mutually bound to live in conjugal community. The right to decide in all matters affecting the common conjugal life belongs to the husband. However, if the decision of the husband on these matters is an abuse and not a reasonable exercise of his right the wife is not bound to accept his decision. PROPERTY.--A wife has absolute power to deal with her separate property as if she were a single woman. A wife's separate property includes also that which she has acquired by her industry or in the course of a separate business conducted by her. It is presumed in favour of the husband's creditors that all chattels which are in the possession of either husband or wife, or in their joint possession, belong to the husband. In regard to articles intended exclusively for the personal use of the wife, such as clothing, ornaments and working implements, it is presumed that as between the spouses and the creditors of either that the articles are the property of the wife. MATRIMONIAL CONTRACTS.--Both spouses may regulate their property relation by a contract made before or after the marriage. DIVORCE.--Grounds or Causes. Either spouse may petition for divorce on the following grounds: A. Adultery of the other spouse; B. An attempt by one spouse to kill the other; C. Wilful desertion continued for the period of one year; D. Offences specified in Sections 171 to 175 inclusive, of the Criminal Code, including bigamy, incest and certain detestable crimes; E. Such a grave breach of marital duty or such dishonest or immoral conduct which disturbs the conjugal relation to such an extent that the petitioner cannot reasonably be expected to continue the relation; F. Insanity of the respondent continued for three years and of such a character that the intellectual community between the parties has ceased and there is no reasonable hope of its renewal. Petitions for divorce must be filed within six months of the time when the petitioner acquires knowledge of the facts constituting a sufficient ground. The petition cannot be allowed in any case if ten years have elapsed since the happening of the cause for divorce. After divorcement both parties are free to remarry. If a marriage is dissolved for any cause the decree shall declare the respondent to be the exclusive guilty party. PUNISHMENT FOR THE GUILTY.--Adultery is punishable by imprisonment with labour for a term not exceeding six months in the case of the guilty married person and the partner in guilt if the marriage is dissolved on the ground of adultery. Prosecution only takes place, however, on proposal--that is, at the instance of the aggrieved spouse. CONDONATION.--The right to a divorce is lost by condonation of the offence relied upon as a cause. If a marriage is dissolved for any cause the decree shall declare the respondents to be the exclusive guilty party. EFFECTS OF THE DIVORCE.--A divorced wife retains the surname of her husband unless specifically prohibited until she remarries. If she is the innocent party she may, upon making a declaration before competent authority, resume her maiden name. If she is the guilty party, her husband, by making a declaration before competent authority, may prohibit her calling herself by his surname. After she has thus lost the surname of her husband she, by operation of law, resumes her maiden name. MAINTENANCE.--A husband declared by a decree of divorce or judicial separation to be the guilty party shall provide maintenance to his divorced wife suitable to her station in life, in so far as she is unable to obtain such maintenance out of her earnings and income. A wife declared by decree to be the guilty party shall provide maintenance to her divorced husband suitable to his station in life, in so far as he is not able to so maintain himself. The maintenance above referred to shall be provided by a money annuity payable quarterly and in advance. In some cases the person bound to provide such maintenance is required to furnish a bond or security for the performance of the duty. For sufficient reason the person entitled to the payment of such a money annuity may demand a complete settlement in a lump sum. The duty to provide maintenance is extinguished on the remarriage of the party entitled to it or on the death of the party bound to make such provision. If a marriage has been dissolved on account of the insanity of one of the parties the same spouse shall provide maintenance to the unfortunate respondent. If the husband is bound to provide maintenance to a child of the marriage the wife is also bound to reasonably contribute toward such maintenance out of her income or earnings. JUDICIAL SEPARATION.--The same causes which are sufficient for a divorce will entitle the petitioner to a judicial separation if that form of relief is preferred. If such a judicial separation has been granted either spouse may apply for a divorce by virtue of the decree for separation, unless the conjugal community has been re-established after the issue of such decree. CHAPTER X. AUSTRIA-HUNGARY. The Austria-Hungary Empire comprises five countries, each bearing the name of kingdom--viz., Hungary, Bohemia, Galicia, Illyria and Dalmatia; one archduchy, Austria; one principality, Transylvania; one duchy, Styria; one margraviate, Moravia, and one county, Tyrol. In this chapter we shall deal with the marriage and divorce laws of Austria, leaving those of Hungary and Transylvania for the following chapter. The regulations governing the marriage relation in Austria and the other parts of the Empire represented in the Austrian Reichsrath are in general contained in the Austrian Civil Code, which became law on June 1, 1811, supplemented by later statutes, court decrees and ministerial edicts. Perhaps the most curious feature of Austrian law is that an absolute divorce can, for certain causes, be granted when both the parties are non-Catholic, but for Roman Catholics the bond of marriage is dissoluble only by the death of one party. DEFINITION OF MARRIAGE.--The Austrian Code defines marriage as follows: "The foundation of family relations is the marriage contract. In the marriage contract two persons of different sex legally declare their intention to live in inseparable union to beget children and to rear them up and to render each other mutual assistance." MARRIAGE QUALIFICATIONS.--1. There must be mental capacity. Insane, demented, imbecile parties or persons deprived of the free use of their minds by intoxication or any other cause cannot contract a binding marriage. 2. Minors must have completed their fourteenth year of age. 3. Minors of legitimate birth under 24 years of age require the consent of their parents or proper guardians. Illegitimate minors under 24 years of age require the consent not only of their legal guardians but also that of the court. 4. There must be free consent of both parties. 5. Physical capacity. Permanent and incurable impotence is an impediment to marriage. 6. Moral impediments. No person who has taken holy orders which involve a solemn vow to celibacy can contract a valid marriage. Marriages between Christians and Jews are forbidden. CONSANGUINITY AND AFFINITY.--Marriage is forbidden between ascendants and descendants, between full or half brothers and sisters, between first cousins and between uncles and nieces or aunts and nephews. The relationship may arise from legitimate or illegitimate birth. For Jews, however, the impediment of consanguinity extends no further in the collateral line than to marriage between brother and sister or between a woman and her nephew or grandnephew. A Roman Catholic is expressly forbidden to marry a divorced party until after the death of the latter's former consort. PRELIMINARIES.--A valid marriage can take place only after formal publication of the banns and the solemn declaration of consent. Banns are published by announcing the coming marriage together with the full names of both parties, their birthplace, status and residence, on three consecutive Sundays or holidays. In the case of Jews the banns must be published on three consecutive Saturdays or feast days. CELEBRATION.--The solemn declaration of consent must generally be given before the spiritual pastor of one of the parties or before his representative. Two witnesses are necessary. A civil marriage in which the solemn declaration of consent is given before the chief administrative official of the district, in the presence of two witnesses and a sworn secretary, is obligatory if neither party belongs to a legally recognized religious sect. FOREIGN MARRIAGES.--The marriage of an Austrian subject in a foreign country is treated as valid in Austria if the marriage was concluded according to the laws of such foreign country, and provided that such marriage was not in contravention of the Austrian law which accepts the Roman Catholic dogma of the indissolubility of marriage except by death of one of the parties. ILLEGITIMATE CHILDREN.--Such children are fully legitimatized by the subsequent marriage of their parents. ROMAN CATHOLICS.--As we have noted before between Roman Catholics the bond of marriage cannot be dissolved by divorce. This rule applies even if one of the parties is converted after marriage to a non-Catholic sect. The Austrian law provides a way by which some Roman Catholic marriages may be provisionally dissolved after what is termed a "legal declaration of death." If eighty years have elapsed since the birth of an absent spouse, and his or her place of residence has been unknown for ten years; if an absent spouse has not been heard from in thirty years; or if a spouse has been missing for three years, and was last heard of under circumstances leaving little doubt as to his or her death, then an action can be instituted to have the absentee legally declared to be dead. Such a declaration of death will legally dissolve the marriage, leaving the spouse of the missing party free to marry again. However, should the absentee spouse ever reappear, the declaration of death and the new marriage lose all legal effect. DIVORCE.--Non-Catholic Christians may obtain absolute divorce for the following causes: 1. Conviction of adultery, or of a crime the penalty for which could be a prison sentence of five years. 2. Malicious abandonment. 3. Severe cruelty. 4. Conduct endangering the life or health. 5. Invincible aversion on account of which both parties desire a divorce. This need not be a mutual aversion, but it must be shown to be actual and lasting. For this cause an absolute divorce is granted only after a temporary separation from bed and board has been decreed, and the parties appear to be irreconciliable. EFFECTS OF DIVORCE.--The woman retains the name of her husband, and both parties may remarry, with the exception that a guilty party may not marry his or her accomplice. The guilty party loses all rights and privileges in the property of the innocent party. As to the custody of children the court has authority to make such order as the facts and justice may require. JEWISH DIVORCES.--Jews in Austria may obtain absolute divorce under special regulations adapted from the Mosaic law and rabbinical jurisprudence. Marriage may be absolutely dissolved by means of a bill of divorcement given by the man to the woman, with the mutual agreement of both parties. This cannot take effect at once, but there must be three attempts at reconciliation, either by the rabbi or by the court, or by both. The Austrian law also permits a divorce among Jews for the proven adultery of the wife, in which case he can give her a bill of divorcement without her consent. A Jewish woman cannot obtain a divorce because of the adultery of her husband. JUDICIAL SEPARATION.--A judicial separation may be granted for the following causes: 1. By mutual consent. 2. Conviction of either spouse for adultery or a crime. 3. Malicious abandonment. 4. Conduct endangering the life or health of spouse seeking relief. 5. Incurable disease united with danger of contagion. 6. Cruel and abusive treatment. CHAPTER XI. HUNGARIAN MARRIAGE AND DIVORCE LAWS. In Hungary proper and Transylvania, together with Fiume and certain parts of the Military Boundary, the marriage law of 1894, supplemented by the Civil Registration Act of the same year, is in operation for all citizens, without regard to religious sect. In Croatia and Slavonia, which, although legally parts of the Kingdom of Hungary, are autonomous in domestic affairs; three separate systems of marriage regulation are in force governing, respectively, the Catholics, the Oriental Greeks, and the Protestants and Jews. HUNGARY PROPER AND TRANSYLVANIA.--Civil marriage is the only form recognized by law. MARRIAGE QUALIFICATIONS.--A man cannot marry before the conclusion of his eighteenth year; a woman, before the conclusion of her sixteenth year. A minor cannot conclude a marriage without the consent of his or her legal representative. IMPEDIMENTS.--1. Marriage is forbidden between ascendants and descendants. 2. Between brother and sister. 3. Between brother or sister and offspring of brother or sister. 4. Marriage between a person who has been previously married and a blood relative in direct line of that person's former consort is forbidden. 5. First cousins may not conclude marriage, except on dispensation from the Minister of Justice. 6. No person may conclude a marriage with any one who has been legally sentenced for a murder or a murderous assault committed on the former's consort, even if the sentence has not yet entered into effect. 7. No one may conclude a marriage without the consent of his ecclesiastical superiors if he has taken ecclesiastical orders or vows which, according to the law of the church to which he belongs, prevent his marrying. 8. So long as the guardianship continues, marriage is prohibited between a guardian or his offspring and the ward. PRELIMINARIES.--Before a marriage can be lawfully celebrated it must be preceded by the publication of banns. This publication must be made in the commune or communes where the parties ordinarily reside. Publication is made by posting an official notice for fourteen days in the office of the registrar and in a public place in the communal building. CELEBRATIONS.--Marriage is, as a rule, to be solemnized before the registrar of the district in which at least one of the parties has his or her residence or domicile. At the celebration of marriage the parties are obliged to appear together before the officiating magistrate, and in the presence of two competent witnesses declare that they conclude a marriage with each other. After such declaration the magistrate declares the couple to be legally married. The registrar is required by law to enter a record of the marriage on his official register and to give a formal marriage certificate to the parties. FOREIGN MARRIAGES.--In general, for a marriage contracted by a Hungarian citizen in a foreign country to be recognized as valid in Hungary, the parties to the marriage must satisfy the requirements of their respective States as to age and legal capacity and must be free from all other impediments contained in the law of either State. The Hungarian citizen must comply with the regulations of the Hungarian law regarding publication. Besides this, the foreign marriage must be concluded in accordance with all the requirements of the country where it was celebrated. ILLEGITIMATE CHILDREN.--If at the time such children were born the parents could legally have married each other then the subsequent marriage of the parents makes legitimate the children. ANNULMENT OF MARRIAGE.--Marriages may be annulled because of the violation of the various provisions of law regarding marriage impediments or the formalities necessary to conclude marriage. DIVORCE AND SEPARATION.--Marriage can be legally dissolved only by a judicial decree on certain grounds specified by law. These grounds are of two classes--absolute and relative. The following causes constitute absolute grounds for divorce: 1. Adultery. 2. Crime against nature. 3. Bigamy. 4. Wilful abandonment without just cause. 5. Attempt upon the life or wilful and serious maltreatment such as to endanger bodily safety or health. 6. Sentence to death or to at least five years in prison or the penitentiary. For all of the above causes the court must grant an absolute divorce if the allegations are proven. Divorce may also be granted on the following "relative grounds" if the court, after careful consideration of the individuality and characteristics of the parties, is satisfied that the facts warrant the desired relief: 1. Serious violation of marital duties. 2. Inducing, or attempting to induce, a child belonging to the family to commission of a criminal act or to an immoral manner of life. 3. Persistent immoral conduct. 4. Sentence to prison or the penitentiary for less than five years, or to jail for an offence involving dishonesty. JUDICIAL SEPARATION.--An action for separation from bed and board can be maintained on any of the grounds enumerated for divorce. EFFECTS OF DIVORCE OR SEPARATION.--After a divorce the guilty party is required to restore to the innocent party all gifts made by the latter before or during the marriage. The man who is declared guilty is obliged to maintain the innocent woman in a position in keeping with his estate and social position, in so far as her income is insufficient. Alimony is payable as a rule in advance monthly instalments. The right to alimony continues after the man's death, but on the application of his heirs it may be reduced to the amount of the net income of the estate. The right to alimony ceases if the woman marries again. Up to their seventh year minor children are entrusted to the care of the mother; after that time, to the innocent party. If both parties are guilty the father receives the custody of the boys and the mother that of the girls. The effects of separation are the same as those of divorce in reference to property, alimony and custody of children. FOREIGN DECREES.--In matrimonial causes where one or both of the parties is a Hungarian citizen the courts of Hungary do not recognize any foreign judgment or judicial decree. CHAPTER XII. SWEDEN. MARRIAGE.--Swedish law recognizes marriages which are to take effect in the future (_sponsalia de futuro_), and the existence of a betrothal that has been entered into in the presence of four witnesses and the woman's marriage guardian carries with it the obligation of a final fulfilment of the marriage promise, which under certain conditions is subject to enforcement by law. Thus, on the refusal of one of the affianced parties to proceed to the promised marriage, they can be proclaimed man and wife by judgment of the court, and the complainant has then the rights of a legally wedded person. This method of procedure is resorted to particularly if cohabitation has taken place subsequent to the betrothal, but in the absence of such cohabitation various causes can render the promise of marriage invalid. Diseases of a contagious or of an incurable nature, whether contracted before or after the marriage promise was given, insanity, ungovernable temper, licentiousness or other vices, and serious defects are sufficient impediments to the compulsory marriage of betrothed persons. A person who, under false pretenses, entices another to promise marriage, cannot demand the fulfilment of the promise and is even liable to punishment. A betrothal entered into through force or fear, or during a state of intoxication or temporary insanity, is not valid. IMPEDIMENTS TO MARRIAGE.-- 1. Lack of free consent. 2. Epilepsy. Sufferers from epilepsy (_epilepsia idiopathica_) are barred from marrying. 3. A heathen or a person who does not belong to any recognized religious creed cannot contract a lawful marriage. 4. Non-age. Marriage can be lawfully entered into by males 21 years of age and over and by females 17 years of age and over. A male Laplander, however, may marry when 17 years of age and a female when 15 years of age. A dispensation may be granted from the impediment of non-age, but such dispensation is not granted a male unless his marriage is approved by his parents or guardians and unless he is a person of good reputation and able to support a wife. CONSENT OF PARENTS.--A male requires the consent of no third party. Any female under 21 years of age requires the consent of her marriage guardian. CONSANGUINITY AND AFFINITY.--Marriage is prohibited between relatives by blood in the direct line or between two relatives by blood in the collateral line, one or both of whom are descended in the first degree from the common ancestor. Marriage is also prohibited between relatives by affinity in the direct line. In all cases relationship by illegitimate as well as legitimate birth is included. A divorced person who has been adjudged guilty of adultery cannot contract a new marriage without the consent of the innocent party, provided the latter is still living and has not remarried. Under no conditions can the guilty party marry his or her accomplice. No man or woman who is bound by a betrothal or by an undissolved marriage can marry a third person. A widower must not contract a new marriage within six months after the death of his wife, nor a widow within one year after the death of her husband. PRELIMINARIES.--On three successive Sundays or holy days previous to a wedding banns must be published from the pulpit of the State church in the parish in which the prospective bride resides. CELEBRATION.--The usual form of marriage is the religious ceremony. This alone is valid in case the man and woman belong to the same religious sect. An adherent of the State church who has never been baptized or who has never been prepared for the rite of the Lord's Supper has recourse only to a civil marriage. This is also the case in a marriage between a Christian and a Jew and in a marriage between parties who belong to a Christian church the clergy of which have not been granted the right to perform marriages. DIVORCE AND JUDICIAL SEPARATION.--Grounds for Judicial Divorce. An absolute divorce can be granted by court on the following grounds: 1. Adultery. 2. Illicit intercourse with a third party after betrothal. 3. Malicious desertion for at least one year, provided the absentee has left the Kingdom. 4. Absence without news for six years. 5. An attack on the life. 6. Life imprisonment. 7. Insanity of at least three years' duration and pronounced incurable by physicians. ROYAL PREROGATIVE.--All the grounds for divorce by royal prerogative are not definitely determined. The following alone are specifically mentioned in the law: 1. Judicial condemnation to death or to civil death, even if a royal pardon is granted. 2. Judicial condemnation for a gross offence or an offence incurring temporary loss of civil rights. 3. Judicial condemnation to imprisonment for at least two years. 4. Proof of prodigality, inebriety or a violent disposition. 5. Opposition of feeling or thought between the husband and wife which passes over into aversion and hate, provided that a separation from bed and board has been granted on this ground and lasted for a year without a reconciliation taking place during the interval. LIMITATIONS TO RIGHT OF ACTION.--Collusion, connivance, condonation or recrimination extinguishes the right to a divorce. In a case of adultery divorce will be granted only if the innocent spouse has instituted proceedings within six months after obtaining knowledge of the offence, has not condoned it by cohabitation or otherwise and has not been guilty of a similar offence. If the insanity of the defendant in a divorce suit has been caused, or even accelerated by the cruel treatment of the complainant, divorce will be refused. PROCEDURE.--In a case of desertion, if the whereabouts of the guilty party is unknown, the court, by means of publication in all the pulpits of the district, orders him to return within a year and a day. If he does not present himself within the time mentioned the judge pronounces the divorce. Where the ground is insanity the judge must give a hearing to the nearest relatives of the afflicted party and investigate carefully the married life of the couple, in order to learn whether the insanity was caused or even accelerated by the plaintiff. The State's attorney is not authorized to interfere in a suit for divorce, nor are attempts at reconciliation required. The court can, however, advise a reconciliation, with or without the adjournment of the case. JUDICIAL SEPARATION.--This is often only the preliminary to an absolute divorce. It can be granted when hate and violent anger arise between husband and wife and one of them reports the matter to the rector of the parish. It is the duty of the rector to admonish the couple. If they do not become reconciled they are to be further admonished by the consistory. If this admonition also proves fruitless the court grants a separation from bed and board for one year. The law provides also that this procedure may be followed in cases of malicious desertion, where the guilty party remains in the country or where one party drives the other from home. CHAPTER XIII. DENMARK. Justice is administered in Denmark in the first instance by the judges of the hundreds in the rural communities and by the city magistrates in the urban districts. Appeals from such courts lie to the superior courts of Copenhagen and Viborg, and in the last resort to the Supreme Court, which consists of a bench of twenty-four judges, at Copenhagen. Denmark was one of the first countries in Europe in which the government established any regulation or control over matrimonial affairs. The body of the law on marriage and divorce is found to-day in the Code of Christian the Fifth (1683), as modified and modernized, and such customs and precedents of the Danish people as the courts accept as binding. BETROTHAL.--A betrothal or engagement to marry carries with it no legal obligation. The courts of Denmark do not recognize the breach of a promise to marry as constituting a legal cause of action. If, however, a woman, on promise of marriage, permits sexual intercourse, she can sue to have the marriage specifically performed, provided the man is at least 25 years of age and the woman herself is of good reputation and neither a widow nor a domestic servant who has become pregnant by her employer or one of his relatives. In addition, the betrothal must either have been public or capable of easy proof. QUALIFICATIONS FOR MARRIAGE.--A male cannot legally conclude marriage before the completion of his twentieth year. A female must have completed her sixteenth year. The King may grant a dispensation permitting parties of less age to marry. Males and females are minors until the completion of their twenty-fifth year, and during minority cannot conclude marriage without the consent of their parents or guardians. If the necessary consent is withheld without just cause the authorities can furnish the desired permission. IMPEDIMENTS.--Marriage is prohibited between relatives in the direct line, whether by blood or marriage, and between brothers and sisters of the whole or half blood. The royal dispensation is required for marriage between a man and his brother's widow, his aunt, great-aunt or any feminine relative nearer of kin to the common ancestor than the man himself. Persons convicted of having committed adultery with each other may not marry without having first obtained permission of the civil authorities. Persons divorced by extra-judicial decree are not allowed to contract a new marriage, without permission to this effect is given in the decree. The law prescribes a mourning period of one year for a widow and three months for a widower, during which time they are not allowed to contract a new marriage; but under special conditions the mourning period may be shortened. PRELIMINARY FORMALITIES.--If the marriage is solemnized before a clergyman banns must be published from the pulpit for three consecutive Sundays, and the marriage must follow within three months. In case of a civil marriage one publication must be made by the authorities at least three weeks and not more than three months before the celebration. CELEBRATION.--The national church of Denmark is the Lutheran, and in the case of Protestant Christians a religious marriage must be solemnized before a clergyman of the Lutheran Church. Civil marriages performed at the courthouse by a magistrate are permitted when the bride and groom are of different religious faith or when neither of them belong to any recognized religious sect. ILLEGITIMATE CHILDREN.--Subsequent marriage of the parents legitimatizes a child born out of wedlock. ANNULMENT OF MARRIAGE.--A marriage may be annulled at the instance of one of the parties for the following causes: 1. Want of free consent by one or both parties. 2. If one of the parties at the time of the marriage was impotent and this fact was unknown to the other. This impotence must, however, be incurable and continue for three years. 3. If one of the parties was at the time of the marriage afflicted with leprosy, syphilis, epilepsy or a contagious and loathsome disease, and this fact was concealed and unknown to the other party. The disease must be incurable. DIVORCE.--An absolute divorce upon proper grounds may be obtained by means of a judicial decree, royal authorization given to the higher civil authorities, authorization from the Minister of Justice, or a special royal decree. The causes for an absolute divorce are: 1. The last two causes mentioned above as sufficient for an annulment. 2. Adultery. 3. Bigamy. 4. Wilful abandonment. 5. Absence for five years or more under circumstances leading a reasonable person to conclude that the absentee is dead. Exile or deportation from the country for at least seven years. 6. Imprisonment for life, if pardon or liberty is not given within seven years. EXTRA-JUDICIAL DIVORCE.--The Mayor of Copenhagen and the superior magistrate outside of Copenhagen--called the higher civil authorities--may give a royal authorization for a divorce in cases where the parties have lived apart for three years in consequence of a separation decree, and both parties ask for divorcement. The Minister of Justice has also authority in some instances to grant decrees of absolute divorce. The conditions under which a divorce can be granted by special royal decree are not specifically defined, but the decree is seldom granted except for substantial reasons and according to precedent. SEPARATION.--Decrees of separation from bed and board may be obtained upon mutual consent of the parties or if good reason exists upon the petition of one of the parties. EFFECTS OF DIVORCE.--Usually in the absence of an agreement between the parties each party receives one-half of the property which during the marriage relation was held in common. The duty of mutual support and assistance ends, but sometimes the man is directed to pay alimony to the woman. The innocent party is generally given custody and control of the children of the marriage, but the courts favour an agreement between the parties on this subject. Unless the decree of divorce has been brought about by her guilt a divorced wife is permitted to retain the name and rank of her divorced husband. CHAPTER XIV. THE NORWEGIAN LAW. In many respects the laws of marriage and divorce in Norway resemble those of Denmark. There are, of course, historical and political reasons for the resemblance. MARRIAGE.--The law of Norway fixes 20 years as the minimum marriageable age for a man and 16 years for a woman. These provisions are often interpreted, however, by the courts, as having reference to the age of puberty, and as this age varies with different persons the law is not always followed literally, particularly as regards the marriageable age of a woman. Neither male nor female under the age of 18 years is allowed to marry without the consent of parents or guardians. The validity of an objection to the marriage on the part of parents or guardians can be tested in court, and although causes for such objections are not specified or limited by statute they are kept within reasonable grounds through long-established precedent. IMPEDIMENTS TO MARRIAGE.--No man or woman may marry a relative by blood in the direct line. No man can many his full or half sister. Persons convicted of having committed adultery with each other may not marry without first obtaining permission of the civil authorities. A person bound by a marriage not dissolved through natural or legal causes is not allowed to enter into any other matrimonial alliance. After the death of her husband a widow must wait nine months before she can contract a new marriage, but this waiting period can be shortened by dispensation, especially if she proves that she is not pregnant. PRELIMINARIES.--In case of religious marriage one publication of banns is sufficient, and even this can be dispensed with in some instances. For a civil marriage no publication of banns is required. CELEBRATION.--Marriages must be solemnized before a minister of the Lutheran Church or by some person authorized by the State to officiate, and in the presence of two competent witnesses. The wedding celebration may take place either in church or in a private house. All notaries have legal authority to perform civil marriages, but only between persons at least one of whom does not belong to the State church. ANNULMENT OF MARRIAGE.--Nullity is of two kinds--absolute and relative. In the case of the latter the marriage is considered as valid until declared otherwise, generally on the application of one of the parties. A marriage is absolutely null if at its celebration there was no declaration of the clergyman or of the civil official that the couple were man and wife, or if proof exists of bigamy or of relationship within the prohibited degrees. DIVORCE AND SEPARATION.--An absolute divorce may be obtained for sufficient cause either by royal decree or by judicial determination. The most usual form is by royal decree, which is granted in the following cases: 1. When one at least of the causes prescribed by law is proven. 2. After a separation from bed and board has lasted three years. In such a case the royal decree is granted either on the petition of both parties, or, if circumstances justify, on the petition of one of the parties. 3. It may be granted by royal decree without any preceding separation. This form of divorce is granted either when legal cause for divorce exists or when the ground is otherwise considered sufficient. A judicial decree of absolute divorce is obtainable for the following causes: 1. Adultery. 2. Bigamy. 3. Wilful desertion for at least three years. 4. Assault and cruel treatment endangering the life of the complainant. 5. Absence for seven years, especially if no information has been received of the absentee during that period. If the facts as shown leave little or no doubt as to the death of the absent party, a divorce can be granted after three years' absence. 6. Imprisonment for life, after the innocent party has waited seven years. In addition to these grounds a divorce by royal decree can be obtained when one of the parties has become incurably insane or has been sentenced to prison for at least three years; or when the parties, by mutual agreement, have lived entirely apart for fully six years, and the facts show that domestic peace and the well-being of the parties are not promoted by their continuing as husband and wife. LIMITATIONS.--If the act complained of was committed by the consent or procurement of the complainant, or if the latter has voluntarily cohabited with the offender after discovery of his or her guilt, or if the complainant has been guilty of a similar offence, divorce will be refused. EFFECTS OF DIVORCEMENT.--Each of the parties receives one-half of the common property, but agreements are permitted by which the man retains all such property on condition of paying the woman an annual allowance. The duty of mutual assistance ceases, although if justice demands the man may be ordered to pay alimony to the woman. The Norwegian law contains no hard-and-fast rule as to the custody of the children of divorced parents. When no agreement exists between the parties the innocent party is generally given custody of all the children. A woman who obtains a decree of divorce against her husband is allowed to retain the name and rank of her ex-husband. SEPARATION.--A separation from bed and board may be granted either on the mutual consent of both parties, or by royal decree on the petition of one of the parties if reasonable grounds exist. CHAPTER XV. THE RUSSIAN EMPIRE. There have always been plenty of laws in Russia, the chief difficulty being not with the quantity but the quality. Another perplexing feature of Muscovite laws is the uncertainty of this patchwork of royal decrees, undefined traditions, changing customs and priestly superstitions. If Peter the Great had lived long enough he would probably have given Russia a regular code such as Napoleon bequeathed to France, but he was too busy during his career with wars, travels and social reforms. The Emperor Nicholas I. is entitled to the credit of being the first Russian sovereign to direct the compilation of anything approaching a classified legal code, and under his authority the jurist Speransky collected together some forty volumes. This code, as revised from time to time, is the best exposition obtainable of the law of the Empire. Its first article, however, qualifies the entire code by recognizing the Tsar's privilege of altering or setting aside any law of the realm at will. Until recently the first lesson for the Russian law student to learn was expressed in the doctrine: _Quod principi placuit, legis habet vigorem_. "The sovereign's pleasure has the force of law." Many reforms have of late years been worked in Russian law and judicial procedure, but in these matters Russia is still a long way off from justifying the belief expressed by Count Mouravieff, that this country has a civilizing mission such as no other nation of the world, not only in Asia, but also in Europe. Such benefits as can be derived from the law are still more for the privileged classes than for the great body of the people, and the point has not yet been reached of substituting judicial trials for ecclesiastical in matrimonial causes. The regulations concerning marriage and divorce fall within the province of the clergy and the ecclesiastical courts, except that the civil tribunals have jurisdiction over annulment and divorce for the _Raskolniken_, or "Old Believers," and for the Baptists and some other dissenters from the State Church of Russia. With the exceptions noted, the regulations of each form of religious belief, including Mohammedanism and other non-Christian beliefs, are endorsed by the State as the law for the adherents of that belief. The civil courts, however, have jurisdiction over the civil effects of marriage and divorce, and the State law contains certain provisions binding on the adherents of all religious confessions. The regulations governing the Roman Catholics are, in general, those of the canon law and those governing the German Lutherans are those of the old Protestant common law of Germany. We shall consider the special regulations affecting the Jews in a separate division of this chapter. MARRIAGE.--A man reaches marriageable age upon the completion of his eighteenth year and a woman upon the completion of her sixteenth year; natives of Transcaucasia, however, may marry at the completion of the fifteenth and thirteenth years, respectively. A marriage cannot take place without the free and mutual consent of the principals. The exercise of any kind of compulsion is forbidden to parents or guardians. Without regard to their age children require the consent of their parents. In most parts of Russia there is no appeal in case a parent withholds consent. Marriage without parental consent is not invalid, but the guilty person is liable to a penalty of from four to eight months' imprisonment, on petition of the parent, and to the loss of his right of inheritance in the property of the parent. Persons who are under guardianship or curatorship require the consent of their guardian or curator. CONSANGUINITY AND AFFINITY.--The prohibited degrees of consanguinity are determined according to the principles of the religious body to which the parties belong. Marriage is, however, universally prohibited between persons who are related in the first or second degree. DIFFERENCE OF RELIGION.--Marriage between Christians and non-Christians is prohibited, except between Lutherans, adherents of the Reformed Church, and other Protestants on the one hand, and Jews and Mohammedans on the other. INSANITY.--Marriage is absolutely prohibited to insane persons. OFFICIAL PERMISSION.--Civil officials require the consent of their superiors in order to marry. HOLY ORDERS.--Marriage is prohibited to the clergy of the State Church, but if a secular priest is already married before ordination he may continue in that relation. The practice is for the majority of men who intend to enter the secular priesthood to marry before ordination. ADVANCED AGE.--Persons who have attained the age of eighty years may not marry. FOURTH MARRIAGE.--The contracting of a fourth marriage is unconditionally forbidden. PRELIMINARY FORMALITIES.--A male member of the Russian Church, or an "Old Believer," who intends marriage, must, from one to three weeks before the date of celebration, announce the fact to the clergyman in whose parish he resides, and bring to him the certificates of baptism of himself and his intended bride, certificates of their social status, proofs of identity and a certificate that both parties have been to confession and received holy communion. With these documents and proofs at hand the clergyman announces the names of the betrothed parties on three successive Sundays or feast days. The marriage cannot be concluded without a certificate showing that all the formalities have been complied with. CELEBRATION.--A marriage may be solemnized in accordance with the rules of the religious sect of the parties, before one of its clergymen, with the personal participation of the contracting parties and in the presence of competent witnesses. For members of the Russian Church the solemn betrothal, which formerly took place some time previous to the marriage, now introduces the wedding ceremony. The latter must follow the prescribed ritual exactly. The wedding must take place in church, during the daytime, before adult witnesses, and the contracting parties must be actually present. ILLEGITIMATE CHILDREN.--The subsequent marriage of the parents does not in itself legitimatize such offspring. After their marriage the parents must petition the court for an order of legitimacy. ANNULMENT OF MARRIAGE.--Any marriage is null that was not solemnized by a clergyman of the religious sect of which one of the contracting parties is an adherent, except those solemnized before a priest of the Russian Church, because of the absence of a clergyman of the proper religious sect. A marriage is also null in case of bigamy, difference of religion and violation of the rules concerning consanguinity and affinity. DIVORCE.--It is impossible for an adherent of the Russian Church or for an "Old Believer" to obtain a decree of absolute divorce. The grounds for an absolute divorce for other persons except Jews are: 1. Adultery. 2. Bigamy. 3. Impotence existing at time of marriage. 4. Absence without news for five years. 5. Condemnation to the loss of all civil rights. 6. Banishment to Siberia with the loss of all special rights. Either party may petition for divorce on this ground. 7. Entrance of both spouses into a religious order, provided they have no children who need their support and care. 8. Conversion of a non-Christian to the Russian Church, provided he or his consort desires such divorcement. PROCEDURE.--In the case of a Christian who is not an "Old Believer" or a member of the Russian Church, the petition for divorce is filed in the ecclesiastical court. After this the bishop designates a clergyman, who is to make an attempt to reconcile the parties. Not until this attempt has failed is notice served on the defendant and the day set for a hearing of the cause. If the court decides in favour of a divorce, the decree must be submitted to the Synod for revision. In case of condemnation to the loss of civil rights, a divorce is granted immediately. If the ground relied on is the conversion of a non-Christian to the Russian Church, the divorce is granted merely on the formal declaration of one of the spouses that he or she does not wish to continue the marriage. EFFECTS OF DIVORCE.--The adjustment of the personal and property rights and the custody of the children are matters entirely for the discretion of the tribunal. LAW FOR LUTHERANS.--Members of the Lutheran Church outside of Finland are governed by special regulations concerning the grounds for divorce. These grounds are: 1. Adultery. 2. Unlawful relation with a third party before the marriage, though in the case of the husband only such relations subsequent to the betrothal are considered. 3. Wilful refusal of one party to live with the other. 4. Unjustified absence for two years without news. 5. Absence for five years. 6. Unjustified refusal to perform the marital duty for at least one year. 7. Wilful prevention of conception. 8. Impotence existing at time of marriage. 9. Incurable or loathsome disease existing at time of marriage and concealed from the other party. 10. Incurable insanity. 11. Vicious conduct. 12. Cruel and abusive treatment. 13. Design of one spouse to bring dishonour on the other. 14. Infamous crime. FINLAND.--In this country marriage between Christian and non-Christian, and the marriage of a Lutheran who has not yet been admitted to the rite of holy communion, are prohibited. In case of seduction marriage is prohibited unless the consent of the parents or of the court is obtained. Divorce is permitted in Finland for the following causes: 1. Adultery. 2. Illicit intercourse with a third party after betrothal. 3. Malicious desertion for one year. By petition to the Department of Justice of the Imperial Senate a Finn can obtain, for sufficient cause, a divorce on other grounds. RIGHTS OF MARRIED WOMEN.--When we come to consider the rights, or rather, the lack of rights, of married women in the Muscovite Empire we must remember that Russia is only geographically in Europe, and only nominally a Christian State. It is a country standing alone on the map of the world, five centuries behind in civilization what is really Europe. Although among the so-called higher classes woman is often treated socially--not legally--as the equal of her husband, among the great bulk of the population she has little more status than that of a domestic animal. There is no other country on earth pretending to be civilized where a woman, single or married, has so few rights recognized by the State or the national church. A married woman in Russia owns nothing. It is all her husband's. She is, however, allowed the privilege of saving up a little hoard of her own on the flax or wool out of which she makes the clothing for her husband and children. This little hoard is called her _korobka_, and upon her death it goes to her children. If she dies childless it goes to her mother, and if her mother is also dead it goes to her single sisters. Such a _korobka_, when accumulated by a single woman from her earnings, is considered as a dowry upon marriage, and it is generally applied by the bridegroom to pay the wedding expenses. Count Mouravieff could not have been thinking of woman's place in his native land when he said: "We Russians bear upon our shoulders the New Age; we come to relieve the tired men." It is our opinion that the nation which is most likely to bear upon the shoulders of its people the New Age is the country which treats its womankind the best. SPECIAL LAWS FOR JEWS.--The law of marriage and divorce which governs the Jews of Russia differs in many particulars from the rules applicable to adherents of other sects. This special set of regulations comes from the people of Israel themselves and is an outgrowth of the ancient Mosaic code of jurisprudence. In thus permitting the Jews to have a body of rules founded on the ancient precedents of their race and in agreement with their consciences we find at least one attitude of wise tolerance for which the Russian Empire is entitled to credit. BETROTHAL.--A Jewish betrothal must take place in the presence of two competent witnesses. The consent of the parents of either party is not required. Like marriage the betrothal can be dissolved only by death or by divorce. It obligates the parties to marry within thirty days from the date on which either demands marriage. A betrothal may be dissolved on the following grounds: A. Evil conduct. B. Change of religion. C. Insanity. D. Unchastity of either party or of one of his or her near relatives. E. By the man entering a dishonest occupation. IMPEDIMENTS.--Besides the impediments which prevent certain people of other sects from lawfully concluding marriage there are other impediments specially applicable to Jewish people. Briefly enumerated they are as follows: 1. A woman guilty of adultery, or even of secret association, with a man against her husband's will cannot marry her accomplice. 2. A marriage between a Jew and an idolator is forbidden. 3. If a woman's husband has died childless, and is survived by a brother, she can marry no one else than this brother until the latter has declined marriage with her in the prescribed form. 4. After the death of near relatives a marriage may not take place within thirty days. 5. A widow or divorced woman may not contract a new marriage within ninety days from the dissolution of her earlier marriage. 6. A pregnant woman may not marry before her delivery. 7. A widower may not marry before three feast days have passed since the death of his wife, but in case he is childless or his children require a mother's care he may marry after seven days. DIVORCE.--The Jewish law makes no distinction between divorce and annulment. The grounds for divorce are as follows: 1. Bigamy. 2. Difference of religion. 3. Relationship in the first degree in the direct line, by blood or marriage. No legal action is necessary for these three causes. 4. Adultery. 5. Leprosy of the husband. 6. Mutual consent of the parties. 7. Such conduct on the part of the wife as raises a reasonable suspicion of her adultery. 8. The cursing by the wife of her father-in-law in her husband's presence. 9. Wife's desertion of husband. 10. Wife's refusal for one year to perform marital duty. 11. Husband's cruelty to wife. 12. Husband's apostasy from the Jewish religion. 13. When the husband is a fugitive from justice. 14. Neglect of husband to support his wife. 15. Persistent vicious and disorderly manner of life on part of the husband. 16. Husband's admission that he is incurably impotent. 17. The contraction by the husband of a loathsome disease. 18. The adoption by the husband of a dishonest or disgusting occupation. 19. Such conduct on the part of the wife as causes her husband, without deliberation, to violate the ritualistic requirements of the Jewish religion. PROCEDURE.--The rabbi is the judge in the first instance of a divorce petition. Appeal from his decision lies to the civil authorities. In the ordinary divorce case the first action by the rabbi is an attempt to reconcile the parties. A confession of the guilty party is competent evidence. The divorce becomes effective by the man delivering to the wife, after the rabbinical decision, a bill of divorcement. This is done even if the wife is the successful suitor. The husband can be compelled to make such a delivery. EFFECTS OF DIVORCE.--The dowry (_Nedunya_), which was settled on the wife at the time of the marriage, must be returned to her if she is the innocent party. The woman retains the name of her divorced husband. Both parties are free to marry again. CHAPTER XVI. HOLLAND. MARRIAGE.--A male must be eighteen years or more and a female sixteen years or more in order to be lawfully married. Marriage is forbidden between all descendants and ascendants, legitimate or otherwise, and in the collateral line marriages are forbidden between brothers and sisters of the whole or half blood, legitimate or illegitimate. Marriage is also forbidden in Holland between brothers-in-law and sisters-in-law, between uncle and niece, or granduncle and grandniece, and between aunt and nephew, grandaunt and grandnephew, legitimate or otherwise. The Queen has power under the law to grant a dispensation for good reasons relieving any couple from the effect of such prohibitions. She has also power, for sufficient cause, to permit persons under age to contract marriage. As a preliminary to marriage children must ask the consent thereto of their parents, but the consent of the father is sufficient. If the father is dead the consent of the mother suffices. If the mother and father are both dead the grandparents take their places. Marriage is treated in Holland as a civil contract. CELEBRATION.--The ceremony of marriage must take place publicly in the town hall before a registrar, but not until three days after the publication of banns. Four male witnesses of full age must be present. If one of the parties is unable to attend the town hall the marriage may be solemnized in a private house, but in such a case six male witnesses of full age are necessary. A religious celebration of the marriage cannot be performed until the officiating clergyman is shown proof that the civil marriage has already taken place. FOREIGN MARRIAGE.--A marriage concluded in a foreign country between two Hollanders, or between a Hollander and a foreigner, is recognized as valid in Holland if celebrated according to the requirements of the foreign country, and provided the banns were duly published, without opposition, in the place or places of residence in Holland of the contracting parties, and provided such marriage is not in contravention of the law of Holland. ANNULMENT OF MARRIAGE.--A marriage may be judiciously annulled on the following grounds: 1. Previous existing marriage of one of the parties. 2. Want of free consent on the part of one or both of the parties. 3. Mistake as to identity of person. 4. Insanity or deficient mentality of one or both parties. 5. Lack of marriageable age. 6. Relationship within prohibited degrees. 7. Marriage with an accomplice in adultery. 8. Absence of requisite number of witnesses. 9. Marriage in spite of an objection raised on publication of the banns, in case the objection proves to be well founded. 10. Marriage in violation of any other legal requirement. DIVORCE.--In Holland a marriage can be dissolved in one of four different ways: 1. By death of one of the parties. 2. By the absence of one of the spouses for the period of ten years or more, coupled with the remarriage of the other spouse. 3. By a divorce pronounced after a judicial separation has been obtained by one of the spouses. 4. By a divorce pronounced in the first instance for one of the causes hereinafter stated. The causes for an absolute divorce are: 1. Adultery. 2. Malicious abandonment continued for five years. 3. Judicial condemnation of one of the spouses to prison for an infamous offence. 4. Grave bodily harm inflicted by one spouse upon the other. PROCEDURE.--The action for divorce must be instituted before the judge of the district where the husband is domiciled, except when the cause alleged is malicious abandonment, in which case the suit must be brought before the judge of the district in which both parties had their last common domicile. Before filing the formal petition the complainant must personally attend before the district judge and state the facts, after which it is the duty of the judge to attempt a reconciliation of the parties. The complainant must appear without counsel or relatives. The judge next orders both parties to appear before him without counsel or relatives in the further endeavour to effect a reconciliation. If a reconciliation appears to be impossible the formal petition for divorce is then filed with the court. All suits for divorce are heard _in camera_, and the public prosecutor must attend. EFFECTS OF DIVORCE.--In so far as the innocent party is not able to support himself or herself out of his or her income the guilty party is bound, if able, to provide support. Except when it appears to the court that justice otherwise requires, the custody of the children is given to the successful suitor. The innocent party retains all gifts made to him or her by the other and the guilty party loses them all. Both parties are free to contract a new marriage. JUDICIAL SEPARATION.--A separation from bed and board may be granted on the same grounds as entitle a party to an absolute divorce. Such a separation may also be judicially granted by consent of both spouses. After a judicial separation has existed for five years either of the parties may petition the court to enlarge the decree of separation into a decree of absolute divorce. CHAPTER XVII. THE JAPANESE CIVIL CODE. The East and the West, the Past and the Present, meet in the Japanese Civil Code, which became law in January, 1893. It is the first codification of private law that Japan ever had in her long history. Up to that time the basis of Japanese laws and institutions was Chinese moral philosophy, ancestor worship and the old feudal system. The Criminal Code of Japan (_Shin-ritsu-koryo_), enacted in 1870, was the last legal code founded on Chinese philosophy, customs and traditions, and the Revised Criminal Code (_Kaitei-Ritsurei_) is the first group of Japanese laws based upon European jurisprudence and civilization. Three periods may be marked in the history of Japan with regard to the legal aspect of the marriage relation. The first was the ancient Japanese period, the second the Chinese period, and the third, the present, that of modern Japan. The Chinese doctrine of the perpetual obedience of woman to man is expressed in the "Three Obediences": Obedience, while yet unmarried, to the father; obedience, when married, to the husband; obedience, when widowed, to the son. Buddhism regards woman as an unclean creature, a temptation, and an obstacle to peace and holiness. The great revolution in the legal position of woman in Japan which the new Civil Code has brought about is as impressive as all the other changes for the better which have of late years taken place in the land of the Cherry Blossoms. The Chinese and Buddhistic theories concerning womankind have but little influence on modern Japanese law. Under the Civil Code husband and wife are now on an equal footing, except when consideration for their common domestic life requires some modifications. Persons who are about to marry are permitted to make any contract with regard to their individual property, and a woman is capable of owning and controlling her separate property all during marriage. When Japanese law belonged to the Chinese system of jurisprudence there were seven causes for divorce, namely: 1. Sterility. 2. Lewdness. 3. Disobedience to father-in-law or mother-in-law. 4. Loquacity. 5. Larceny. 6. Jealousy. 7. Bad disease. As under the Mosaic law, these causes were invented only for the advantage of the husband. A wife had no right even to desire a divorce from her husband. An examination of the seven causes shows that a woman could be divorced practically at her husband's pleasure. The New Civil Code has changed all this. A wife has equal rights with her husband to the benefits of the divorce law. The New Civil Code of Japan is divided into five books, but it is only with Book IV., which deals with the "Family," that we are at present concerned. A summary of the present marriage and divorce law of Japan, as translated from Book IV., follows: REQUISITES OF MARRIAGE.--A man cannot marry before the completion of his seventeenth year or a woman before the completion of her fifteenth year. A person already married cannot contract another marriage. A woman cannot contract another marriage within six months from the dissolution or cancellation of her former marriage. If a woman is pregnant at the time of the dissolution or cancellation of her former marriage this provision does not apply after the day of her delivery. A person who is judicially divorced or punished because of adultery cannot contract a marriage with the other party to the adultery. Lineal relatives by blood or collateral relatives by blood up to the third degree cannot intermarry; but this does not apply as between an adopted child and his collateral relatives by adoption. Lineal relatives by affinity cannot intermarry. This applies even after the relationship by affinity has ceased because of marriage or divorce. An adopted child, his or her husband or wife, his descendants and the husband or wife of one of his descendants on the one hand, and the adopter and his ascendants on the other hand, cannot intermarry, even after the relationship has ceased. For contracting a marriage a child must have the consent of his parents, being in the same house. This, however, does not apply if the man has completed his thirtieth year or the woman her twenty-fifth year. If one of the parents is unknown, is dead, has quit the house, or is unable to express consent, the consent of the other parent is sufficient. If both parents are unknown, dead, have quit the house, or are unable to express consent, a minor must obtain the consent of his guardian and of the family council. This by way of parenthesis: The members of a house comprise such relatives of the head of the house as are in his house and the husbands and wives of such relatives. The head and the members of a house bear the name of the house. The head of the house is bound to support its members. A marriage takes effect upon its notification to the registrar. A wedding ceremony is not legally essential. The notification of marriage must be made by the parties concerned and at least two witnesses of full age, either orally or by a signed document. If a Japanese couple in a foreign country contract a marriage between themselves they may give the notification of their marriage to the Japanese minister or consul stationed in such country. EFFECT OF MARRIAGE.--By marriage the wife enters the house of the husband. A man who marries a woman who is head of a house, or a _mukoyoshi_, enters the house of his wife. A _mukoyoshi_ is a person who is adopted by another and at the same time marries the daughter of the house who would be the heir to the headship of the house. A wife is bound to live with her husband. A husband must permit his wife to live with him. A husband and wife are bound to support each other. When the wife is a minor the husband, if of full age, exercises the functions of a guardian. A contract made between husband and wife may be cancelled at any time during the marriage by either party, but without prejudice to the rights of third persons. DIVORCE BY MUTUAL CONSENT.--The husband and wife may effect a divorce by mutual consent. No court procedure is necessary. Just as in giving notice of marriage, the parties consenting to be divorced give notice of such agreement to the registrar, and they are _ipso facto_ divorced. A person who has not reached the age of twenty-five years, in order to effect a divorce by mutual consent, must obtain the consent of the person or persons whose consent was necessary for the marriage. If a husband and wife have effected a divorce by mutual consent without arranging as to whom the custody of the children shall belong, it belongs to the husband. JUDICIAL DIVORCE.--A husband or wife, as the case may be, can bring an action for divorce for the following causes: 1. If the other party contracts a second marriage. 2. If the wife commits adultery. 3. If the husband is sentenced to punishment for an offence specified in Article 348 _et seq._ of the Criminal Code; such offences involving criminal carnal sexuality. 4. If the other party is sentenced to punishment for an offence greater than misdemeanor, involving forgery, bribery, gross sexual immorality, theft, robbery, obtaining property by false pretences, embezzlement of goods deposited, receiving knowingly stolen goods, or any of the offences specified in Articles 175 and 260 of the Criminal Code, or is sentenced to a major imprisonment or more. 5. If one party is so ill-treated or grossly insulted by the other that it makes further living together of the spouses impracticable. 6. If one party is deserted by the other. 7. If one party is ill-treated or grossly insulted by an ascendant of the other party. 8. If an ascendant of one party is ill-treated or grossly insulted by the other party. 9. If it has been uncertain for three years or more whether or not the other party is alive or dead. 10. In the case of the adoption of a _mukoyoshi_, if the adoption is dissolved, or in the case of a marriage of an adopted son with a daughter of the house, if the adoption is dissolved or cancelled. CHAPTER XVIII. SPAIN. Spain is a constitutional and hereditary monarchy, the powers of which are defined by the fundamental law of June 30, 1876. The legislative authority is exercised by the sovereign in conjunction with a parliamentary body called the Cortes, which is composed of two houses, a Senate and a Chamber of Deputies. Spanish law is founded on the Roman law, the Gothic common law, the National Code of 1501, and the Civil Code of 1888, with its subsequent amendments and additions. Spanish law is binding in the Spanish Peninsula and adjacent islands, the Canary Islands and such African territory as is subject to Spain. MARRIAGE.--The law recognizes two forms of marriage: the canonical, which all who profess the Catholic religion should contract; and the civil, which must be celebrated in the manner hereinafter stated. Marriage is forbidden to: 1. Minors who have not obtained parental consent. 2. To a widow, during the three hundred and one days following the death of her husband or before childbirth, if she has been left pregnant. 3. To a guardian and his or her descendants, with respect to persons who are the wards of such guardian until the ending of the guardianship, and a proper accounting has been rendered by the guardian. An exception to this rule exists when the father of the ward has in his will or in a public instrument expressly authorized such a marriage. AGE.--A male cannot marry until he has completed his fourteenth year of age; a female until she has completed her twelfth year. Marriage contracted by persons under puberty shall, nevertheless, be _ipso facto_ made legal if a day after having arrived at the legal age of puberty, the parties continue to live together without bringing a suit to set aside the marriage, or if the female becomes pregnant before the legal age, or before the institution of a suit for annulment. Persons who are not in the full exercise of their reasoning faculties cannot contract marriage. The law forbids the marriage of all those who suffer from absolute or relative impotency. Priests and all other persons bound by a solemn pledge of celibacy in the approved canonical manner are forbidden to contract marriage, unless they have first received the necessary canonical dispensation. Persons already lawfully married cannot contract a new marriage. CONSANGUINITY AND AFFINITY.--The following persons cannot contract marriage between themselves: 1. The ascendants and descendants by legitimate or illegitimate blood or affinity. 2. Collaterals by legitimate consanguinity up to and including the fourth degree. 3. Collaterals by legitimate affinity up to and including the fourth degree. 4. Collaterals by natural consanguinity or affinity up to and including the second degree. 5. The adopting father or mother and the adopted child; the latter and the surviving spouse of the adoptees, and the adopters and the surviving spouse of the adopted. 6. The legitimate descendants of the adopter with the adopted, while the relation of adoption continues. 7. Accomplices in adultery who have been judicially sentenced. Those who have been condemned as principals, or principal and accomplice, in the homicide of the spouse of any of the parties cannot conclude marriage between themselves. The government for sufficient cause will, on petition of a party, grant a dispensation permitting marriage between collaterals by legitimate consanguinity within the fourth degree. Other dispensations may also be granted on a proper petition. PARENTAL CONSENT.--The consent of the father is required for the marriage of a legitimate minor; in his default, or where he cannot consent, the power to grant it devolves, in this order: upon the mother, the paternal and maternal grandparents, and in default of all these, upon the family council. Recognized natural children or children legitimatized by royal concession must ask the consent of those who have recognized or legitimatized them or of their ascendants, or of the family council. Adopted children must ask the consent of the adopting father, and in his default, of the persons of the natural family upon whom it may devolve. Unrecognized illegitimate children must ask the consent of their mother, when she is known, and in her default consent must be asked of the maternal grandparents, and in their default, that of the family council. Children of age are obliged to ask the advice of the father, and in his default, of the mother before contracting marriage. In case the advice given is against the proposed alliance, the marriage cannot be celebrated until three months after the petition is made. Marriage in Spain is dissolved absolutely only by the death of one of the parties. CANONICAL MARRIAGE.--The requisites, form and solemnities for the celebration of canonical marriage is governed by the laws of the Catholic Church, and by the decrees of the Holy Council of Trent, which are accepted as part of the organic law of Spain. Canonical marriage produces all the civil effects in respect to persons and property of the spouses and their offspring. A magistrate is required to be present at the celebration of a canonical marriage simply for the purpose of making a verified record in the Civil Registry of the marriage. So that he may be present for the purpose above stated, the magistrate must be given notice in writing twenty-four hours at least before the intended celebration, telling him of the day, hour and place of the marriage. Persons who contract canonical marriage in _articulo mortis_ may give notice to the officials in charge of the Civil Registry, at any time whatever prior to its celebration, and prove in any manner whatever that such duty has been performed. CIVIL MARRIAGE.--A civil marriage must be preceded by a declaration to the Municipal Judge, stating the names, ages, professions and domiciles of the contracting parties; also the names, professions and domiciles of the parents; and proper certificates of the births and status of the contracting parties; certificates of consent or advice of parents, and dispensations when required. Marriages may be celebrated personally or by a substitute or proxy to whom a special authorization has been granted. Civil marriages must be solemnized by the contracting parties appearing before the Municipal Judge, or one of them, and the person whom the absent party may have appointed as proxy must appear before such magistrate, together with two competent witnesses. The Municipal Judge, after reading articles 56 and 57 of the Civil Code to the parties (which point out the rights and obligations of married life), must ask each party if they desire to be married to each other, and if both answer in the affirmative, the judge shall declare the parties to be husband and wife, and prepare a record of the marriage. Consuls and vice-consuls are empowered to exercise the function of municipal judges in marriages of Spaniards, celebrated in foreign countries. NULLITY OF MARRIAGE.--The following marriages are null and void: 1. Those concluded between persons related within the prohibited degrees. 2. Those concluded between persons under the age of puberty. 3. Marriages between persons, one or both of whom were of incurably unsound mind. 4. Incurably impotent persons. 5. Persons bound by canonical vows to chastity. The proceeding to have such marriages judicially declared as null may be instituted by either spouse, the Public Attorney, or by any interested person. The action lapses, and the marriage will be confirmed in cases based on abduction, error, force or fear, when the spouses have lived together six months after the error became known, or after the force or fear has ceased. DIVORCE.--A divorce in Spain only amounts to what in other countries is called a judicial separation. Accepting the decrees of the Council of Trent as law for Spain, marriage is treated as a sacramental contract which can only be dissolved by death. The Civil Code, Article 104, states the following causes for divorce: 1. Adultery on the wife's part. 2. Adultery on the part of the husband, when public scandal or disgrace of the wife is a result. 3. Violence exercised by the husband over the wife in order to force her to abandon her religious faith. 4. Cruelty actually inflicted, or grave acts of contumely. 5. The attempt or proposal of a husband to prostitute his wife. 6. The attempts of either husband or wife to corrupt the morals of the sons, or to prostitute the daughters. 7. Condemnation of either spouse to imprisonment for life. EFFECTS OF DIVORCE OR NULLIFICATION.--The civil effects of a divorce or annulment of marriage are as follows: 1. Separation of the parties. 2. To place the custody of the children with one or both of the parties, as justice may require. 3. To determine the responsibility for the support of the woman and children. 4. To place the woman under the special protection of the law. 5. To decree the necessary measures to prevent the husband, who may have given cause for divorce, or against whom the petition for nullity of the marriage has been instituted, from interfering with the wife in the administration of her separate property. HUSBAND AND WIFE.--The spouses are under mutual obligation to live together, to be faithful to, and help each other. The husband is bound to protect his wife and the wife to obey her husband. The wife is required to follow her husband wherever he may establish his residence. The courts, however, will in some cases release her from this requirement when the husband changes his residence to a foreign land. The husband is the manager of the property of the conjugal union, except when there is a mutual agreement to the contrary. The husband is the legal representative of the wife. She cannot, without his permission, appear in a suit by herself or through an attorney. However, she does not need such permission to defend herself in a criminal case or to bring a suit against her husband, or to defend herself in a suit brought by her husband against her. A wife cannot, without her husband's permission, acquire property in trade or by her labour. Neither can she, without such consent, alienate her property. The wife can, without her husband's permission, perform the following acts: 1. Execute a will. 2. Exercise the rights and perform the duties which pertain to her with regard to legitimate and recognized illegitimate children, the issue of herself and another not now her husband. FOREIGN MARRIAGES.--The Spanish courts recognize as valid in Spain any marriage performed in a foreign country in accordance with the laws of such country, provided such marriage also meets with all the requirements of the Civil Code of Spain. CHAPTER XIX. CIVIL CODE OF PORTUGAL. On the third day of October, 1910, King Manuel II. of Portugal was dethroned and a Republic was proclaimed throughout the country. At the present time the affairs of the Republic are being administered by a provisional government. Until this temporary administration is followed by a permanent government, based on a national constitution, the Civil Code promulgated in 1867 will continue to be Portuguese law. MARRIAGE.--Marriage is defined in the Civil Code as a perpetual contract between two persons of different sex to live together and establish a legitimate family. Catholics must celebrate marriage according to the rules and form prescribed by their church. Those who are not Catholics are required to have their marriage celebrated before a civil officer of the State according to the rules and form prescribed by the civil law of the land. Marriage is forbidden: 1. Of minors under the age of 21 years, unless with parental consent. 2. Of persons of adult age who are incapable of properly governing themselves or their estates, without the authorization of their legal representatives. 3. Of an adulterous wife with her accomplice who has been condemned for the offence. 4. Of a wife who has been condemned as the principal or accomplice of the crime of homicide with a principal or accomplice in the same crime. 5. Of any person bound by solemn vows of religion to a life of chastity. The canon law of the Catholic Church defines the religious rules and spiritual effects of marriage, while the civil law defines the civil rules and temporal effects of the contract. A minister of the church who celebrates a marriage contrary to the requirements of Article 1058 of the Civil Code incurs criminal penalties. Marriage between Portuguese subjects who are non-Catholics is recognized as producing full civil effects. CONSANGUINITY AND AFFINITY.--The following persons are forbidden to marry each other: 1. Ascendants and descendants. 2. Persons related collaterally in the second degree. 3. Males who have not completed their fourteenth year and females who have not completed their twelfth year of age. 4. Persons already bound by marriage. Any infraction of these prohibitions makes a marriage voidable. MARRIAGE PRELIMINARIES.--Whoever desires to contract marriage according to the manner provided by the civil law of the land must present to the civil officer of the State acting in the place of the applicant's domicile a declaration setting forth: 1. The full names, ages, occupations and domiciles of the contracting parties. 2. The full names, professions and domiciles of the parents. Upon receiving this declaration the civil officer publishes a notice of the intended marriage and informs all interested persons to file their objections, if any exist, within fifteen days. If at the end of this period no valid objection to the marriage has been formulated the civil officer proceeds to the celebration of the marriage. CELEBRATION.--For the civil celebration of marriage the contracting parties, or their duly empowered proxies, appear before the civil officer of the commune, attended by competent witnesses. If the marriage is celebrated in the official bureau of the commune two witnesses are sufficient; if outside of such bureau six witnesses are required. Any civil officer celebrating a marriage contrary to these provisions incurs penal punishment. ANNULMENT OF MARRIAGE.--A Catholic marriage--that is, one solemnized according to the canonical law--can only be annulled by an ecclesiastical tribunal and according to the laws of the Catholic Church enforceable in Portugal. A sentence of an ecclesiastical tribunal annulling a marriage is executed by the civil authority of the land. A marriage concluded before a civil officer in the form established by the civil law of the land can only be annulled by a civil court. JUDICIAL SEPARATION.--A separation of the person and goods may be had for the following causes: 1. Adultery of the wife. 2. Adultery of the husband, if such adultery creates a public scandal or if the husband brings his concubine into the home he has established for his wife. 3. Sentence of one of the spouses to life imprisonment. 4. Cruel and abusive treatment. DIVORCE.--Under the law of Portugal as it existed down to the day when King Manuel II. was dethroned and a Republic declared there was no such thing as divorce recognized. Portugal has been for centuries a Catholic country, and the decrees of the Council of Trent, as well as all the other rules and regulations concerning marriage stated by the Catholic Church, have been accepted by Portugal as part of the law of the land. However, since December 1, 1910, when the present provisional government was constituted, certain new laws have been promulgated by government decree. One of these new laws relates to divorce and is most modern and radical in its scope. It permits the courts to grant absolute divorces for a number of reasons, including "mutual consent of the parties." Whether such laws, created by proclamation instead of legislation, will be incorporated into the inevitable new Civil Code of Portugal is a problem for the future. Our endeavour in this chapter has been to state the organic law of Portugal as it at present exists, untouched by legislation on the statute books of that ancient land. CHAPTER XX. ROUMANIA. Roumania is the name officially adopted by the united kingdom that comprises the former principalities of Walachia and Moldavia. In its native form it appears simply as "Roumania," representing the claim to Roman descent put forward by its inhabitants. The Roumanian Civil Code from which we summarize in this chapter the law of marriage and divorce of Roumania is practically a copy of the French Civil Code. MARRIAGE.--A man must be eighteen years of age and a woman fifteen in order to contract lawful marriage, except a dispensation is granted by the King. The free consent by both contracting parties is essential. Men under twenty-five years of age and women under twenty-one cannot marry without the parental consent. Men under the age of thirty and women under the age of twenty-five are obliged to ask the consent of their parents. A man or woman is allowed but one spouse at a time. CONSANGUINITY AND AFFINITY.--Marriage is forbidden between relatives, whether by blood or by marriage, in the direct line, and in the collateral line to the fourth degree, inclusive, by the Roman method of counting. The prohibition obtains whether the relationship arises from legitimate or illegitimate birth. A dispensation from such impediments may, in special cases, be granted, by the King. Marriage is forbidden between relatives by adoption and between godparents and their godchildren. Marriage is forbidden between guardians and wards, or between trustees and wards, and the father, son or brother of a guardian or trust cannot marry the ward until the accounts of the guardianship or trust have been properly audited and settled. Soldiers cannot marry without the consent of the military authorities. Marriage is expressly forbidden to priests, monks and nuns. Divorced persons are forbidden to remarry each other. A woman whose marriage has been dissolved by death or divorce may not marry again until the expiration of ten months after such dissolution. MARRIAGE PRELIMINARIES.--A marriage must be preceded by the publication of the names, occupations and residences of the parties themselves, and of their parents, on two Sundays before the celebration. Such publication of banns must be made before the door of the parish church and the door of the town hall of the commune where the marriage is to be concluded. The marriage cannot be solemnized until the fourth day after the second publication of banns. If a year passes after such publication without marriage a new publication is necessary. If, upon the publication of banns, the intended marriage is opposed, as it may be, by any person, the registrar of the commune must defer the celebration of marriage until the opposition has been withdrawn or overruled. CELEBRATION.--The marriage must be celebrated by the registrar in the town hall of the commune in which one of the parties had had continuous residence for at least six months. The registrar, in the presence of four witnesses, reads to the parties that chapter of the Civil Code of Roumania which defines the rights and duties of marriage. The parties must then declare to the registrar their intention to marry each other. After this the officiating registrar pronounces the parties to be husband and wife. If a religious celebration is desired it must in all cases be preceded by the civil ceremony. ANNULMENT OF MARRIAGE.--A marriage may be annulled on any of the following grounds: 1. That it was not regularly celebrated before a registrar. 2. That free consent of one or both parties did not exist. 3. Lack of proper age. 4. An existing marriage. 5. Relationship within prohibited degrees. 6. Lack of parental consent. 7. In the case of a soldier, lack of proper consent from the necessary military authorities. Where a marriage has been contracted in good faith the parties thereto and the issue of the marriage are entitled to all civil rights resulting therefrom; but if only one party was in good faith, only that party and the issue of the marriage are entitled to these rights. DIVORCE.--The great majority of the people of the kingdom belong to the Roumanian branch of the Orthodox Greek Church, which in practice does not hold to the doctrine of the indissolubility of marriage. The law of the land permits absolute divorce for the following causes: 1. By mutual consent of the parties. The parties on such an application appear before a judge with a written inventory of their goods, showing the division agreed upon, and with certificates of their birth and marriage, of the births and deaths of their children, and, when necessary, the consent of their parents. The judge then endeavours to reconcile the parties. If at the end of one year and fifteen days no reconciliation has been effected a divorce is granted. 2. Adultery of husband or wife. 3. Cruel and abusive treatment of one spouse toward the other. 4. A judicial condemnation of either party to a prison sentence for an infamous crime. 5. An attempt of one party on the life of the other. 6. Intentional omission of one spouse to warn the other of an attempt by a third person on the life of the other spouse. SEPARATION.--Judicial separations are not granted by the courts of Roumania. EFFECTS OF DIVORCE.--Divorced parties are forbidden to remarry each other. A divorced woman may not marry again within ten months after her divorcement, and the guilty party in a suit for divorce on the ground of adultery may not marry his or her accomplice in adultery. Otherwise divorced parties are free to marry again. A divorced woman may not retain her husband's surname. All property rights granted by the innocent party to the guilty party are extinguished by the decree of divorce. The guilty party may be ordered to contribute to the support of the innocent party. The custody of the children is usually given to the successful suitor. The court may, however, if circumstances require, entrust the children to the guilty party or to a third person. CHAPTER XXI. SERVIA. Servia is a kingdom in the northwestern part of the Balkan Peninsula. In 1882 it became a constitutional monarchy. The judiciary is vested in a High Court of Appeal, a Court of Cassation, a Commercial Court and twenty-three courts of the first instance. The Servian laws of marriage and divorce are substantially the same as those of the Orthodox Greek Church. All marital suits in which one or both parties belong to this church are governed by State law, although jurisdiction lies with the ecclesiastical courts. Matters pertaining to property settlement are, however, entirely within the jurisdiction of the civil courts, as are all marital suits in which neither party belongs to the Greek Church. When the parties to a marital suit are Roman Catholics decisions are rendered according to the canon law; and when both parties are Protestants, according to the principles of the sect to which the parties belong. In the case of a mixed marriage of others than adherents of the Greek Church the decision is rendered according to the principles of the church in which the marriage was celebrated. MARRIAGE QUALIFICATIONS.--A man cannot marry until he has completed his seventeenth year; a woman until she has completed her fifteenth year of age. By the dispensation of the church, granted by a bishop, a man of fifteen years or a woman of thirteen years may conclude marriage. The free consent of both parties is essential to a valid marriage. If both the contracting parties are over eighteen years of age parental consent to a marriage is not obligatory. Where both parties are under eighteen years, or the intended bride is under that age and the intended bridegroom is under twenty-one years, the consent of parents is necessary. All persons are forbidden to contract a new marriage until a previous existing marriage has been dissolved or judicially declared a nullity. CONSANGUINITY AND AFFINITY.--Marriage is prohibited between relatives by blood in the direct line and in the collateral line as far as the eighth degree, inclusive--that is to say, as far as the degree of relationship of third cousins. Relatives in the seventh or eighth degree may marry by episcopal dispensation. Marriage is prohibited between relatives by marriage as far as the fifth degree, inclusive. Marriage is prohibited between persons spiritually related, as between the godparent and the godchild or his descendants. IMPEDIMENTS.--Persons who have been judicially condemned for adultery are forbidden to contract marriage with their accomplices in the offence. The party declared guilty in a suit for divorce is prohibited from marrying again during the lifetime of the innocent party. A woman may not, as a rule, marry again until nine months after the dissolution by death or divorce of her previous marriage. Insane persons cannot contract a binding marriage. Incurable impotence of either party, which existed at the time the marriage was concluded, is cause for a decree of nullity. Marriage is expressly forbidden between Christians and Jews or between Christians and non-Christians of any sect whatever. Marriage is prohibited between two persons one of whom has attempted the life of the husband or wife of the other. A lawful marriage cannot be concluded with a woman who has been abducted and has not yet been restored to freedom. Marriage cannot be concluded by a person who is under sentence to imprisonment. PRELIMINARIES.--Before the marriage the parish priest must, on three successive holy days, publish banns in the church, and if any member of the parish knows of any impediment it is his or her duty to inform the priest. If a priest fails thus to publish banns, and impediments later appear, he is amenable to punishment. CELEBRATION.--The law of Servia does not recognize a civil marriage. If the parties, or one of them, belong to the Orthodox Greek Church they must be married according to the rites of that church. Christians of other sects must be married by their clergy and Jews by their authorized ministers. CHILDREN.--Marriage of the parents subsequent to their birth renders illegitimate children fully legitimate. ANNULMENT OF MARRIAGE.--A marriage may be declared null by a decree of a court of competent jurisdiction whenever it appears that some essential qualification to make the marriage valid was absent at the time it was concluded, or if it appears that the marriage was concluded in disregard of the impediments stated by law. ABSOLUTE DIVORCE.--A complete divorce from the marriage bond is allowed by the courts for the following causes: 1. Adultery of either party. 2. Attempt by either spouse to kill the other. 3. The concealment by one spouse of information concerning a plot to kill the other spouse. 4. Penal servitude incurred by either spouse, under a sentence of at least eight years. 5. Apostasy from the Christian religion. 6. Deliberate desertion persisted in for three years. 7. Flight from Servia followed by absence of at least four years. 8. Absence without news for six years. A decree of divorce or a decree annulling a marriage must always be submitted for the approval or disapproval of the ecclesiastical courts. EFFECTS OF DIVORCEMENT.--The innocent party to a divorce suit may contract a new marriage, but the guilty party is forbidden to remarry during the lifetime of the innocent party. Usually each party regains such goods and effects as he or she brought to the alliance. CUSTODY OF CHILDREN.--Boys under four years and girls under seven are given, as a rule, to the mother's custody. After that they are given to the custody of the father. The divorced woman must not continue to use the surname of her ex-husband. JUDICIAL SEPARATION.--A separation from bed and board may be granted by the court whenever the facts show such a decree to best promote the interests and well-being of the spouses. CHAPTER XXII BULGARIA. The national religion of the Bulgarian people is that of the Orthodox Greek Church, and consequently the laws of that church on the subject of marriage and divorce is part of the organic law of Bulgaria. Upon the political independence of the country the Bulgarian Church, which had hitherto been under the Patriarchate of Constantinople through an exarch, declared its independence and established the Bulgarian Exarchate. The ecclesiastical courts of this Exarchate have general jurisdiction of matrimonial causes except as concern Mohammedans, Jews, and Christians who are not adherents of any of the Eastern Orthodox churches. Besides the laws of the Church, Bulgaria has a national law of marriage and divorce dating from 1897. The matrimonial concerns of Mohammedans are governed by the law of the religion of Mohammed. Christians who are dissenters from the Orthodox Church are permitted to marry according to the rules and regulations of their sect. REQUIREMENTS FOR MARRIAGE.--The marriageable age for men begins with twenty years, and for women with eighteen years. Parental consent is required, but if it is arbitrarily denied the authorities of the church may give their consent in its stead. A man or woman is permitted to have but one spouse at a time. CONSANGUINITY AND AFFINITY.--Marriage is forbidden between ascendants and descendants. In the collateral line marriage is forbidden between persons related within the seventh degree. Under this rule a person cannot lawfully marry the child of his or her second cousin. The ecclesiastical authorities may upon such grounds as to them may seem sufficient grant a dispensation permitting a marriage within the prohibited degrees. Marriage is also prohibited between godparents and godchildren, and between godchildren who have the same godparent. Here also the clergy may remove the impediment by dispensation. Persons suffering from idiocy, insanity, epilepsy or syphilis cannot contract lawful marriage. Marriage is forbidden when the parties are of different religious faiths. A person under obligation by religious vow to remain celibate or one who has been sentenced to a state of celibacy by an ecclesiastical court cannot conclude marriage. Accomplices in adultery may not marry each other. Persons in the military service must obtain the consent of their superiors to contract marriage. CELEBRATION.--The law of Bulgaria does not permit a civil marriage. If both or one of the contracting parties are baptized members of the Orthodox Greek Church, the marriage service must be in accordance with the rites of that church. Christians who belong to other churches are permitted to be married by the ministers of their faith. Three weeks at least must intervene between the betrothal and the wedding. All marriages must be preceded by the publication of banns. FOREIGN MARRIAGES.--The law of Bulgaria does not recognize the foreign marriage of Bulgarian subjects unless the following elements are present: 1. The foreign marriage must comply with all the laws and rules of the foreign country where it is concluded. 2. If the parties are baptized members of the Orthodox Greek Church the marriage must be solemnized by a priest of that church. This rule applies even though in the country where the marriage was concluded a civil ceremony is sufficient. DIVORCE.--The Church and State both permit absolute divorces. The causes are: 1. Adultery of either spouse. 2. Drunkenness and disorderly conduct. 3. Cruel and abusive treatment. 4. Threat to kill. 5. Incurable impotence. 6. Absence of the husband for four years coupled with failure to support wife. 7. Sentence to prison for an infamous offense. 8. False accusation of adultery. 9. Wife's desertion of the husband continued for three years. DIVORCE PROCEDURE.--As before stated the suit for divorce must be brought before the ecclesiastical court. EFFECTS OF DIVORCE.--If the guilty party is the wife, her husband has the right to retain all her dowry which she brought to him, and to retake all gifts made to her either before or after marriage. If the guilty party is the husband, the wife has the right to recover her dowry, to keep any present she ever received from the husband, and to exact suitable maintenance from her divorced husband until such time as she remarries. The custody of the children is given to the winning suitor, except that children under five years remain in the care of their mother. CHAPTER XXIII. THE KINGDOM OF GREECE. Because of its matchless philosophy, literature and art, ancient Greece is still the marvel of the modern world, but little credit is given to old Hellas as one of the principal sources of the jurisprudence of to-day. For political reasons the Roman law was the overshadowing and dominating system of ancient law, but the fountain head of the laws of Rome, even of the Laws of the Twelve Tables, was the land of Demosthenes, Pericles, Solon and Lycurgus. The great jurisconsults of the Roman Empire were not Roman but Greek lawyers, not the least of whom was Gaius, the legal commentator who was the Blackstone of his period. The Roman Empire was the physical expression of Grecian intellect. Not only the first lawyers but the first popes of Rome were Greeks. The modern Kingdom of Greece has an excellent system of jurisprudence based on the old Roman law, with modifications drawn from the Bavarian and French. The commercial law has been adapted from the _Code Napoleon_, the penal laws are of Bavarian origin, and the laws of marriage and divorce are derived from the Roman law necessarily modified to harmonize with the dogmas of the Orthodox Greek Church, which is the national church of the kingdom. The Areopagus existed in Greece as a court of justice before the first Messenian war, 740 B. C. This court was situated on the Hill of Ares outside the city of Athens, the very "Hill of Mars" on which St. Paul preached in the year A. D. 52. We find historical mention of the Court of Areopagus as late as the year 880 of the Christian Era. It is unlikely that the Areopagus of to-day, which is the supreme court of appeal in modern Greece, has any other relationship than the same venerable name with the court of ancient times. Besides the Court of the Areopagus, there are four other inferior courts of appeal, one for each of the judicial districts of Greece. There are also four commercial tribunals, seventeen courts of first instance, and over two hundred justices of the peace. The standard of the Grecian judiciary is very high, for only men of unblemished reputation who have received the degree of doctor of law from a reputable European university are eligible to the bench. There is no _habeas corpus_ act in Greece, but no one can be arrested, no house can be entered, and no letter opened without a judicial warrant. The supreme power of the Church of Greece is vested in the Holy Hellenic Synod which consists of five members, who are appointed annually by the King, and the majority of whom must be prelates. The Metropolitan Archbishop of Athens is _ex-officio_ president; two royal commissioners attend without voting and the Synod's resolutions require to be confirmed by them in the King's name. In all purely spiritual matters the Synod has entire independence; but on questions having a civil side, such as marriage and divorce, it can only act in concert with the civil authorities. The Orthodox Greek Church as a matter of dogma treats marriage as a sacrament or divine ordinance, but unlike the Latin Church, it holds that for sufficient cause marriage may be legally dissolved, but not till a probationary period has elapsed during which a bishop or priest mediates with the purpose of reconciling the parties. MARRIAGE.--Both by the law of the land and the church law, marriage in Greece is treated as a social status which can only be concluded by a religious celebration. A civil ceremony has no validity. If both the parties or one of them are baptized members of the Orthodox Greek church, the marriage must be celebrated before a priest and in accordance with the laws and rites of that church. When both of the parties are Roman Catholics they must be married by a priest of their religion. If one of the parties is a Roman Catholic and the other a member of the Orthodox Greek Church, the marriage must be solemnized by a priest of the latter church. The rule is that mixed marriages must be solemnized by a priest of the Greek Church. Jews and Protestants may be married by the ministers of their respective denominations. AGE.--The marriageable age of males begins at the completion of their fourteenth year, and that of females at the completion of their twelfth year. CONSENTS.--The free consent of the contracting parties is essential. For a man under twenty-one years of age, or a woman under eighteen years of age, the parental consent is also necessary. MONOGAMY.--All persons are forbidden to contract a new marriage until a previous marriage has been dissolved by death or divorce. CONSANGUINITY AND AFFINITY.--Marriage is prohibited between persons of whom one is descended in a direct line from the other. Collateral kinsmen are forbidden to marry within the sixth degree. The degrees are counted according to the Roman law method of reckoning which counts the number of descents between the persons on both sides from the common ancestor. The authorities of the national church may upon such facts as to them seem proper grant a dispensation allowing a marriage within the forbidden degrees. SPIRITUAL RELATIONSHIP.--Marriage is expressly forbidden between godparents and their godchildren, and between godchildren who have the same godparent. A church dispensation is, however, easily obtained, relieving the parties from the last mentioned impediment. SPECIAL PROHIBITIONS.--Persons suffering from defective intellect, insanity, syphilis or epilepsy are forbidden to conclude marriage. Persons under religious vows to remain celibate cannot conclude marriage unless dispensed from such vows. Accomplices in adultery may not marry each other. Persons in the military service may not conclude marriage without the consent of the higher military authority. PRIESTS.--A priest of the Orthodox Greek Church is required to marry once, but he cannot contract a second marriage even after the death of his first wife. FOURTH MARRIAGE.--It is contrary to the law of the land as well as the law of the church for any person to contract a fourth marriage. BANNS.--All marriages must be preceded by the publication of banns. FOREIGN MARRIAGES.--The Greek courts will not recognize the foreign marriage of Greek subjects who are baptized members of the Orthodox Greek Church unless the marriage was solemnized before a priest of that church. This is the rule, even though in the country where the marriage was concluded a civil ceremony is sufficient and obligatory. DIVORCE.--Absolute divorces are granted for the following causes: 1. Adultery of either husband or wife. 2. Cruel and inhuman treatment, endangering life or health. 3. An attempt by either spouse to kill the other. 4. Threat to kill. 5. The condemnation and imprisonment of either spouse for an infamous or degrading crime. 6. Confirmed habits of drunkenness. 7. Desertion. 8. Incurable impotence of either party. PROCEDURE.--All suits for divorce must be instituted in the ecclesiastical courts of the Orthodox Greek Church. EFFECTS OF DIVORCE.--Both parties are free to remarry, but the wife must wait until a full year has elapsed from the granting of a decree before contracting a new marriage. The wife must not use the surname of her divorced husband. If the wife is the successful suitor, she can recover from the defeated party the dowry she brought to him at marriage. She has a right also to retain any gifts she may have received from him either before or after marriage. In some instances the husband is obliged to pay alimony to his divorced wife during her lifetime, up to the time she contracts a new marriage. If the parties have children, such of them as are so young as to need a mother's care are temporarily awarded to the woman's custody even though she be the party declared to be guilty in the divorce suit. CHAPTER XXIV. THE MOHAMMEDAN LAW OF TURKEY, PERSIA, EGYPT, INDIA, MOROCCO AND ALGERIA. The laws of Mohammedanism which are founded on the Koran and the Traditions of Mohammed to-day constitute the civil and religious code of many millions of the world's inhabitants. A country that is subject to the government of Mohammedans is termed _Dar-ool-Islam_, or a country of safety and salvation, and a country which is not subject to such government is termed _Dar-ool-hurb_, or a country of enmity. Though Mohammedans are no longer under the sway of one prince, they are so bound together by the common tie of Islam that as between themselves there is no difference of country, and they may therefore be said to compose but one _dar_ or commonwealth. A Mohammedan is subject to the law of Islam absolutely, that is without distinction of place or otherwise. Every unbeliever in the Mohammedan religion is termed a _kafir_, or infidel, and infidels who are not in subjection to some Mohammedan state are generally treated by Islamic lawyers as _hurbees_, or enemies. The Mohammedans are taught to believe that their system of jurisprudence is of divine origin, is incapable of improvement, and can never be changed in any material particular. The fact is that with all its alleged source, perfection and immutability Mohammedan law has not been able to escape the inevitable rule of change which seems to affect everything and everybody in this world. There are certain countries where the entire legal and religious system is based on the laws of Mohammedanism; such countries are: Turkey, Persia and Morocco. There are other countries, such as Egypt, India and Algeria, where the law of Islam operates side by side with other legal systems. In India there are four distinct systems of jurisprudence, all in full operation and effect. These are: 1. English law created by the British Parliament. 2. Anglo-Indian law, which is created in India by the Legislative Councils of the British Government. 3. Hindu law, which applies to every one in British India who is a Hindu, and to no one else. 4. Mohammedan law, which applies to every one in British India who is a Mohammedan, and to no one else. If a Mohammedan in India abandons his religion he ceases to be governed by Mohammedan law. Since the promulgation of the Regulations of Warren Hastings in 1772, all suits in British India regarding inheritance, marriage, caste and other religious usages and institutions with respect to Mohammedans have been decided invariably according to Mohammedan law. EGYPT.--There are four kinds of legal tribunals in Egypt, namely: 1. The Native Courts, which have civil and criminal jurisdiction over natives. 2. The Consular Courts, which have jurisdiction over foreigners charged with crime. 3. The Mixed Tribunals, which have civil and criminal jurisdiction over persons of diverse citizenship. 4. The Mohammedan Courts, which deal with the questions of the personal rights of the Mohammedan inhabitants according to the laws of Islam. As over ninety _per centum_ of the people of Egypt are Mohammedans, the importance of the Mohammedan Courts is apparent. The Mohammedan law of marriage and divorce is also recognized as controlling and effective when the parties to a marriage are Mohammedans, in Russia, Roumania, Servia, Bulgaria and Greece. MARRIAGE.--Marriage is enjoined on every Mohammedan, and celibacy is frequently condemned by Mohammed. "When the servant of God marries, he perfects half of his religion," said the Prophet. Once Mohammed inquired of a man if he was married, and being answered in the negative, he asked, "Art thou sound and healthy?" When the man answered that he was the Prophet angrily said, "Then thou art one of the brothers of the devil." VALIDITY OF MARRIAGE.--Marriage, according to Mohammedan law, is simply a civil contract, and its validity does not depend upon any religious ceremony. Though the civil contract is not required to be reduced to writing, its validity depends upon the consent of the parties, which is called "_ijab_" and "_gabul_," meaning declaration and acceptance; the presence of two male witnesses (or one male and two female witnesses); and a dower of not less than ten _dirhams_ to be settled on the woman. The omission of the settlement does not, however, invalidate the contract, for under any circumstances, the woman becomes entitled to her dower of ten _dirhams_ or more. It is a recognized principle that the capacity of each of the parties to a marriage is to be judged of by their respective _lex domicilii_. The capacity of a Mussulman domiciled in England will be regulated by the English law, but the capacity of one who is domiciled in the _Belâd-ul-Islâm_, or Mohammedan country, by the provisions of Mohammedan law. We are told by the highest authorities on Islamic law that the three principal conditions which are requisite for a proper marriage are: understanding, puberty and freedom in the contracting parties. The Mohammedan law fixes no arbitrary age at which either male or female is competent to marry. Besides understanding, puberty and freedom, the capacity to marry requires that there should be no legal disability or bar to the union of the parties; that in fact they should not be within the prohibited degrees of relationship. LEGAL DISABILITIES.--There are nine prohibitions to marry, namely: 1. Consanguinity, which includes mother, grandmother, sister, niece and aunt. 2. Affinity, which includes mother-in-law, step-grandmother, daughter-in-law and step-granddaughter. 3. Fosterage. A man cannot marry his foster-mother, nor foster-sister, unless the foster-brother and sister were nursed by the same mother at intervals widely separated. But a man may marry the mother of his foster-sister, or the foster-mother of his sister. 4. Sister-in-law. A man may not marry his wife's sister during his wife's lifetime, unless she be divorced. 5. A man married to a free woman cannot marry a slave. 6. It is not lawful for a man to marry the wife or _mu'taddah_ of another, whether the _'iddah_ be on account of repudiation or death. That is, he cannot marry until the expiration of the woman's _'iddah_, or period of probation. 7. A Mohammedan cannot marry a Polytheist, but he may marry a Christian, Jewess, or a Sabean. 8. It is not lawful for a man to marry his own slave, or a woman her bondsman. 9. If a man pronounces three divorces upon a wife who is free, or two upon a slave, she is not lawful to him until she shall have been regularly espoused by another man, who having duly consummated the marriage, afterwards divorces her, or dies, and her _'iddah_ from him be accomplished. In the _Korân_ or _El-Kor'an_ we find in the chapter on women (Sura IV.) the law expressed as to certain prohibitions: "Forbidden to you are your mothers, and your daughters, and your sisters, and your aunts, both on the father's and mother's side, and your nieces on the brother's and sister's side, and your foster-mothers, and your foster-sisters, and the mothers of your wives, and your stepdaughters who are your wards, born of your wives to whom you have gone in: (but if ye have not gone in unto them, it shall be no sin in you to marry them) and the wives of your sons who proceed out of your loins; and ye may not have two sisters; except where it is already done. Verily, God is Indulgent, Merciful!" POLYGAMY.--According to Mohammedanism polygamy is a divine institution, and has the express sanction of the law. Mohammed restrained the practice of polygamy by limiting the maximum number of contemporaneous marriages, and by making absolute equity toward all obligatory on the man. A Mohammedan may marry four wives but no more. The law is thus stated: "You may marry two, three, or four wives, but not more." However, all true believers are enjoined that, "if you cannot deal equitably and justly with all you shall marry only one." In India more than ninety-five _per centum_ of the Mohammedans are at the present, either by conviction or necessity, monogamists. In Persia only two _per centum_ of the population enjoy the questionable luxury of plurality of wives. CELEBRATION OF MARRIAGE.--The _Nikah_, or celebration of the marriage contract, is preceded and followed by festive rejoicings, which have been variously described by Oriental travellers, but they are not parts of either the civil or religious ceremonies. The Mohammedan law appoints no specific religious ceremony, nor are any religious rites necessary for the contraction of a valid marriage. Legally, a marriage contracted between two persons possessing the capacity to enter into the contract is valid and binding, if entered into by mutual consent in the presence of witnesses. As a matter of practice a Mohammedan marriage is generally concluded by a formal ceremony which is ended by the _Qazi_ offering the following prayer: "O Great God! grant that mutual love may reign between this couple, as it existed between Adam and Eve, Abraham and Sarah, Joseph and Zalikha, Moses and Zipporah, his highness Mohammed and Ayishah, and his highness Ali al-Murtaza and Fatimatu'z-Zahra." HUSBAND AND WIFE.--A husband is not guardian over his wife any further than respects the rights of marriage, nor does the provision for her rest upon him any further than with respect to food, clothing and lodging. A husband must reside equally with each of his wives, unless one wife bestow her right upon another wife. A wife cannot give evidence in a court of law against her husband. If she becomes a widow she must observe mourning for the space of four months and ten days. In the event of her husband's death a wife is entitled to a portion of her husband's estate, in addition to her claim of dower, the claim of dower taking precedence of all other claims on the estate. "The women," says the Koran, "ought to behave toward their husbands in like manner as their husbands toward them, according to what is just." When the husband has left the place of conjugal domicile without making any arrangements for his wife's support, the judge is authorized by law to make an order that her maintenance shall be paid out of any fund or property which the husband may have left in deposit or in trust, or invested in any trade or business. When a woman abandons the conjugal domicile without any valid reason, she is not entitled to maintenance from her husband. The Mohammedan law lays down distinctly that a wife is bound to live with her husband, and to follow him wherever he wishes to go; and that on her refusing to do so without sufficient or valid reason, the courts of justice, on a suit for restitution of conjugal rights by the husband, would order her to live with her husband. The obligation of the wife, however, to live with her husband is not absolute. The law recognizes circumstances which justify her refusal to live with him. Although the condition of women under Mohammedan law is most unsatisfactory, it must be admitted that Mohammed effected a vast and marked improvement in the condition of the female population of Arabia. Amongst the Arabs who inhabited the peninsula of Arabia the condition of women was extremely degraded, for amongst the pagan Arabs a woman was a mere chattel. The Koran created a great reformation in the condition of women. For the first time in the history of Oriental legislation the principle of equality between the sexes was approached. DIVORCE.--The Mohammedan law of divorce is founded upon express injunctions contained in the Koran, as well as in the Traditions, and its rules occupy an important part of all Mohammedan works on jurisprudence. These rules may be summarized thus: The thing which is lawful but disliked by God is divorce. A husband may divorce his wife without any misbehaviour on her part, or without assigning any cause. There is an irregular form of divorce in which the husband repudiates his wife by three sentences, either express or metaphorical, as for example: "Thou art divorced! Thou art divorced! Thou art divorced!" The Mohammedan who thus divorces his wife is held in the _Hidayah_ to violate the law, but the divorce is legal. A sick man may divorce his wife, even though he be on his death-bed. An agent or agents may be appointed by a husband to divorce his wife. In addition to the will or caprice of the husband, there are also certain conditions which require a divorce. The following are causes for divorce, but generally require to be ratified by a decree from the _Qazi_ or judge: 1. _Jubb._ That is, when the husband has been by any cause deprived of his organ of generation. This condition is called _majbub_, and if it existed before the marriage the wife can obtain instant divorce. 2. _Unnah._ Impotence of either husband or wife. 3. Inequality of race or tribe. 4. Insufficient dower. (If the stipulated dowry is not given when demanded.) 5. Refusal of Islam. If one of the parties embrace Islam, the judge must offer it to the other three distinct times, and if he or she refuse to embrace the faith, divorce follows. 6. Unjust accusation of adultery by a husband against his wife. 7. If a wife becomes the proprietor of her husband or the husband becomes the proprietor of his slave wife divorce takes place. 8. An invalid marriage of any kind, arising from consanguinity or affinity of parties, or other causes. 9. The executed vow of a husband not to have sexual intercourse with his wife for as long as four months. 10. Difference of country. As, for example, if a husband flee from a non-Moslem country to a country of Islam and his wife refuses to accompany him. 11. Apostasy from Islam. The Greek Church holds that marriage is dissoluble in case of adultery, but not till a probationary period has elapsed during which a bishop or priest mediates with a view to reconciliation. A fourth marriage is unlawful. When a man or woman apostatizes from Islam, then an immediate dissolution of the marriage takes place, whether the apostasy be of the man or of the woman, without a judicial decree. If both husband and wife apostatize at the same time, their marriage bond remains; and if at any future time the parties again return to Islam, no remarriage is necessary to constitute them man and wife. There is a form of divorce known as _khula_ which is when a husband and wife disagreeing, or for any other cause, the wife on payment of a compensation or ransom to the husband, is permitted by law to obtain from him a release from the marriage tie. _Mubara'ah_ is a divorce which is effected by mutual release. A COMPARISON.--When compared with the Mosaic law it will be seen that by the latter, divorce was only sanctioned when there was "_some uncleanness_" in the wife, and whilst in Islam a husband can take back his divorced wife, in the law of Moses it was not permitted. See Deut. xxiv., 1-4. IDDAH OR IDDAT.--This is the term of probation incumbent upon a woman in consequence of a dissolution of marriage, either by divorce or the death of her husband. After a divorce the period is three months, and after the death of her husband four months and ten days, both periods being enjoined by the Koran. EFFECTS OF DIVORCE: 1. Sexual intercourse between the divorced persons becomes unlawful. 2. The wife is free to marry another husband after the completion of her _iddah_; or immediately if the marriage was never consummated. 3. The husband may complete his legal number of four wives without counting the divorced one, or may marry a woman who could not be lawfully joined with the divorced one, for example, her sister, after the completion of her _iddah_ but not before. 4. If the marriage has been consummated before the divorce, the whole of the unpaid dower becomes immediately payable by the husband to the wife, and is enforceable like any other debt if the marriage had not been consummated and the amount of dower was specified in the contract, he is liable for half that amount; if none was specified, he must give the divorced wife a present suitable to her rank, or their value. But the wife has no right to anything if the divorce took place by her wish, or in consequence of any disqualifications on her side, as for instance, her apostasy. 5. The wife is entitled to be maintained by her husband during the _iddah_ on the same scale as before the divorce, conditionally on submitting to her husband's control as regards her place of residence and general behaviour. But on completion of her _iddah_ she ceases to have any claim for maintenance. CHAPTER XXV. THE UNITED STATES OF AMERICA. The United States as such, that is, in its Federal capacity, has no single system of marriage and divorce laws applicable to all the States and Territories. The purpose of the Constitution of the United States is to maintain by its federal structure a strong national government, while recognizing each of the States which make up the federation to be so far as is consistent with the motive of the Union, sovereign commonwealth. When one considers this wonderful federation of States and Territories, with nearly half a hundred separate governments each making and interpreting its domestic laws, and yet all parts of, and working in harmony with, the central or Federal Government, the justice of Gladstone's tribute to the American Constitution as "the most wonderful work ever struck off at a given time by the brain and purpose of man" is apparent. The laws of marriage and divorce in the various States and Territories cannot therefore be ascertained from a single legislative or judicial source. The law of the several jurisdictions consists not only of legislative enactments, but of judicial construction and interpretation of such legislation. Fortunately the tendency is toward uniformity of legislation among the States, especially on the important subject of marriage and divorce, and such differences as exist are pointed out substantially in this chapter when each State or Territory is considered separately. The Congress, or national legislature, has power to legislate only upon such subjects as the Federal Constitution marks out for it, and all powers not granted to the Federal government remain with the several States. The regulation of marriage and divorce is one of the most important domestic concerns which remains within the jurisdiction of a State. Article IV., Section 3, of the Constitution of the United States expressly grants to Congress exclusive power to prescribe laws for the Territories of the United States. Just as each State has a separate judicial system so the Federal Government has its separate courts, which have no power to interfere with the proceedings or judgments of the State courts unless some principle of the Federal Constitution or a national law is challenged. ESSENTIALS TO MARRIAGE.--There are three requisites to a lawful marriage in all of the States and Territories of the United States. These are: 1. First, that the marriage is _monogamous_. That is, the Federal courts and the courts of the several States only recognize as a true marriage one which in addition to being valid in other respects is a voluntary union of one man and one woman for life to the exclusion of all others. 2. The parties must be competent according to the _lex loci contractus_, or the law where the contract was concluded. 3. There must be free consent on the part of both of the contracting parties. INTERSTATE COMITY.--As Wharton points out in his "Conflict of Laws," marriage is not merely a contract but an international institution of Christendom. Often complications arise out of some difference between the law of marriage and divorce in the State where a marriage is concluded, or a divorce effected, and the law of the State where one or both of the parties may after the marriage or divorce acquire a domicile. The guiding rule in such cases is that if a marriage or divorce is valid in the State or Territory where it was concluded or effected, it is valid in all of the States and Territories of the United States. PROOF OF MARRIAGE.--There are various methods of proving the existence of a marriage. Where the parties live together ostensibly as husband and wife, demeaning themselves toward each other as such, and are received into society and treated by their friends and relations as having and being entitled to that status, the law will, in favour of morality and decency, presume that they have been legally married. This is the rule accepted with but slight qualifications in all of the States. The cohabitation of the parties coupled with the general reputation of being husband and wife is, however, at the best _prima facie_ evidence sufficient for the purposes of a civil suit. In criminal prosecutions for adultery or bigamy, marriage is a necessary ingredient of the offence, and must be directly established. PROOF OF MARRIAGES ABROAD.--In the absence of special statutes requiring a marriage abroad, or in another State to be proven in a particular manner, a foreign marriage can only be established by authenticated copies of the original records, or by proving as a matter of fact what the legal requirements for marriage are in the other country or State, together with proof that such requirements have been complied with. Of course, it is always necessary to identify the parties to any record. CONSANGUINITY AND AFFINITY.--By an Act of Congress applicable to all the Territories marriage within and not including the fourth degree of consanguinity computed according to the civil law is forbidden. This is with but slight variation the rule adopted by each of the States. SOURCES OF LAW.--The laws of marriage in the several States and Territories originate from the law on that subject as it existed in England at the time of the adoption of the Federal Constitution, as subsequently modified by State legislation and local judicial interpretation. The law of divorce as it exists in the several States is entirely of local creation. In the remainder of this chapter each State and Territory of the United States and the District of Columbia is considered separately. ALABAMA. MARRIAGE.--The marriageable age for males begins at 17 years and for females at 14 years of age. Males under twenty-one years and females under eighteen years require the consent of their parents to lawfully conclude marriage. The essence of marriage which is considered as a civil contract is the free consent of both parties. IMPEDIMENTS.--The son must not marry his mother or stepmother, or the sister of his father or mother, or the widow of his uncle. The brother must not marry his sister or half-sister, or the daughter of his brother or half-brother, or of his sister or half-sister. The father must not marry his daughter or granddaughter, or the widow of his son. No man shall marry the daughter of his wife, or the daughter of the son or daughter of his wife; and all such marriages are declared incestuous. FORBIDDEN MARRIAGES.--Bigamous marriages; incestuous marriages; miscegenation--between blacks and whites; and marriage of a female compelled by menace, force or duress. Such marriages involve a criminal prosecution. CELEBRATION.--A marriage may be concluded before any regular minister of religion, any judge of a court of record, or a justice of the peace. CAUSES FOR ABSOLUTE DIVORCE: 1. Impotency. 2. Adultery. 3. Voluntary abandonment from bed and board for two years. 4. Imprisonment in the penitentiary for two years, the sentence being for seven years or longer. 5. The commission of the crime against nature. 6. Habitual drunkenness. 7. In favour of the husband, when the wife was pregnant at the time of marriage without his knowledge or agency. 8. In favour of the wife, when the husband has committed actual violence on her person attended with danger to life or health, or when from his conduct there is reasonable apprehension of such violence. LIMITED DIVORCES.--Decrees of separation from bed and board are granted to either spouse on the ground of cruelty. REMARRIAGE.--On February 13, 1903, an act was approved making it unlawful for either party to marry again after a decree of divorce has been granted, until after the expiration of the time allowed for taking an appeal (sixty days from the date of the decree), as well as during the pendency of an appeal, if one is taken. ALASKA. In the Territory of Alaska marriage is deemed a civil contract. Marriages may be solemnized before a qualified clergyman, judge or magistrate. Marriage is forbidden between persons who are related to each other within, but not including, the fourth degree of consanguinity. These degrees are computed according to the rules of the Roman Law. DIVORCE.--The following are legal causes for an absolute divorce: Impotency existing at the time of marriage and continuing to the commencement of the suit; adultery; conviction of felony; wilful desertion continued for the period of two years, or more; cruel and inhuman treatment calculated to impair health or endanger life; and gross and habitual drunkenness. ARIZONA. MARRIAGE.--In this newly admitted State marriage is treated as a purely civil contract. A male must be at least eighteen and a female at least fourteen years of age to lawfully contract marriage. The consent of the parents is required in the case of males under 21 and females under 18. CONSANGUINITY AND AFFINITY.--All marriages between parents and children, including grandparents and grandchildren of every degree; between brothers and sisters of the half as well as the whole blood; between uncles and nieces, aunts and nephews; and between first cousins are declared to be incestuous and void. The preceding paragraph extends to illegitimate as well as legitimate children and relations. NEGROES, MONGOLIANS AND INDIANS.--Marriage between whites and negroes, between whites and Mongolians, or between whites and Indians are absolutely void. PRELIMINARIES.--A marriage license is required. CELEBRATION.--Marriage may be concluded before any minister of the Gospel, judge of a court of record, or justice of the peace. CAUSES FOR ABSOLUTE DIVORCE: 1. When adultery has been committed by either husband or wife. 2. When one of the parties was physically incompetent at the time of marriage. 3. When the husband or wife is guilty of excesses, cruel treatment, or outrages toward the other. 4. In favour of the husband, when the wife shall have voluntarily left his bed or board for the space of six months with the intention of abandonment. 5. In favour of the wife, when the husband shall have left her for six months with the intention of abandonment. 6. For habitual intemperance. 7. Wilful neglect to provide for his wife the necessaries and comforts of life for six months. 8. When the husband shall have been taken in adultery with another woman. 9. In favour of either husband or wife, when the other shall have been convicted, after marriage, of a felony, and imprisonment in any prison. ARKANSAS. The minimum age for marriage is 17 for males; 14 for females. Parental consent is required for males under 21 years and females under 18 years of age. The prohibited degrees are the same as in Alabama. CAUSES FOR ABSOLUTE DIVORCE: 1. Impotency. 2. Desertion for one year. 3. Previous existing marriage. 4. Conviction of felony or infamous crime. 5. Habitual drunkenness continued for one year. 6. Cruel and barbarous treatment endangering life. 7. Indignities which render condition and cohabitation intolerable. 8. Adultery. LIMITED DIVORCE.--Limited divorces are granted for the same causes. CALIFORNIA. MARRIAGE.--Marriage is defined as a personal relation arising out of a civil contract, to which the consent of parties capable of making it is necessary. Consent alone will not constitute marriage; it must be followed by a solemnization authorized by the code. A male must be at least eighteen and a female at least fifteen to conclude marriage. Parental consent is required if the male is under twenty-one years or the female under eighteen years. Such consent is not required if the minor has been previously lawfully married. IMPEDIMENTS.--Marriages between parents and children, ancestors and descendants of every degree, and between brothers and sisters of the half as well as the whole blood, and between uncles and nieces or aunts and nephews are incestuous and void, whether the relationship is legitimate or illegitimate. Marriages between white persons and mulattoes or between white persons and Mongolians are prohibited. CELEBRATION.--Marriages may be celebrated before any justice of the supreme court, any judge of the superior court, any justice of the peace; or before a priest or minister of the Gospel of any sect. HUSBAND AND WIFE.--A married woman may acquire, hold and control property of every description the same as a single woman. DIVORCE.--The following are legal causes for an absolute divorce: Adultery; extreme cruelty; wilful desertion; wilful neglect; habitual intemperance; and conviction by either party of a felony. All decrees of divorce are first granted _nisi_, and an absolute or final decree cannot be secured until one year after the entry of the decree _nisi_. Marriages may be annulled on the following grounds: That the party petitioning for annulment was under age at the date of marriage; that the former husband or wife of either party was living and the former marriage undissolved at the time of the marriage in question; that one of the parties was of unsound mind when the marriage was concluded; that the marriage was procured by fraud; that the marriage was procured by coercion; that at the time of the marriage one of the parties was impotent, and such physical incapacity continues to the date of bringing the suit for annulment. COLORADO. MARRIAGE.--Marriage is a civil contract. The minimum marriageable age for males and for females has not been fixed by statute. Parental consent is required for males under 21 years or for females under 18 years. IMPEDIMENTS.--All marriages between parents and children, including grandparents and grandchildren, of every degree; between brothers and sisters of the half as well as of the whole blood; and between uncles and nieces and aunts and nephews are declared to be incestuous and void. This provision applies to illegitimate as well as to legitimate children. The statute contains a provision that persons living in that portion of the State acquired from Mexico are permitted to marry according to the custom of that country. No person can lawfully conclude marriage within one year after divorce. Marriages are also forbidden between whites and negroes or mulattoes. A marriage license is required. ABSOLUTE DIVORCE: 1. Impotency. 2. A husband or wife living. 3. Adultery. 4. Desertion for one year. 5. Cruelty. 6. Failure to support for one year. 7. Habitual drunkenness for one year. 8. Conviction of felony. DISTRICT OF COLUMBIA. MARRIAGE.--A civil contract. The minimum age for males is 16 years, for females 14 years. The consent of the father or mother is necessary in marriages of males under the age of twenty-one years, and of females under the age of eighteen years, unless the party under age has been previously lawfully married. IMPEDIMENTS.--A man shall not marry his grandmother, grandfather's wife, wife's grandmother, father's sister, mother's sister, mother, stepmother, wife's mother, daughter, wife's daughter, son's wife, sister, son's daughter, daughter's daughter, son's son's wife, daughter's son's wife, wife's son's daughter, wife's daughter's daughter, brother's daughter, sister's daughter. A woman shall not marry her grandfather, grandmother's husband, husband's grandfather, father's brother, mother's brother, father, stepfather, husband's father, son, husband's son, daughter's husband, brother, son's son, daughter's son, son's daughter's husband, daughter's daughter's husband, husband's son's son, husband's daughter's son, brother's son, sister's son. CELEBRATION.--Marriage may be solemnized before a judge of any court of record, or any justice of the peace, or by any minister or ordained person who has furnished proof of his official capacity to the Supreme Court of the District of Columbia. Licenses to marry are issued by the clerk of the Supreme Court upon an affidavit showing that the contracting parties are competent and that all the requirements of law have been complied with. DIVORCE.--There is only one cause for a divorce, namely, adultery. A judicial separation or divorce from bed and board may be granted because of cruelty, unjustifiable desertion or drunkenness. Marriages procured by fraud or coercion, or between parties incapable by reason of insanity or non-age of concluding the contract, can be annulled. Petitioners in matrimonial causes must have been bona fide residents of the District of Columbia before instituting proceedings. CONNECTICUT. MARRIAGE.--No age is fixed by statute at which minors are capable of contracting marriage. The parents or guardians must give consent in writing to the registrar before a license is issued if either party is a minor. CONSANGUINITY AND AFFINITY.--No man shall marry his mother, grandmother, daughter, granddaughter, sister, aunt, niece, stepmother or stepdaughter; no woman shall marry her father, grandfather, son, grandson, brother, uncle, nephew, stepfather or stepson. All such marriages are declared to be incestuous. CELEBRATION.--Any ordained clergyman of any State, any judge or justice of the peace may solemnize marriage. No special form of celebration is required. ANNULMENT.--Whenever, from any cause, any marriage is void the superior court has jurisdiction, upon complaint, to pass a decree declaring it so. LEGITIMACY OF CHILDREN.--Children born before marriage whose parents afterwards intermarry are deemed legitimate and inherit equally with other children. DIVORCE.--The Superior Court has exclusive jurisdiction and may grant absolute divorce to any man or woman for the following offences committed by the other: Adultery, fraudulent contract, wilful desertion for three years with total neglect of duty, seven years' absence unheard from, habitual intemperance, intolerable cruelty, sentence to imprisonment for life, or any infamous crime involving a violation of conjugal duty and punishable by imprisonment in State prison. Parties divorced may marry again. There is no limited divorce recognized by the laws of Connecticut. DELAWARE. MARRIAGE.--While no age is fixed by statute as to when males or females may conclude marriage, in case of a marriage under the age of 18 years for males and 16 years for females a divorce can be obtained for fraud for want of age, in the absence of voluntary ratification after reaching that age. Parental consent is required for males under 21 years and females under 18 years. IMPEDIMENTS.--Degrees of consanguinity: A man may not marry his mother, father's sister, mother's sister, sister, daughter or the daughter of his son or daughter. A woman may not marry her father, father's brother, mother's brother, brother, son, or the son of her son or daughter. Degrees of affinity: A man may not marry his father's wife, son's wife, son's daughter, wife's daughter, or the daughter of his wife's son or daughter. A woman may not marry her mother's husband, daughter's husband, husband's son, or the son of her husband's son or daughter. Marriages between whites and negroes or mulattoes are prohibited. CAUSES FOR DIVORCE.--They are adultery, bigamy, desertion for two years, habitual drunkenness for two years, extreme cruelty, or conviction after marriage of a crime, followed by continuous imprisonment for two years. The causes for divorce from bed and board are the same, with the addition of one other, namely, hopeless insanity of the husband. A marriage may be annulled for any of the following causes, existing at the time of the marriage: Incurable physical impotency; consanguinity; a former husband or wife living at the time of the marriage; fraud, force or coercion; insanity of either party; minority of either party, unless the marriage be confirmed after reaching proper age, to wit.: wife, 16 years; husband, 18 years. FLORIDA. MARRIAGE.--In order to be valid marriages must be celebrated before a qualified clergyman, judge, magistrate or notary public. Parties must be of sound mind, and the male at least seventeen years of age and the female at least fourteen years of age. DIVORCE.--Absolute divorce dissolving a marriage is granted by the courts for the following causes: 1. That the parties are within the degrees prohibited by law. 2. That the defendant is naturally impotent. 3. That the defendant has been guilty of adultery. 4. Extreme cruelty by defendant to complainant. 5. Habitual indulgence by defendant in violent and ungovernable temper. 6. Habitual intemperance of defendant. 7. Wilful, obstinate and continued desertion by defendant for one year. 8. That defendant has obtained a divorce in any other State or country. 9. That either party had a husband or wife living at the time of marriage. Judicial separations or divorces from bed and board are not granted in Florida. The petitioner called the complainant must have resided in the State two years, except where the defendant has been guilty of the act of adultery in the State, then any citizen of the State may obtain a divorce at any time, and the two years' residence shall not be required of complainant. A suit of divorce is commenced by a bill in chancery, and the general chancery practice of the State is followed throughout. A decree of divorce does not render illegitimate children born of the marriage, except in the case of a decree obtained on the ground that one of the parties had a previous spouse living at the time of the marriage. GEORGIA. MARRIAGE.--The marriageable age for males begins at 17 years and for females at 14 years. Females under 18 years of age require parental consent. To be able to contract marriage, a person must be of sound mind, of legal age of consent, and labouring under neither of the following disabilities: 1. Previous marriage undissolved. 2. Nearness of relationship by blood or marriage. 3. Impotency. To constitute an actual contract of marriage the parties must be consenting thereto voluntarily, and without any fraud practiced upon either. IMPEDIMENTS.--Marriages between whites and persons of African descent are prohibited. A man shall not marry his stepmother, or mother-in-law, or daughter-in-law, or stepdaughter, or granddaughter of his wife. A woman shall not marry her corresponding relatives. Marriage is forbidden between ascendants and descendants. Any marriage within the Levitical degrees is a criminal offense. CELEBRATION.--Marriage is a civil contract and no form of solemnization is prescribed by statute. DIVORCE.--There are two forms of divorce in Georgia, a total divorce and a divorce from bed and board. The causes for total divorce are: 1. Intermarriage by persons within the prohibited degrees of relationship. 2. Mental incapacity at time of marriage. 3. Impotency at time of marriage. 4. Force, menaces, duress or fraud in obtaining marriage. 5. Pregnancy of wife at time of marriage, unknown to husband. 6. Adultery in either party after marriage. 7. Wilful and continued desertion for term of three years. 8. Conviction for an offense involving moral turpitude where penalty is two years or more in penitentiary. 9. In cases of cruel treatment, or habitual intoxication, jury may grant either total or partial divorce. IDAHO. MARRIAGE.--The marriageable age for males begins at 18 years and for females at the same age. IMPEDIMENTS.--Marriage is prohibited between ascendants and descendants of every degree, and between brothers and sisters of the half as well as the whole blood, and between uncles and nieces, or aunts and nephews, whether the relationship is legitimate or illegitimate. Marriage of whites with negroes or mulattoes is also prohibited. A marriage license is required. CELEBRATION.--The law prescribes no particular form of solemnization, but the parties must declare in the presence of the celebrant that they take each other as husband and wife. Two witnesses must be present. CAUSES FOR ABSOLUTE DIVORCE: 1. Adultery. 2. Extreme cruelty. 3. Wilful desertion for one year. 4. Wilful neglect for one year. 5. Habitual intemperance for one year. 6. Conviction of felony. 7. Permanent insanity. There is no limited form of divorce recognized. DEFENCES: 1. Collusion. 2. Condonation. 3. Recrimination. ILLINOIS. MARRIAGE.--To marry with parental consent, males must be at least 18 years and females 16 years of age; without such consent, males must be at least 21 years and females 18 years. Marriage is a civil contract and may be celebrated before a qualified clergyman or magistrate. IMPEDIMENTS.--Marriages between parents and children, including grandparents and grandchildren of every degree, between brothers and sisters of the half as well as of the whole blood, between uncles and nieces, aunts and nephews, and between cousins of the first degree are declared to be incestuous and void. This includes illegitimate as well as legitimate children and relations. CAUSES FOR ABSOLUTE DIVORCE: 1. When either party at the time of marriage was and continues to be naturally impotent. 2. When he or she had a wife or husband living at the time of such marriage. 3. When either party has committed adultery subsequent to the marriage. 4. When either party has wilfully deserted or absented himself or herself from the wife or husband, without any reasonable cause, for the space of two years. 5. When either party has been guilty of habitual drunkenness for the space of two years. 6. When either party has attempted the life of the other by poison or other means showing malice. 7. When either party has been guilty of extreme and repeated cruelty. 8. When either party has been convicted of felony or other infamous crime. Limited divorces are not granted in this State. INDIAN TERRITORY. The laws of marriage and divorce in the Indian Territory are the same as those of Arkansas, except in the matter of marriage impediments, and in a few minor details. By an Act of Congress applicable to all Territories of the United States, marriages within and not including the four degrees of consanguinity, computed according to the civil law, are forbidden. INDIANA. MARRIAGE.--Males must be at least 18 years and females 16 years of age. Marriage is a civil contract which can be celebrated before any qualified clergyman, judge or magistrate. IMPEDIMENTS.--Marriages between ascendants and descendants, or being persons of nearer kin than second cousin, are prohibited. A lawful marriage cannot be concluded between a white person and another person possessed of one-eighth or more of negro blood. CAUSES FOR ABSOLUTE DIVORCE: 1. Adultery. 2. Impotency existing at the time of the marriage. 3. Abandonment for two years. 4. Cruel and inhuman treatment of either party by the other. 5. Habitual drunkenness of either party. 6. The failure of the husband to make reasonable provision for his family for a period of two years. 7. The conviction, subsequent to the marriage, in any country, of either party, of an infamous crime. Limited divorces are granted for husband's desertion, or failure to support his wife. IOWA. MARRIAGE.--A male must be at least 16 and a female 14 to conclude marriage. IMPEDIMENTS.--The prohibited degrees of consanguinity and affinity are the same as those of Illinois. CAUSES FOR ABSOLUTE DIVORCE: 1. Against the husband when he has committed adultery subsequent to the marriage. 2. When he wilfully deserts his wife and absents himself without a reasonable cause for the space of two years. 3. When he is convicted of a felony after the marriage. 4. When, after marriage, he becomes addicted to habitual drunkenness. 5. When he is guilty of such inhuman treatment as to endanger the life of his wife. 6. Against the wife for the causes above specified, and also when the wife at the time of the marriage was pregnant by another than her husband, unless such husband have an illegitimate child or children then living, which was unknown to the wife at the time of their marriage. There is no limited divorce allowed in this State. KANSAS. MARRIAGE.--No male under 17 years or female under 15 years of age may contract marriage without the consent of their parents and the probate judge of the district. IMPEDIMENTS.--The prohibited degrees are the same as those of Iowa. Marriage is a civil contract which may be celebrated before a clergyman or magistrate. CAUSES FOR DIVORCE.--Abandonment for one year; adultery; impotency; extreme cruelty; fraudulent contract; habitual drunkenness; gross neglect of duty; the conviction of a felony and imprisonment in the penitentiary therefor subsequent to the marriage. KENTUCKY. MARRIAGE.--A male must be at least 14 years and a female 12 years. Marriages below these ages are prohibited and void, but the courts having general equity jurisdiction may declare void a marriage when the male was under 16, or the female under 14 years of age at the time of the marriage, and the marriage was without the consent of the father, mother, guardian, or other person having the proper charge of his or her person, and has not been ratified by cohabitation after that age. As a civil contract marriage may be celebrated either civilly or religiously. IMPEDIMENTS.--Same as in Kansas, with the addition that marriages between whites and negroes or mulattoes are prohibited. CAUSES FOR DIVORCE: 1. Abandonment for one year. 2. Adulterous cohabitation. 3. Condemnation for felony. 4. Husband's confirmed drunkenness. 5. Wife's habitual drunkenness. 6. Wife's pregnancy by another man. 7. Adultery on part of wife. Plaintiff must have been a resident of the State at least one year. LOUISIANA. MARRIAGE.--A civil contract which may be celebrated by a minister, priest, judge or magistrate. No special form required. Males must be at least 14 years and females 12 years. Parental consent necessary unless minor is twenty-one years of age. The prohibited degrees of consanguinity and affinity are the same as those of all the Southern States. CAUSES FOR DIVORCE: 1. Adultery. 2. Condemnation of either spouse for infamous offence. 3. Habitual intemperance. 4. Cruel treatment. 5. Abandonment. 6. Attempt to kill. 7. Public defamation. 8. Flight from justice. In case of divorce on ground of adultery, the guilty party cannot marry his or her accomplice. MAINE. MARRIAGE.--Minimum age not fixed by statute. Parental consent necessary for males under 21 years and females under 18 years. No special form of marriage ceremony required. IMPEDIMENTS.--Same as those of Massachusetts. CAUSES FOR ABSOLUTE DIVORCE: 1. Adultery. 2. Impotency. 3. Extreme cruelty. 4. Three years' utter desertion. 5. Gross and confirmed habits of intoxication. 6. Cruel and abusive treatment. 7. When the husband being of sufficient ability, grossly, or wantonly and cruelly, refuses to provide suitable maintenance for his wife. The procedure and effects of divorce are almost identical with those of Massachusetts. MARYLAND. MARRIAGE.--The minimum age for marriage is not fixed by statute, but parental consent is required for males under 21 years and females under 16 years. IMPEDIMENTS.--Marriage is prohibited between ascendants and descendants, and collaterally between all persons related by consanguinity and affinity as set forth in the list of impediments in the statement of the law of Massachusetts. Marriage is also forbidden between whites and negroes, or persons of negro descent. FORMALITIES.--Marriage licenses are required, and a ceremonial solemnization is essential. Marriage may be solemnized "by any minister of the Gospel, or other officer or person authorized by the laws of this State to solemnize marriage." CAUSES FOR ABSOLUTE DIVORCE: 1. The impotence of either party at the time of the marriage. 2. Any cause which renders a marriage null _ab initio_. 3. Adultery. 4. Abandonment continued uninterruptedly for at least three years. 5. When the woman before marriage has been guilty of illicit carnal intercourse with another man, the same being unknown to her husband at the time of the marriage. Limited divorces granted for cruelty of treatment. All divorces are at first granted _nisi_--provisionally--to become absolute on application six months afterward. MASSACHUSETTS. MARRIAGE.--The minimum age for marriage is not fixed by law, but males under 21 years and females under 18 years must have parental consent. IMPEDIMENTS.--No man shall marry his mother, grandmother, daughter, granddaughter, stepmother, sister, grandfather's wife, son's wife, grandson's wife, wife's mother, wife's grandmother, wife's daughter, wife's granddaughter, brother's daughter, sister's daughter, father's sister or mother's sister. No woman shall marry her father, grandfather, son, grandson, stepfather, brother, grandmother's husband, daughter's husband, granddaughter's husband, husband's father, husband's grandfather, husband's son, husband's grandson, brother's son, sister's son, father's brother or mother's brother. In all cases in which the relationship is founded on marriage the prohibition continues, notwithstanding the dissolution by death or divorce of the marriage by which the affinity is created, unless the divorce is for a cause which shows such marriage to have been originally unlawful or void. FORMALITIES.--Marriage may be solemnized by a minister of the Gospel, a duly qualified rabbi, or a justice of the peace. No special form of ceremony is required. CAUSES FOR ABSOLUTE DIVORCE: 1. Adultery. 2. Impotency. 3. Extreme cruelty. 4. Utter desertion continued for three consecutive years next prior to the filing of the libel. 5. Gross and confirmed habits of intoxication caused by the voluntary use of intoxicating liquor, opium or other drugs. 6. Cruel and abusive treatment. 7. On the libel of the wife, when the husband, being of sufficient ability, grossly, or wantonly and cruelly, refuses or neglects to provide suitable maintenance for her. 8. When either party has separated from the other without his or her consent, and has united with a religious sect that professes to believe the relation of husband and wife void or unlawful, and has continued united with such sect or society for three years, refusing during that term to cohabit with the other party. 9. When either party has been sentenced to confinement at hard labour for life or for five years or more in the State prison, or in jail, or house of correction. ALIMONY.--Temporary and permanent alimony may be granted to the wife. FORM OF DECREE.--Decrees of divorces are in the first instance _nisi_, and become absolute six months afterward upon application; unless the court for sufficient cause, on the petition of any interested party, shall otherwise order. MICHIGAN. MARRIAGE.--The minimum age for males is 18 years and for females 16 years. Parental consent is necessary for a female under 18 years. PROHIBITED DEGREES.--Same as in Massachusetts, with the exception that marriages between first cousins are prohibited in Michigan. FORMALITIES.--License is required. No particular form of celebration prescribed. Marriage may be solemnized by any qualified clergyman, judge or justice of the peace. CAUSES FOR DIVORCE: 1. Adultery. 2. Impotency at time of marriage. 3. Sentence of either party to prison for three years or more. 4. Desertion continued two years. 5. Habitual drunkenness. 6. In the court's discretion, a divorce may be granted to any resident whose husband or wife has obtained a divorce in another State. Limited or absolute divorces may also be granted for extreme cruelty; utter desertion for two years; and wanton failure of husband to support his wife. MINNESOTA. MARRIAGE.--The minimum age for males is 18 years, for females 15 years. Parental consent is required for marriage of male under 21 years or female under 18 years. The prohibited degrees of consanguinity and affinity are the same as in Michigan. No particular form of marriage ceremony is prescribed, but a license is necessary. CAUSES FOR DIVORCE: 1. Adultery. 2. Impotency. 3. Cruel and inhuman treatment. 4. Sentence to State prison. 5. Wilful desertion continued for three years. 6. Habitual drunkenness. Limited divorces are granted to women only on the grounds of husband's cruelty, abandonment, or such conduct on husband's part as makes cohabitation unsafe. MISSISSIPPI. MARRIAGE.--The minimum age for marriage is not fixed by statute. Parental consent is required for males under 21 years and females under 18 years. The prohibited degrees of relationship are the same as in Massachusetts. Marriages of whites with negroes, mulattoes, or persons having more than one-eighth negro blood, and marriages between Mongolians, or persons having more than one-eighth Mongolian blood, are prohibited. Marriage cannot be concluded without a license duly issued. It may be solemnized by either clergyman or magistrate. CAUSES FOR DIVORCE: 1. Relationship within prohibited degrees. 2. Impotency. 3. Adultery. 4. Sentence to penitentiary. 5. Wilful desertion continued two years. 6. Habitual drunkenness. 7. Pregnancy of the wife at marriage, by another man, unknown to husband. 8. Habitual cruelty. 9. If either party had another husband or wife at time of second marriage. 10. Insanity. 11. Habitual use of opium, morphine or other drug. Limited divorces are not granted. MISSOURI. MARRIAGE.--The minimum age at which marriage can be concluded is 15 years for males and 12 years for females. Parental consent is necessary for males under 21 years or females under 18 years. PROHIBITED DEGREES.--Marriage is forbidden between ascendants and descendants, between brothers and sisters of the half as well as of the whole blood, and between uncles and nieces, and aunts and nephews. This applies to legitimate or illegitimate kindred. Marriage is also prohibited between whites and negroes. FORMALITIES.--No particular form of marriage is prescribed, but a license is necessary. CAUSES FOR DIVORCE: 1. Impotency. 2. Adultery. 3. Absence without reasonable cause for one year. 4. Former marriage undissolved. 5. Conviction of felony or infamous crime. 6. Habitual drunkenness. 7. Cruel treatment. 8. Intolerable indignities. 9. Vagrancy of husband. 10. Conviction prior to marriage by either party of felony or infamous crime, unknown to the other spouse. 11. Pregnancy at time of marriage of wife by another man. Upon granting a divorce the court will make such direction concerning custody of children, and maintenance of wife, as justice may require. MONTANA. MARRIAGE.--Males cannot marry under 18 years and females under 16 years. If either party is a minor parental consent is required. IMPEDIMENTS.--Marriages between ancestors and descendants of every degree, between brothers and sisters of whole or half blood, between uncles and nieces, or aunts and nephews, legitimate or illegitimate, are forbidden. FORMALITIES.--Outside of license, no particular formalities are prescribed. CAUSES FOR DIVORCE: 1. Adultery. 2. Extreme cruelty. 3. Wilful desertion. 4. Wilful neglect. 5. Habitual intemperance. 6. Conviction of felony. NEBRASKA. MARRIAGE.--Males must be at least 18 and females 16 years of age to conclude marriage. Parental consent is required for males under 21 years and females under 18 years. IMPEDIMENTS.--Marriages between ascendants and descendants, between brothers and sisters of whole or half blood, between uncles and nieces, aunts and nephews, and first cousins of the whole blood, are prohibited. CELEBRATION.--A marriage license is necessary, but no particular form of celebration is prescribed. GROUNDS FOR DIVORCE: 1. Adultery. 2. Impotency at time of marriage. 3. Sentence to three years' imprisonment or more. 4. Abandonment for two years. 5. Habitual drunkenness. 6. Extreme cruelty. 7. Utter desertion. 8. When husband unreasonably and cruelly refuses to provide maintenance for wife. Limited divorce may be obtained on the three last grounds. NEVADA. MARRIAGE.--Males cannot marry under 18 years or females under 16 years. Parental consent is required for males under 21 years and females under 18 years. PROHIBITED DEGREES.--Marriages between persons nearer of kin than second cousins of the whole blood or cousins of the half blood. FORMALITIES.--No particular form prescribed, but it is unlawful for clergyman or magistrate to solemnize marriage without having a license presented. CAUSES FOR DIVORCE: 1. Impotency at time of marriage. 2. Adultery. 3. Wilful desertion for one year. 4. Conviction of felony or infamous crime. 5. Habitual drunkenness. 6. Extreme cruelty. 7. Neglect of husband to provide necessaries of life. Upon granting a decree of divorce the court shall make such other direction regarding disposition of property and custody of children as justice may demand. NEW HAMPSHIRE. MARRIAGE.--A male cannot marry under 14 years or a female under 13 years. There is no statutory requirement for parental consent. PROHIBITED DEGREE.--Same as in Massachusetts. Common law marriage is recognized. FORMALITIES.--License is necessary, but no particular form of ceremony is required. CAUSES FOR DIVORCE: 1. Impotency. 2. Adultery. 3. Extreme cruelty. 4. Conviction of crime punishable in this State for more than one year. 5. Treatment detrimental to health. 6. Treatment to endanger reason. 7. Three years' absence. 8. Habitual drunkenness. 9. When either party joins a sect opposed to cohabitation between husband and wife. 10. Desertion for three years. Upon granting a decree of divorce the court will make such order as to maintenance of wife and custody of children as the facts shall call for. NEW JERSEY. MARRIAGE.--No minimum age is fixed for marriage. Males under 21 years and females under 18 years must have consent of parents. IMPEDIMENTS.--A man shall not marry any of his ancestors or descendants, or his sister, or the daughter of his brother or sister, or the sister of his father or mother, whether such collateral kindred be of the whole or half blood. A woman shall not marry any of her ancestors or descendants, or her brother, or the son of her brother or sister, or the brother of her father or mother, whether such collateral kindred be of the whole or half blood. FORMALITIES.--A marriage license is necessary only for non-residents of State. No special form of ceremony is prescribed, except that when solemnized by a religious society it must be according to the rules and usages of such society. CAUSES FOR DIVORCE: 1. Adultery. 2. Wilful, continued and obstinate desertion for the term of two years. 3. When either party was, at the time of marriage, incapable of consenting thereto and the marriage has not been subsequently ratified. LIMITED DIVORCES. Granted for 1. Desertion. 2. Adultery. 3. Extreme cruelty. In every case, except for extreme cruelty, the party asking for a limited divorce must allege conscientious scruples against applying for an absolute divorce. JURISDICTION.--The Court of Chancery has exclusive jurisdiction in divorce matters. ANNULMENT.--A marriage may be annulled because: 1. One of the parties had another wife or husband living at the time of marriage. 2. When the parties are within the degrees prohibited by law. NEW MEXICO. MARRIAGE.--A male must be at least 18 years and a female 15 years to conclude marriage. Parental consent is required for males under 21 years and females under 18 years. PROHIBITED DEGREES.--Marriage between ascendants and descendants, between brothers and sisters, of whole or half blood, between uncles and aunts, and nieces and nephews are void. FORMALITIES.--License is necessary. No special form of ceremony required. The marriage may be solemnized by an ordained clergyman, civil magistrate or religious society. GROUNDS FOR DIVORCE: 1. Adultery. 2. Cruel and inhuman treatment. 3. Abandonment. 4. Habitual drunkenness. 5. Neglect of husband to support his wife. 6. Impotency. 7. Pregnancy by wife, at the time of marriage, by another than her husband, without husband's knowledge. 8. Conviction and imprisonment for a felony. NEW YORK. MARRIAGE.--Marriage is a civil contract, to which the consent of the parties capable in law of making the contract is essential. Minors become capable of contracting marriage upon completing their eighteenth year of age. A marriage is void from the time its nullity is declared by a court of competent jurisdiction if either party thereto was under the age of eighteen at the time it was concluded. IMPEDIMENTS.--Marriage between an ancestor and a descendant, between a brother and sister, of either the whole or half blood, between an uncle and niece, or an aunt and nephew, whether the relatives are legitimate or illegitimate, is incestuous and void. The defeated party in an action of divorce against whom a decree has been granted on the grounds of adultery is prohibited from marrying again during the lifetime of the successful party. However, the court which granted the decree has power so to modify it as to permit such marriage after five years. COMMON LAW MARRIAGE.--By an act which became effective April 12, 1901, the law of New York has required a contract of marriage to be signed by the parties and witnesses acknowledged and recorded. Since that time a "common law" marriage, or one established simply by cohabitation and reputation, has not been recognized. MARRIAGE LICENSES.--The legislature of New York, at its session in 1907, passed an act providing for marriage licenses, which became effective January 1, 1908. Written consent of both parents or guardian must be given to the town or city clerk before he may issue license. If residents of the State, they must personally appear and execute the consent; if non-residents, it must be executed, acknowledged and certified. WHO MAY SOLEMNIZE MARRIAGE.--A clergyman or minister of any religion, or the leader, or the two assistant leaders, of the Society for Ethical Culture in New York City, justices and judges of courts of record, judges of the county courts, justices of the peace, mayors, recorders and aldermen of cities. MARRIAGE BY CONTRACT.--A lawful marriage may be concluded by a written contract of marriage signed by both parties, and at least two witnesses who shall subscribe the same, stating the place of residence of each of the parties and witnesses and the date and place of marriage, and acknowledged by the parties and witnesses in the manner required for the acknowledgment of a conveyance of real estate to entitle the same to be recorded. Such contract shall be filed, within six months after its execution, in the office of the clerk of the town or city in which the marriage was solemnized. JEWS AND QUAKERS.--Marriages among Quakers or Jews may be solemnized in the manner and according to the regulations of their respective societies. ENCOURAGEMENT OF MARRIAGE.--No marriage shall be deemed or adjudged invalid, nor shall the validity thereof be in any way affected on account of any want of authority in any person solemnizing the same, if consummated with a full belief on the part of the persons so married, or either of them, that they were lawfully joined in marriage. DIVORCE.--The only cause for absolute divorce is the adultery of either party. JURISDICTION.--The Supreme Court has exclusive original jurisdiction of actions for divorce. In an action for absolute divorce, both parties must have been residents of the State when the offense was committed; or must have been married within the State; or the plaintiff must have been a resident when the offense was committed, and also when the action was commenced; or when the offense was committed within the State, the plaintiff must have been a resident when the action was commenced. LIMITED DIVORCE.--A limited divorce, which is equivalent to a judicial separation in England, may be granted because of: 1. The cruel and inhuman treatment of the plaintiff by the defendant. 2. Such conduct, on the part of the defendant toward the plaintiff, as may render it unsafe and improper for the latter to cohabit with the former. 3. The abandonment of the plaintiff by the defendant. 4. When the wife is plaintiff, the neglect or refusal of the defendant to provide for her. In actions for limited divorce both parties must have been residents of the State when the action was commenced; or when the marriage took place within the State, the plaintiff must have been a resident thereof, when the action was commenced; or when the marriage took place out of the State, the parties must have become residents thereof, and have continued to be such at least one year, and the plaintiff must have been a resident when the action was commenced. ANNULMENT OF MARRIAGE.--An action to procure a decree declaring the marriage contract void and annulling the marriage may be maintained on any of the following grounds: 1. When either party was under the age of legal consent. 2. When either party was an idiot or lunatic. 3. When either party was physically incapable of entering into the marriage state, and such incapacity continues, and is incurable. 4. When the consent of either party was obtained by force, duress or fraud. 5. When either party had a former wife or husband living, the former marriage being in force. By a woman plaintiff on the following grounds: 1. Where the plaintiff had not attained the age of 16 years at the time of marriage. 2. When the marriage took place without the consent of the parent, guardian, or other person having legal charge of her. 3. Where it was not followed by consummation or cohabitation, and was not ratified after attaining the age of 16 years. DEFENCES IN DIVORCE ACTIONS.--Divorce will not be granted for the cause of adultery: 1. When the offense alleged has been condoned or forgiven by plaintiff. 2. When the adultery was committed by the procurement, connivance, privity or consent of plaintiff. 3. If five years have elapsed since the plaintiff discovered the defendant's guilt. 4. If there is existing any decree of any competent of any State or Territory of the United States granting an absolute divorce to the defendant and against the plaintiff. 5. If it appears that the plaintiff has also committed adultery. CUSTODY OF CHILDREN.--During the pendency of an action for divorce, or on final judgment, the court may give such directions as justice requires for the custody, care and education of any of the children of the marriage. ALIMONY.--The court has power during the pendency of an action for divorce to grant a woman plaintiff or defendant such allowance out of her husband's estate as may be necessary and just for her support, and also that she may be able to procure counsel to prosecute or defend the suit in her behalf. If the wife becomes successful in the action the court may in its discretion award her permanent alimony. The amount of alimony in all cases depends upon the wife's needs, her social status, and her husband's ability to make provision for her. FORM OF DIVORCE DECREE.--Decrees are first entered _nisi_, or provisionally, and cannot become absolute until the expiration of three months after the entry of the decree _nisi_. NORTH CAROLINA. MARRIAGE.--A male becomes capable of marrying at 16 years and a female at 14 years, but both if under 18 years require parental consent. IMPEDIMENTS.--Marriage is prohibited between persons nearer of kin than first cousins of the whole or half blood. So is marriage between whites and negroes or Indians, or between whites and persons of negro or Indian descent to the third generation, inclusive. CAUSES FOR DIVORCE: 1. Husband's fornication or adultery. 2. Wife's adultery. 3. If either party at time of marriage was and still is naturally impotent. 4. Wife's pregnancy at time of marriage by another man, without husband's knowledge. LIMITED DIVORCE.--A limited divorce may be obtained for the following causes: 1. If either party abandons his or her family. 2. If either party maliciously turns the other out of doors. 3. Cruel or barbarous treatment by one party endangering life of the other. NORTH DAKOTA. MARRIAGE.--No male can conclude marriage under 18 years of age or female under 15 years of age. IMPEDIMENTS.--Marriage is prohibited between persons nearer of kin than second cousins of the whole blood. FORMALITIES.--License necessary. No particular form of ceremony is required, but the parties must express consent in presence of person solemnizing the marriage, and of at least one witness. CAUSES FOR DIVORCE: 1. Adultery. 2. Extreme cruelty. 3. Wilful desertion for one year. 4. Wilful neglect for one year. 5. Habitual intemperance for one year. 6. Conviction of felony. Plaintiff must have been in good faith, a resident of the State for six months before filing petition, and either a citizen of the United States or a person who has declared his or her intention to become such. OHIO. MARRIAGE.--To marry, a male must be at least 18 years and a female 16 years of age. Parental consent is required for males under 21 years and females under 18 years. IMPEDIMENTS.--Marriage between persons nearer of kin than second cousins is forbidden. FORMALITIES.--License is necessary unless banns be published in presence of congregation on two different days of public worship. No particular form of ceremony is required. The marriage may be solemnized by any ordained minister licensed by the State to perform marriages, or a justice of the peace in his county. CAUSES FOR DIVORCE: 1. Upon proof that either party was already married at time of the marriage sought to be dissolved. 2. Wilful absence of one party from the other for three years. 3. Adultery. 4. Impotency. 5. Extreme cruelty. 6. Fraudulent contract. 7. Any gross neglect of duty. 8. Habitual drunkenness for three years. 9. Imprisonment in a penitentiary. 10. Procurement of a divorce without the State. ACTIONS FOR SEPARATE MAINTENANCE.--A wife may sue for separate maintenance because of: 1. Adultery. 2. Gross neglect of duty. 3. Abandonment without good cause. 4. Habitual drunkenness. 5. Sentence to imprisonment in a penitentiary. EFFECTS OF DIVORCE.--If the divorce is granted to the wife, because of the aggression of the husband, she shall be allowed such alimony out of her husband's property as the court deems reasonable. If the husband secures a divorce, on the aggression of the wife, he shall be allowed such alimony out of the wife's property as the court deems reasonable. The granting of a divorce does not affect the legitimacy of the children of the parties. Upon granting a divorce, the court shall make such order for the care and support of the children as is just and proper. OKLAHOMA. MARRIAGE.--The minimum age for marriage and the rule as to parental consent are the same as that stated for Nebraska. IMPEDIMENTS.--Same as in Nebraska. FORMALITIES.--Same as in Nebraska. CAUSES FOR DIVORCE: 1. Adultery. 2. Former husband or wife living. 3. Abandonment for one year. 4. Impotency. 5. Pregnancy by wife at time of marriage by another man. 6. Extreme cruelty. 7. Fraudulent contract. 8. Habitual drunkenness. 9. Gross neglect of duty. 10. Conviction of felony. ACTION FOR SEPARATE MAINTENANCE.--This action may be maintained for any of the causes sufficient for divorce. OREGON. MARRIAGE.--A male is capable of marrying at 18 years, a female at 15 years. Parental consent is required for males under 21 years and females under 18 years. IMPEDIMENTS.--Marriages between first cousins of the whole or half blood or relatives nearer of kin are prohibited. Marriages between whites and negroes or Mongolians, or persons of one-fourth or more negro or Mongolian blood. CAUSES FOR DIVORCE: 1. Impotency. 2. Adultery. 3. Conviction of felony. 4. Habitual drunkenness. 5. Wilful desertion for one year. 6. Cruel and inhuman treatment, or personal indignities rendering life burdensome. PENNSYLVANIA. MARRIAGE.--The minimum age for marriage is not fixed by statute. Both males and females require parental consent to marry under 21 years of age. IMPEDIMENTS.--A man may not marry his mother, father's sister, mother's sister, sister, daughter, granddaughter, father's wife, son's wife, son's daughter, wife's daughter, daughter of wife's son or daughter. A woman may not marry her father, father's brother, mother's brother, brother, son, grandson, mother's husband, daughter's husband, husband's son, son of her husband's son or daughter. By the act effective January 1, 1902, marriage is prohibited between persons who are of kin of the degree of first cousins. FORMALITIES.--License is necessary unless there is a publication of banns. The parties may solemnize their own marriage by obtaining from the clerk of the orphans' court a formal declaration of their right to do so instead of a license. Marriage may be solemnized by any minister of the Gospel, justice of the peace, or alderman, or by the parties themselves. CAUSES FOR ABSOLUTE DIVORCE: 1. Natural impotence or incapacity of procreation at time of marriage, and still continuing. 2. Former marriage still subsisting. 3. Adultery. 4. Wilful and malicious desertion for the space of two years. 5. Husband's cruel and barbarous treatment endangering wife's life. 6. Husband having offered such indignities to wife as to render her condition intolerable and life burdensome. 7. Relationship within prohibited degrees. 8. Marriage procured by fraud, force or coercion. 9. Wife's cruel and barbarous treatment of husband. 10. That either of the parties has been convicted as principal or accessory of the crime of arson, burglary, embezzlement, forgery, kidnapping, larceny, murder in first or second degree, voluntary manslaughter, perjury, rape, robbery, sodomy, buggery, treason, or misprison of treason, and has been sentenced to prison for more than two years. 11. That either husband or wife is a hopeless lunatic or _non compos mentis_. Confinement for ten years or more in an asylum for the insane is conclusive proof of hopeless insanity. LIMITED DIVORCE.--This may be granted for: 1. Husband turning wife out of doors. 2. Husband's cruel and barbarous treatment of wife. 3. Husband offering such indignities to his wife as to render her condition intolerable and force her to leave his house. Upon hearing any cause for divorce the court may decree either a divorce or a decree of nullity. RHODE ISLAND. MARRIAGE.--No age fixed for marriage. Parental consent required for all minors. IMPEDIMENTS.--Same as in Massachusetts. However, Jews are permitted to marry within degrees permitted by their religion. CAUSES FOR DIVORCE: 1. In case marriage was originally void or voidable by law. 2. When either party is for crime deemed civilly dead. 3. When party may be presumed dead. 4. Impotency. 5. Adultery. 6. Extreme cruelty. 7. Wilful desertion. 8. Continued drunkenness. 9. Neglect or refusal of husband, being able, to support wife. 10. Any other gross misbehaviour and wickedness in either of the parties repugnant to and in violation of the marriage covenant. SOUTH CAROLINA. MARRIAGE.--No age is fixed by law for marriage of minors, nor when parental consent is necessary. IMPEDIMENTS.--Same as to prohibited degrees of kinship as in Massachusetts. Marriages of whites with Indians, negroes, mulattoes, mestizos, or half-breeds, are forbidden. FORMALITIES.--No license is required, and no particular form of ceremony necessary. DIVORCE.--By a provision of the State constitution divorces from the bonds of matrimony are not allowed in South Carolina. Marriages may, however, be annulled for want of consent of either party, or for any other cause showing that at the time of the supposed marriage it was not a contract, provided such contract has not been consummated by cohabitation. SOUTH DAKOTA. MARRIAGE.--Minimum age at which males can marry is 18 years, females 15 years. Parental consent is required for males under 21 years and females under 18 years. PROHIBITED DEGREES.--Same as in Massachusetts. Common law marriages are recognized. Marriage may be solemnized by minister, priest, judge of supreme court or probate court, justice of the peace, mayor, or by the parties themselves making a joint declaration. CAUSES FOR DIVORCE: 1. Adultery. 2. Extreme cruelty. 3. Wilful desertion for one year. 4. Wilful neglect for one year. 5. Habitual intemperance for one year. 6. Conviction of felony. Limited divorces are not granted. TENNESSEE. MARRIAGE.--The lowest age at which males can marry is 16 years, females 14 years. Parental consent is necessary for males under 21 years and females under 18 years. CONSANGUINITY AND AFFINITY.--The prohibited degrees are the same as in Massachusetts. Marriages of whites with negroes, mulattoes or persons of mixed blood are forbidden. A person declared guilty of adultery is forbidden his or her accomplice during the lifetime of the former spouse. FORMALITIES.--License necessary. Marriage ceremony may be religious or civil in form. CAUSES FOR DIVORCE: 1. Natural impotence and incapacity of procreation at time of marriage, and still existing. 2. A previous marriage still subsisting. 3. Adultery. 4. Desertion for two years. 5. Conviction of such crime as renders party infamous. 6. Conviction of felony. 7. Malicious attempt on life of other spouse. 8. Wife's refusal to move with husband into this State, and wilful absence from him for two years. 9. Wife's pregnancy at time of marriage by another person, without husband's knowledge. 10. Habitual drunkenness. LIMITED DIVORCES.--Such relief is granted to a wife only, for the following causes: 1. Cruel and inhuman treatment, rendering it unsafe and improper for continued cohabitation. 2. Such indignities offered to wife as render condition intolerable, and force her to leave husband. 3. Husband's abandonment of wife, or his turning her out of doors, refusing or neglecting to provide for her. TEXAS. MARRIAGE.--Earliest age for males to marry is 16 years; females 14 years. Parental consent required for males under 21 years and females under 18 years. IMPEDIMENTS.--The prohibited degrees of kinship are the same as in New York. Marriage is forbidden between persons of European blood or their descendants and Africans or the descendants of Africans. FORMALITIES.--License required. Marriage may be solemnized by religious or civil ceremony. CAUSES FOR DIVORCE.-- 1. Excesses; cruel treatment. 2. Wife taken in adultery. 3. Wife's abandonment of husband for three years. 4. Husband's desertion with intention of abandonment for three years. 5. When husband abandons wife and lives in adultery. 6. Conviction of felony and imprisonment therefor in State prison. There is no such thing as a limited divorce in this State. UTAH. MARRIAGE.--Males may marry at 14 years and females at 12 years, but if the former are under 21 years and the latter under 18 years parental consent is required. PROHIBITED DEGREES.--Marriage between ascendants and descendants, between brothers and sisters of the whole or half blood, between uncles and nieces, or aunts and nephews, or between any persons related to each other within the fourth degree of consanguinity is prohibited. Marriage is also forbidden between a white person and a negro or Mongolian. FORMALITIES.--After a license has been procured the marriage may be solemnized by a minister or priest, judge of the Supreme or District Court, mayor of a city, or justice of the peace. CAUSES FOR DIVORCE.-- 1. Impotency. 2. Adultery. 3. Wilful desertion for more than one year. 4. Wilful neglect of husband to provide for wife. 5. Habitual drunkenness. 6. Conviction for felony. 7. Cruel treatment. 8. Permanent insanity of defendant. To maintain an action for the last cause the plaintiff must prove that defendant has been adjudged insane at least five years before the beginning of action and that the insanity is incurable. VERMONT. MARRIAGE.--No minimum age is fixed by statute for marriage of minors, but males under 21 years and females under 18 years require consent of parents. IMPEDIMENTS.--The prohibited degrees of consanguinity and affinity are the same as in Massachusetts. FORMALITIES.--License, called in Vermont a "certificate," is necessary. No special form of marriage ceremony is prescribed, except that if solemnized by Quakers the ceremony must be in the form used in Quaker societies. CAUSES FOR DIVORCE.-- 1. Adultery. 2. When either party is sentenced to confinement in the State prison for life, or for three years or more, and is actually confined at the time. 3. Intolerable severity of either party. 4. Wilful desertion for three consecutive years. 5. Absence of either party for seven years without being heard of during that time. 6. Husband's cruel refusal or neglect to provide suitable maintenance for wife. LIMITED DIVORCES.--A limited divorce, which leaves the marriage undissolved, may be granted for any of the causes for which an absolute divorce may be granted. VIRGINIA. MARRIAGE.--A male is deemed capable of marriage at 14 years and a female at 12 years, but for all minors under 21 years parental consent is required. PROHIBITIONS.--Marriage between ascendants and descendants, and between persons nearer of kin than the fourth degree of consanguinity, is prohibited. Marriage between white and colored persons is forbidden. FORMALITIES.--No marriage or attempted marriage, if it took place in this State, can be held valid here unless shown to have been under a license and solemnized according to statute. However, no particular marriage ceremony is prescribed, except that, if solemnized by a religious society, it must be in the manner practiced by such society. CAUSES FOR DIVORCE.-- 1. Adultery. 2. Incurable impotency. 3. Sentence to penitentiary. 4. Conviction of one party (without the knowledge of the other) of an infamous offence before marriage. 5. Flight from justice. 6. Desertion continued for three years. 7. Wife's pregnancy at time of marriage by another man, unknown to husband. 8. Upon proof that prior to marriage wife had been, unknown to husband, a prostitute. LIMITED DIVORCE.--May be granted for: 1. Cruelty. 2. Reasonable apprehension of bodily hurt. 3. Abandonment. 4. Desertion. WASHINGTON. MARRIAGE.--Marriage is a civil contract which may be entered into by males of the age of 21 years and females of the age of 18 years who are otherwise capable. PROHIBITED DEGREES.--Marriage is prohibited between persons nearer of kin than second cousins, whether of the whole or half blood, computing by the rules of the civil law. CELEBRATION.--No particular form of ceremony prescribed, but license is necessary. CAUSES FOR DIVORCE.-- 1. Consent to marriage obtained by force and fraud and no subsequent voluntary cohabitation. 2. Adultery. 3. Impotency. 4. Abandonment for one year. 5. Cruel treatment. 6. Personal iniquities. 7. Habitual drunkenness. 8. Neglect to provide for wife or family. 9. Present imprisonment in penitentiary. 10. Any other cause in the court's discretion if it appears parties should not continue the marriage relation. 11. Incurable chronic mania or dementia existing for ten years or more. WEST VIRGINIA. MARRIAGE.--Males may marry at 18 years and females at 16 years, but parental consent is required for all persons under 21 years of age. PROHIBITED DEGREES.--Same as in the State of Washington. FORMALITIES.--As to issuance of license and celebration, same as in Washington. If a man, having had a child by a woman, afterward intermarries with her, such child is deemed legitimate. CAUSES FOR DIVORCE.-- 1. Adultery. 2. Incurable impotency. 3. Sentence to penitentiary. 4. Conviction before marriage of an infamous offence, unknown to other spouse. 5. Desertion for three years. 6. Pregnancy of wife at time of marriage by another man, unknown to husband. 7. Proof that wife, unknown to husband, had been before marriage a notorious prostitute. Proof that husband, unknown to wife, had been before marriage a licentious person. LIMITED DIVORCES.--Granted for: 1. Cruel treatment. 2. Reasonable apprehension of bodily hurt. 3. Abandonment. 4. Desertion. 5. Habitual drunkenness. WISCONSIN. MARRIAGE.--Males may marry at 18 years and females at 15 years, but parental consent is required for males under 21 years and females under 18 years. PROHIBITED DEGREES.--Marriage is forbidden between persons nearer of kin than first cousins, of the whole or half blood, computing by the rules of the civil law. FORMALITIES.--Since April 29, 1899, a marriage license is required, but no particular form of celebration is necessary. CAUSES FOR DIVORCE.-- 1. Adultery. 2. Impotency. 3. Sentence to imprisonment for three years or more. 4. Wilful desertion for one year. 5. Cruel and inhuman treatment. 6. Wife's intoxication. 7. Husband's habitual drunkenness for one year. 8. Voluntary separation of parties continued for five years. 9. Extreme cruelty. 10. Husband's refusal or wilful neglect to provide for wife. 11. Husband's conduct such as to render it unsafe and improper for wife to live with him. A limited divorce may be granted for all these causes except the first three. WYOMING. MARRIAGE.--A male may marry at 18 years and a female at 16 years. Parental consent is required if either party is a minor. PROHIBITED DEGREES.--Marriage between ascendants and descendants, between brothers and sisters of the whole or half blood, between uncle and niece, or aunt and nephew, and between first cousins, is forbidden. This applies to legitimate or illegitimate kindred, but only to persons related by blood. FORMALITIES.--A license issued by county clerk is necessary. Parties must solemnly declare in the presence of a minister or magistrate, and two witnesses, that they take each other as husband and wife. CAUSES FOR DIVORCE.-- 1. Adultery. 2. Physical incompetence at time of marriage continued to time of divorce. 3. Conviction and sentence for felony. 4. Wilful desertion for one year. 5. Habitual drunkenness. 6. Extreme cruelty. 7. Neglect of husband for one year to provide common necessaries of life. 8. Such indignities as render conditions intolerable. 9. Vagrancy of husband. 10. Conviction before marriage (unknown to other spouse) for felony or infamous crime. 11. Pregnancy of wife by another man at time of marriage, unknown to husband. Limited divorces are not granted in this State. CHAPTER XXVI. DOMINION OF CANADA AND NEWFOUNDLAND. The Dominion of Canada now consists of the Provinces of Alberta, British Columbia, Manitoba, New Brunswick, Nova Scotia, Ontario, Prince Edward Island, Quebec and Saskatchewan, together with certain territories not as yet included in any Province. The Canadian Constitution, similar in principle to that of Great Britain, is embodied in the British North America Act of 1867 (30 Vict. c. 3). This act, which was passed by the Imperial Parliament, created the federation now styled the Dominion of Canada, and assigned to the Dominion Parliament power "to make laws for the peace, order and good government of Canada, in relation to all matters not coming within the classes of subjects by this act assigned exclusively to the Legislatures of the Provinces." One great distinction between the Canadian Constitution and the Constitution of the United States of America is that powers not specifically granted to the Provinces are reserved to the Dominion Government, whereas under the American Constitution powers not specifically granted to the Federal Government are reserved to the States, or to the people. Marriage and divorce are specifically set forth in the Canadian Constitution as a branch of legislation exclusively within the control of the Dominion Parliament, but although forty-three years have passed since the act became operative the Dominion Parliament has so far enacted only two statutes concerning the subject. The first act (May 17, 1882) legalized the marriage of a man with his deceased wife's sister, and the second (May 16, 1890) legalized the marriage of a man with his deceased wife's sister's daughter. The Dominion of Canada shares with Ireland the distinction of having no law permitting a judicial decree of divorce. However, by one clause of the British Act of North America there was preserved in full force the laws and judicial system of the several Provinces until the laws should be repealed or the courts abolished by competent authority. Consequently, four of the nine Provinces, namely, British Columbia, New Brunswick, Nova Scotia and Prince Edward Island, have their individual laws of divorce and divorce courts. Of the eight millions of people living in Canada six millions have no possibility of divorce except by a special act of the Dominion Parliament. The Dominion Parliament has power to grant an absolute divorce for any cause, but it never has done so except for adultery. Divorce petitions or bills are, as a matter of practice, introduced first in the Senate, where there is a standing committee to deal with them. For the Provinces of Ontario, Quebec and Manitoba, and the Northwest and other Territories, the Dominion Parliament is the only authority which can grant an absolute divorce. MARRIAGE.--Legislation concerning the formal requirements and solemnizations of marriage is still within the exclusive authority of the legislatures of the Provinces. As to the impediments which arise from blood and marriage, the law throughout the Dominion of Canada is in agreement with the law of England, which is based upon the 18th chapter of the Book of Leviticus. It is expressly provided by the act, 28 and 29 Vict. c. 64, that every law made or to be made by the legislature of any British possession, "for the purpose of establishing the validity of any marriage or marriages contracted in such possession, shall have and be deemed to have had from the date of the making of such law the same force and effect for the purpose aforesaid within all parts of Her Majesty's dominions as such law may have had or may hereafter have within the possession for which the same was made. Provided that nothing in this law contained shall give any effect or validity to any marriage unless at the time of such marriage both of the parties thereto were, according to the law of England, competent to contract the same." VALIDITY OF FOREIGN DIVORCES.--When the validity of a foreign divorce is considered by the Canadian courts the judges apply the strict rule of refusing to recognize a decree of divorce pronounced by a court within whose jurisdiction the parties had not a bona fide domicile. The courts also hold that a marriage celebrated in Canada between persons domiciled there is in its nature indissoluble except by death or by the act or decree of the Dominion Parliament, or a Canadian court of competent jurisdiction, and that no judgment of a foreign court dissolving such a marriage will be recognized in Canada. This rule invites, and has received, such severe criticism for its injustice that it cannot long be maintained by such tribunals of learning and integrity as the courts of Canada. Suppose a Canadian man and woman domiciled in Toronto should intermarry there, and afterwards acquire a joint domicile of twenty years' duration in New York City. If, after that period, the wife should obtain in the courts of the State of New York a divorce on the grounds of her husband's adultery, and should remarry another man, upon her return to Canada it would be manifestly unjust to treat the divorce and second marriage as null and void. Some of these days the Canadian courts will be called upon to consider the legal effect of a divorce obtained upon statutory grounds in England in a suit between two persons who were married in Canada and at the time of such marriage were domiciled in that country. Perhaps then the rule we have mentioned and criticised will be relaxed. The Island and Colony of Newfoundland, although a British colony in North America, is not yet incorporated as a part of the Dominion of Canada. It has its own governor, legislature and judicial system entirely separate from the Dominion and its own marriage and divorce law. The jurisdiction of Newfoundland extends not only over the island by that name, but also over the whole of the Atlantic coast of Labrador. AGE REQUIREMENTS.--The legal age for marriage in British Columbia, Manitoba, New Brunswick, Nova Scotia, Prince Edward Island, Quebec, the Northwest Territories and Newfoundland is fourteen for a male and twelve for a female. In Ontario both males and females must be at least fourteen years of age. PARENTAL CONSENT.--In British Columbia, Manitoba, Nova Scotia, Prince Edward Island, Quebec, the Northwest Territories and Newfoundland parental consent is necessary for both males and females under twenty-one years of age. In New Brunswick and Ontario parental consent is required for males and females under eighteen years of age. In British Columbia an appeal may be taken to the courts if consent is refused by parent or guardian. CELEBRATION.--Marriages may be solemnized by duly qualified clergymen of every religious denomination, or by a judge, justice of the peace or other magistrate. Unless banns are published a license must be produced for each marriage, and can only be obtained from the proper local authority upon affidavit or declaration of one of the parties to the intended marriage, showing that no legal impediment exists and that the proper consents have been obtained. The competency of a Protestant minister to marry two Roman Catholics in the Province of Quebec was called in question by the leading case of Delphit v. Coté, reported in the Quebec Reports, 20 S. C. 338. The plaintiff, who had been baptized as a member of the Roman Catholic Church, was married to the defendant, who, at the time at least, professed the same belief, by a minister of a Protestant denomination, by virtue of a license issued in due form. Subsequently an ecclesiastical court of the Catholic Church declared the marriage null on the ground that two Roman Catholics could only be married by a Roman Catholic priest. Upon appealing to the civil court for an annulment of the marriage because of the ecclesiastical decree, it was held that the ecclesiastical court was entirely without jurisdiction and that the marriage was in all legal respects good and binding. MARRIAGES WITH INDIANS.--A Christian who marries an aboriginal native or Indian cannot exercise in Canada the right of divorce or repudiation of his wife at will, although following the usages of the tribe or "nation" to which his Indian wife belongs such divorces and repudiations are customary and regular. ANNULMENT OF MARRIAGE.--In any of the Provinces, or in Newfoundland, the courts may annul marriages on the ground of fraud, mistake, coercion, duress or lunacy. FOREIGN MARRIAGES.--The courts of Canada and Newfoundland recognize a marriage concluded in a foreign country as valid if it was performed in accordance with the laws of the foreign country, if each person was competent to marry, according to the laws of the country of his and her citizenship, and if the marriage was not in violation of the general laws and usages of Christendom. ONTARIO.--The High Court of Justice in this Province has jurisdiction where a marriage correct in form is ascertained to be void _de jure_ by reason of the absence of some essential preliminary to declare the same null and void _ab initio_; but nothing short of the most clear and convincing testimony will justify the interposition of the court. As we have observed before, there is no divorce court in the Province. Every married woman is entitled to hold and alienate as her separate property all wages and profits acquired by her in any separate occupation which she may conduct on her separate account. QUEBEC.--This Province, which is composed largely of Roman Catholic inhabitants of French ancestry, treats marriage as a religious contract. The system of jurisprudence in Quebec is an admixture of the Code Napoleon, the _coutume de Paris_, and the common law of England. The provisions of the Civil Code and Code of Civil Procedure of the Province are largely of French origin. Marriage must be solemnized openly by a competent officer recognized by law and must be preceded by the publication of banns, unless a license is obtained. A license for a marriage by a Protestant clergyman must be issued from the office of the Provincial Secretary. A marriage contracted without the free consent of both parties, or of one of them, can only be attacked by such parties themselves or by the one whose consent was not free. A marriage contracted before the parties, or either of them, have attained the age required can no longer be contested if six months have elapsed since the party or parties have attained the proper age; or if the wife under that age has conceived before the termination of six months. The laws in this Province concerning the rights of married women to own property separate from their husbands are almost mediæval. A married woman cannot take judicial proceedings without being authorized so to do by her husband or the court. A husband and wife cannot contract with each other even with the assistance of a third person. They cannot even make donations to each other during the marriage. Husband and wife are not competent witnesses against each other in a court of law. Neither the courts nor the Provincial legislature grant divorces which dissolve the marriage bond. Applications for such relief must be addressed to the Dominion Parliament. A separation from bed and board is granted by the courts to either party to a marriage upon proof of adultery, cruelty, desertion or confirmed drunkenness; and to a wife for the failure of her husband to provide her proper support. Where a husband keeps a concubine in the same house with his wife the latter is justified in leaving him to live elsewhere, and in so doing the wife does not lose any of her marital rights. Quebec is the only Province in the Dominion of Canada where a child born out of wedlock is legitimatized by the subsequent marriage of the parents. BRITISH COLUMBIA.--The Divorce and Matrimonial Act of 1857, passed by the Imperial Parliament, is in full effect in this Province. The Supreme Court has jurisdiction to entertain a petition for divorce between persons domiciled in the Province and in respect of matrimonial offences alleged to have been committed therein. Absolute divorces are granted on the application of the husband on the ground of adultery; on the application of the wife on the ground of incestuous adultery, bigamy with adultery, rape, sodomy or bestiality, adultery coupled with such cruelty as without adultery would have entitled her to a judicial separation, or adultery coupled with desertion, without reasonable excuse, for two years or upwards. Alimony may be ordered to be paid to the wife, by the decree dissolving the marriage or granting a separation, or it may be sued for separately if the wife has either obtained or is entitled to such a decree. After absolute divorce either party may marry again. The procedure in divorce matters is almost identical with that of England. A judicial separation may be obtained by either spouse because of: 1. Adultery. 2. Cruelty. 3. Desertion without cause for two years or more. NEW BRUNSWICK.--It is interesting to note that in this Province a married woman may acquire, hold and dispose of, by will or otherwise (except that husband's curtsey will not therefore be affected), any real or personal property as her separate property, in the same manner as if she were a _femme sole_, without the intervention of any trustee, and may enter into and render herself liable in respect of and to the extent of her separate property on any contract, and of suing and being sued in all respects as if she were a _femme sole_. The grounds for absolute divorce are: 1. Impotency. 2. Adultery. 3. Consanguinity. NOVA SCOTIA.--This old Province, originally called Acadia, has a judiciary which consists of a chief justice, an equity judge and five puisne judges, a supreme court having law and equity jurisdiction throughout the Province, a vice-admiralty court and a court of marriage and divorce. The rules as to consanguinity and affinity, the causes for divorce and judicial separation and the civil effects of marriage and divorce are the same as in England. ALBERTA.--The Supreme Court Act (February 11, 1907) established the Supreme Court of the Province and provided that the court "shall have jurisdiction to grant alimony to any wife who would be entitled to alimony by the law of England, or to any wife who would be entitled by the law of England to a divorce and to alimony as incident thereto, or to any wife whose husband was separate from her without any sufficient cause and under circumstances which would entitle her by the laws of England to a decree for restitution of conjugal rights; and alimony, when granted, continue until further order of the court." NORTHWEST TERRITORIES.--The term "Northwest Territories" originally referred to the region over which the Northwest Company exercised authority, the territorial limits of which were not clearly defined. The term is now used to designate the Canadian territories and districts of Yukon, Keewatin, Mackenzie, Ungava and Franklin. As we have before observed, the law of marriage and divorce in the Northwest Territories is substantially the same as that of England. NEWFOUNDLAND.--This, the oldest British colony in North America, is the most modern in its law of domestic relations. Marriage is considered a civil contract, which may be solemnized before a qualified clergyman of any sect, or a judge, justice of the peace or other magistrate. A married woman has the same right of buying, selling, owning and controlling any kind of real or personal property as a single woman. She has also the fullest right to make any lawful contract without adding her husband as a party. She may sue and be sued as if she were a single woman or a man. There being no divorce courts, the Provincial legislature having no power to grant divorces, and the Colony of Newfoundland being outside of the jurisdiction of the Dominion Parliament of Canada, an absolute divorce cannot be obtained in the colony. CHAPTER XXVII. THE REPUBLIC OF MEXICO. Mexico is a federative Republic composed of twenty-seven States, three Territories and a Federal District. Under the present Constitution, which is dated February 5, 1857, each State has the power to control its own local domestic concerns and to have its own separate executive, legislature and judiciary. The Civil Code of the Federal District (_El Codigo Civil de Distrito Federal_) was enacted simply for the Federal District and the Territories of Lower California, Tepic and Quintana Roo, but each of the twenty-seven States have in their respective Civil Codes adopted the provisions of the Federal Civil Code, especially with reference to the law of marriage and divorce. Therefore, we find it unnecessary to deal with each State separately. MARRIAGE.--The courts of Mexico, following the Federal Code, define marriage as the lawful co-partnership of one man and one woman united for life in an indissoluble bond to perpetuate their species and to render each other mutual assistance, fidelity and sympathy in bearing together the burdens of life. The law does not recognize in any manner future espousals, nor any conditions contrary to the legitimate purposes of marriage. Marriage must be preceded by the statutory preliminaries and be celebrated before authorized officials with all such formalities as are by law required. A male must be at least 14 years of age and a female at least 12 years of age to contract marriage, unless a dispensation from the superior political authority is obtained permitting marriage at an earlier age. Such a dispensation can only be obtained in exceptional cases and for good cause. Parental consent is required for the marriage of both males and females under the age of 21 years. If the father is dead the consent of the mother is sufficient. If both the father and mother are dead then the consent of the paternal grandfather will suffice. If he is also dead the paternal grandmother must give consent. In the event of both paternal grandparents being dead the maternal grandparents take their place and exercise the _patria potestad_. IMPEDIMENTS.--The impediments to marriage are: 1. Incapacity of the parties, as when one or both are under age. 2. Absence of the consent of parents or of the person exercising the rights of a parent. 3. Mistake as to the identity of either party. 4. Relationship within the prohibited degrees. CONSANGUINITY AND AFFINITY.--Marriages are prohibited between ascendants and descendants; between brothers and sisters of the whole or half blood; between uncles and nieces; aunts and nephews, and all other persons related by blood or marriage within the third degree. The laws of Mexico recognize no relationship other than one by consanguinity and affinity. Each generation constitutes a degree, and the series of degrees constitute the line of relationship. OTHER PROHIBITIONS: A. A marriage is prohibited when either of the intending parties has a husband or wife still living. B. If one of the parties has made an attempt against the life of the husband or wife of the other with the intention of marrying the survivor. C. If one of the parties has obtained the apparent consent of the other by fear, coercion or duress. D. If either of the parties is permanently and incurably insane. FORMALITIES.--Parties intending to conclude marriage must personally appear before the judge of civil status of the domicile of either party, and state their intention. The judge will thereupon make an entry in a register kept for that purpose of the names, occupations and domiciles of both of the contracting parties, the names, occupations and domiciles of their parents, if the same be ascertainable, the names, occupations and domiciles of the witnesses whom the parties present to the judge as knowing the legal capacity of the parties, and proof of the consents of the parents, or of such persons as are lawfully exercising the rights of the parents. If either of the contracting parties has been previously married the judge must require proper evidence that the former consort is dead. If it appears that there exists any impediment to the intended marriage which could be removed by a dispensation from the superior political authority such dispensation must be exhibited. Upon the judge receiving the required proof that the parties may be legally married he will cause a copy of the record to be posted in a conspicuous place in his office for 15 days, and two similar copies must be posted in the usual public places. If, during the publication as aforesaid, and for three days thereafter, no valid opposition is made by any one to the marriage, it becomes the duty of the judge, upon request of the parties, to fix the place, day and hour for the celebration. A marriage must be celebrated in public at the place and time previously fixed by the judge. The parties must appear in person or by their specially appointed proxies, and be attended by at least three adult witnesses, who may be relatives. The parties, by themselves, or by their specially appointed proxies, must formally declare to the judge in the presence of the witnesses their intention to take each other as husband and wife, upon which declaration the judge shall pronounce them man and wife and make an official record of the marriage. RIGHTS AND OBLIGATIONS OF MARRIAGE.--Husband and wife are obliged to be faithful to each other, and each must contribute his or her part to the objects of the marriage. They are under mutual obligation to succor and protect one another and to render each to the other affection and sympathy. It is a wife's duty to live with her husband and to follow him wherever he may choose to go and accept his selection of a conjugal home. A husband is obligated to provide alimentation (_alimentos_) to his wife even though she may have brought no property into the marital community. By alimentation is meant not only necessary food, but raiment and things of personal necessity and comfort commensurate with the husband's ability to make such provision. The husband owes his wife the duty of protecting her person and reputation. The wife must obey her husband in domestic concerns, in the matter of training and educating the children of the marriage and in all affairs connected with the common property and the household. If the wife has property of her own she must furnish alimentation (food, clothing and lodging) to her husband when he is in want and cannot obtain it for himself. If a husband proposes to leave the Republic to live in a foreign land the wife may apply to the courts to be relieved from the usual duty of adopting her husband's residence. The husband is the legitimate representative and manager of all of the property of the marriage. He is ordinarily his wife's representative in legal proceedings. A wife generally cannot appear either personally or by attorney in a suit at law without her husband's authorization in writing. If she is of full age a wife does not require her husband's authorization in the following instances: A. To defend herself in a criminal action. B. To bring a suit against her husband. C. To devise or bequeath her own separate property by a will. D. When her husband is in what the Mexican lawyers call a state of interdiction, as, for example, when he is under guardianship or insane. E. When she is in business on her separate account and the suit or proceeding relates to such business. DIVORCE.--It is in the chapter of the Civil Code entitled "_Del divorcio_" that we find the statutory provisions concerning divorce. The chapter begins by stating positively that divorce (_divorcio_) does not dissolve the bonds of matrimony. We must remember that the Federal Code is founded upon the Spanish Code, and that both Mexico and Spain, being historically Roman Catholic countries, reflect the leading dogmas of the Catholic Church in their civil jurisprudence. What is called a divorce in Mexican law is at the most a separation from bed and board. It simply suspends certain of the civil obligations and effects of marriage. CAUSES FOR DIVORCE: 1. Adultery of the wife under any circumstances. 2. Adultery of the husband, if the adultery is committed in the conjugal home, or if the husband is living in concubinage, or if the husband's adultery causes a public scandal and attracts public contempt or insult to the wife, or if the wife has been ill used by word or deed by her husband's paramour or on account of her. 3. If the husband proposes or plans to prostitute his wife, or accepts from a third person any money, article or valuable consideration for the purpose of effecting such prostitution. 4. When either spouse instigates or encourages the other to commit a crime. 5. The attempt by positive acts by either husband or wife to corrupt their children or by deliberately permitting third persons to practice such corruption. 6. Abandonment without just and legal cause of the conjugal home (_casa comun_), or if there is just and legal cause for such abandonment, to remain away for one year or more without beginning a suit for divorce. 7. Cruelty, threats or injury of a serious nature by one spouse against the other. 8. False accusation of a grave nature made by either party against the other. 9. The refusal, or wilful neglect, of one spouse to furnish alimentation, or support, to the other, in accordance with law. 10. Incorrigible vices of gambling or drunkenness. 11. The existence of a chronic and incurable disease which is hereditary or contagious afflicting one of the spouses previous to the marriage, of which the other spouse had no knowledge when the marriage was concluded. 12. If the wife gives birth to a child conceived before marriage, which child has been judicially declared illegitimate. 13. An infringement or violation of the marriage settlements (_capitulaciones matrimoniales_). 14. Mutual consent of the parties. PROCEEDINGS FOR DIVORCE.--Even if the spouses consent to a divorce there must be a formal legal proceeding. In such a case the suit is begun by a petition to the judge setting forth clearly the consent to divorce and the agreement of the parties as to the maintenance of the wife, the custody of the children and the disposition or division of the property held in common. When such a petition is filed it becomes the duty of the judge to summon the parties before him and to endeavour to effect a reconciliation. In a suit where the spouses do not mutually consent to a divorce, it is still the legal duty of the judge to attempt a reconciliation of the parties. ANNULMENT OF MARRIAGE.--While the Mexican law does not recognize absolute divorce it does provide for the annulment or setting aside absolutely of certain marriages. Marriages are voidable and may be annulled in the courts on the following grounds: A. If the parties are related within the prohibited degrees of consanguinity and affinity. B. If the parties, or either of them, were incapable by reason of non-age or otherwise of legally concluding marriage. C. If the necessary parental consent, or consent of the person exercising the _patria potestad_, was not had. D. If the marriage was irregular or contrary to law, as, for example, if the proper publication was omitted, or no witnesses attended the celebration. E. If there exists in either party, and existed before the marriage, an incurable impotency for copulation. Want of legal age of either party is not a ground for annulment if a child is born, the issue of the union. And if either party, or both, were under the legal age at the time of marriage, a decree of annulment will not be granted if, upon becoming twenty-one years of age, the spouses continue to cohabit together. Such marriages as we have pointed out above are not void, but voidable, and any of the grounds sufficient for annulment may be waived by the aggrieved spouse. EFFECTS OF DIVORCE.--Divorce can only be granted to the innocent party, and suit therefor must be brought within one year after the petitioner discovers the facts which constitute a legal cause for a decree. The innocent party, pending the action, or even after the final decree, may require the other party to resume the marriage relationship. The most usual effect of a divorce is a physical separation of the spouses. If the wife is the guilty party she may, on her husband's suggestion, be directed by the judge to live in a certain house, for the protection of the good name of the husband. Upon the finding of a decree of divorce, if the parties have not reached an appropriate agreement, the judge will make such directions as to the maintenance of the wife, custody of children and division of common property as justice may require. FOREIGN MARRIAGES.--Marriages concluded between foreigners in a foreign country, which are valid in that country, will be recognized as valid for all civil effects in Mexico. A marriage between a Mexican citizen and a foreigner, or between two Mexican citizens, and concluded in a foreign country, will be valid for all civil effects in Mexico, provided such marriage was concluded according to the law of the foreign country and is not in violation of the Mexican laws as to the prohibited degrees of relationship, capacity to contract and consent of persons in _loco parentis_. Foreign laws (_leyes extranjeras_) must be established as matters of fact by the persons relying upon their existence, and their application to questions at issue must also be shown. Within three months after a Mexican citizen who has concluded marriage in a foreign country returns to the Republic, he or she must cause the inscription of the celebration to be entered in the Civil Register of his or her domicile. CHAPTER XXVIII. ARGENTINE REPUBLIC. The Civil Code of the Argentine Republic shows strong evidences of the Spanish origin of its precepts. As in the old motherland marriage is considered as indissoluble except by the death of one of the contracting parties. However, the Republic does not accept the decrees of the Council of Trent or the canonical law of the Catholic Church on the subject of marriage as parts of the law of the land. As a matter of religion the people of Argentina may consider marriage as a sacrament or divine ordinance, or not, as it pleases their consciences, but as a matter of law marriage in the Argentine Republic is simply a civil contract. ESSENTIALS OF MARRIAGE.--For the validity of marriage there must be the consent of two contracting parties declared before the public official in charge of the civil register. The contract can be declared by proxy, but only with a special authorization from the principal, in which the person with whom the proxy has to conclude the marriage is clearly described. IMPEDIMENTS.--The existence of any of the following conditions make a marriage unlawful: 1. Consanguinity between ascendants and descendants without limitation, whether legitimate or illegitimate. 2. Consanguinity between brothers and sisters and half brothers and sisters, legitimate or illegitimate. 3. Affinity in the direct line in all degrees. 4. The woman not being twelve and the man fourteen years of age. 5. The existence of a previous marriage. 6. Where one of the parties has been voluntarily the author of, or the accomplice in the death of, the former husband or wife of the other. 7. Insanity. 8. A woman over twelve years of age and a man over fourteen, but minors, and the deaf and dumb who cannot write cannot bind themselves in marriage without the consent of their legitimate father, or, failing him, without their mother's consent, or that of their guardian, or of the judicial consent or permission, in the absence of the above. The civil judge will decide in cases of disagreement. 9. A guardian, or his descendants under his power, cannot marry minors under his guardianship so long as the latter lasts. PRELIMINARIES.--Those who desire to marry must present themselves before the public official in charge of the civil register, at the domicile of one of the parties, and verbally declare their intention to marry. Two witnesses are required who, from their knowledge of the contracting parties, can declare as to their identity and that they consider them capable of being married. CELEBRATION.--The marriage must be celebrated before the official charged with the civil registry in his office, publicly, the bride and bridegroom, or their proxies, appearing in person, in the presence of two witnesses and with the formalities prescribed by law. If either of the contracting parties are unable to appear at the registry office the marriage may be celebrated at his (or her) residence. If the marriage be celebrated in the registry office two witnesses must be present, and four witnesses if it is celebrated at the domicile of either of the contracting parties. In celebrating the marriage the Public Registrar must read to the contracting parties those portions of the law which define the rights and obligations of married couples. He must also receive from each the declaration that they respectively desire to take each other as husband and wife. He must also formally declare the couple to be man and wife. There is no legal objection to a religious celebration of marriage following the civil ceremony, which alone is treated as legally effective. HUSBAND AND WIFE.--The contracting parties are bound to be mutually faithful, but the infidelity of the one does not excuse the infidelity of the other. The one who breaks this obligation can be proceeded against by the other in the divorce courts without prejudice to what is laid down on the subject by the Penal Code. The husband is bound to live in the same house as his wife and to give her all necessary assistance, protection and support. If there be no marriage contract to the contrary, the husband is the legal administrator of all the property belonging to the married couple, including that of the wife, as well as that which they possessed at marriage as of that subsequently acquired by them in their own right. The wife is bound to live with the husband wherever he may fix his residence. A wife cannot, without her husband's permission, go to law, make any contract, or acquire goods, nor alienate or pledge goods without such permission. The wife may, of course, in certain cases, such as divorce, acquire judicial authorization for prosecuting or defending a suit in the courts. DIVORCE.--The courts of the Argentine Republic grant divorces, but in effect they only amount to a personal separation of the parties to a marriage, without the dissolution of the bonds of matrimony. These so-called divorces are granted for the following causes: 1. Adultery of the husband or wife. 2. Attempt by one of the parties on the life of the other, either personally or as an accomplice. 3. The instigation of one of the parties by the other to commit adultery or other crimes. 4. Cruelty. 5. Serious injuries. In estimating the gravity of the injury the judge will take into consideration the education and social position of the parties. 6. Such ill-treatment, even if not serious, as renders married life unsupportable. 7. Wilful and malicious desertion. EFFECTS OF THE DIVORCE.--If the wife be of age she can exercise all the usual acts of civil life. Each of the parties can fix his or her domicile or residence where he or she thinks fit, even if it be abroad. However, if the party have children under his or her care, they cannot be taken abroad without the permission of the court of their domicile. The innocent party can revoke the donations or advantages which he or she may have made or promised to the other by the marriage contract, whether they were to have come into effect during the life of the party or after his or her death. Children less than five years old remain in the mother's custody. Those over that age shall be handed over to the party who, in the opinion of the judge, is most fitted to educate and care for them. The husband who may have given cause for divorce must continue to support the wife if she have not sufficient means of her own. The judge shall decide the amount and manner in which this shall be done, with due regard to the circumstances of both parties. Whichever of the parties may have given cause for divorce will have the right to require the other, if he or she be able to do so, to provide him or her with subsistence, if such be absolutely necessary. DISSOLUTION OF MARRIAGE.--A legal marriage can only be dissolved by the death of one of the contracting parties. A marriage which can be dissolved in accordance with the laws of the country in which it was celebrated cannot be dissolved in the Argentine Republic except by the death of one of the parties. The supposed decease of one of the contracting parties, either through absence or disappearance, will not enable the other to marry again. So long as the decease of one of the contracting parties, either through absence or disappearance, has not been absolutely proved, the marriage is not considered as dissolved. ANNULMENT OF MARRIAGE.--A marriage may be annulled when it was contracted in violation of some legal impediment, or for want of proper consent. SECOND OR FURTHER MARRIAGES.--A woman cannot marry again for ten months after a dissolved or annulled marriage, unless she was left pregnant, in which case she may marry after having given birth to the child. PROOF OF MARRIAGE.--A marriage must be proved by certificate, or copy thereof, of such marriage. If it is impossible to produce the certificate, or its copy, all other means of proof will be allowed, but these other proofs will not be admitted unless it is previously established that such certificate or copy cannot be produced. CHAPTER XXIX. THE UNITED STATES OF BRAZIL. The United States of Brazil (_Estados Unidos do Brazil_), the largest country in South America and one of the most extensive political subdivisions of the world, is a Republic comprising twenty States and a Federal District. Its present constitution was adopted February 24, 1891, and is in many respects similar to that of the United States of America. The legislative power is vested in the President of the Republic and a National Congress, consisting of a Senate and Chamber of Deputies. The individual States are governed by their governors and legislatures, and possess their own judicial systems. The main body of the civil law has its origin in the Portuguese Code and in the judicial precedents of Portugal. There is a Supreme Federal Court of Justice, which sits at the capital, Rio de Janeiro, and Federal Courts in each of the twenty States. Ninety-nine per centum of the people of Brazil are Roman Catholics and consider marriage as a religious sacrament, but the law of the land considers it simply as a civil contract. MARRIAGE.--The Civil Code defines marriage as a perpetual contract between two persons of different sex to live together and establish a legitimate family. A civil or legal celebration of marriage is compulsory for all persons, irrespective of race or creed. If after the civil marriage the parties may desire to satisfy their consciences and the mandates of their church or sect by having the marriage solemnized in a religious form, there is no legal objection thereto. Marriage is forbidden: 1. Of minors under the age of 21 years, unless with parental consent. 2. Of persons of adult age who are incapable of properly governing themselves or their estates, without the authorization of their legal representatives. 3. Of an adulterous wife with her accomplice who has been condemned for the offence. 4. Of a wife or widow who has been condemned as the principal or accomplice of the crime of homicide with a principal or accomplice in the same crime. 5. Of a person bound by solemn vows of religion to a life of chastity. The canon law of the Roman Catholic Church is accepted as defining the religious rules and spiritual effects of marriage, but the civil law defines the status and temporal effects of the marriage contract. PROHIBITED MARRIAGES.--The following persons are forbidden to marry each other: 1. Ascendants and descendants. 2. Persons related collaterally in the second degree. 3. Males who have not completed their fourteenth year and females who have not completed their twelfth year of age. 4. Persons already bound by marriage. PRELIMINARIES.--The intending parties must present themselves in person before the registrar and produce certificates showing: A. Full names, ages, occupations and domiciles of the contracting parties. B. The full names, ages, occupations and domiciles of their parents, or, if they are dead, the same particulars of those who replace them _in loco parentis_. C. Proof of the consents of such persons who in law are entitled to give or withhold consent to the proposed marriage. D. A declaration in writing by two respectable witnesses of full age, certifying acquaintance with the contracting parties, and knowledge that they are not related within the prohibited degrees of kinship. If either of the contracting parties has been previously married, proof of the death of the former spouse must be given to the registrar. Upon receiving satisfactory proof as stated above, the registrar must post a notice of the proposed marriage in a conspicuous place in his office, which notice informs all interested persons to file their objections, if any they have, in the registry within fifteen days. If at the end of this period no valid objection to the marriage has been formulated the civil officer proceeds to the celebration of the marriage. A marriage concluded before a civil officer in the form established by the civil law of Brazil can only be annulled by a civil court. DIVORCE.--The law of the Republic does not permit of an absolute divorce for any cause whatsoever. A true marriage can only be dissolved by the death of one of the parties. JUDICIAL SEPARATION.--A separation of the person and goods may be had for the following causes: 1. Adultery of the wife. 2. Adultery of the husband, if such adultery creates a public scandal, or if the husband brings his concubine into the home he has established for his wife. 3. Sentence of one of the spouses to life imprisonment. 4. Cruel and ill-human treatment. FOREIGN MARRIAGES.--The courts of Brazil recognize as valid a marriage between two foreigners concluded in a foreign land, provided that such marriage is monogamous, is not between ascendants or descendants, or between persons related collaterally in the second degree, and if such marriage was regularly concluded according to the law of the country of its celebration. A marriage abroad of a citizen of the Republic of Brazil must conform not only to the law of the place of its celebration, but must also be in strict accordance with the law of Brazil. CHAPTER XXX. THE REPUBLIC OF CUBA. A nation may in a day overthrow a dynasty which has ruled for centuries, it may in a few years completely revolutionize its system of government and methods of trading, but its ancient code of marriage will live on unchanged for ages. It is a noteworthy fact that the law of Rome concerning marriage survived the Roman Empire by a thousand years, and even to-day it is the foundation of the law on that subject in all of the Continental countries of Europe and of the entire Western Hemisphere, with the exception of the United States of America and Canada. In the Civil Code of Cuba we can see not only its recent origin from the Spanish Code, but traces of the Law of the Twelve Tables and the Institutes of Justinian. Cuba is to-day a Republic composed of six Provinces. The seat of government is located at Havana, where sit the Senate and House of Representatives, which constitute the national legislature. The Civil Code is the _Codigo Civil_ of Spain, with such changes and modifications as have become effective since Spain lost its sovereignty over Cuba. The statement of Cuban law which follows is, therefore, predicated upon the _Codigo Civil_, which by royal decree of May 11, 1888, was extended to the islands of Cuba, Porto Rico and the Philippines, upon proclamations and orders issued during the recent American military occupation and on the interpretation and construction of the positive law by Cuban courts and jurists. MARRIAGE.--The law considers marriage as a civil contract, which may be concluded by either a civil (_matrimonio civil_) or a religious (_matrimonio religioso_) celebration. A male cannot marry until he has completed his fourteenth year of age; a female until she has completed her twelfth year. Marriages contracted by minors under the legal age become, however, _ipso facto_ legal if a day after having arrived at the legal age the parties continue to live together without bringing suit to annul the marriage, or if the female becomes pregnant before the legal age or before the institution of a suit for annulment. Only such persons as are in the full enjoyment of their reason can contract marriage. Marriage is forbidden to all persons who suffer from absolute or relative physical impotency for the purposes of procreation. Persons ordained _in sacris_ and those professed in an approved canonical order, who are bound by a solemn pledge of chastity, cannot lawfully conclude marriage until they have obtained the proper canonical dispensation. Those who are already bound in marriage cannot contract a new marriage. Persons who are twenty-three years of age or upwards may conclude marriage, if otherwise of legal capacity, without parental consent or advice. Persons under twenty years of age require the consent of their parents, or of such persons whose right it is to give or withhold such consent. Persons who are more than twenty years of age, but under twenty-three, are under the obligation of asking the advice or counsel of their parents or of such persons standing in the parental relation before contracting marriage, and if the advice is refused, or it should be unfavourable, the marriage cannot take place until three months after the petition was made. The consent and the favourable advice for the celebration of a marriage must be proven, if requested, by means of an instrument authenticated by a civil or ecclesiastical notary or by the municipal judge of the domicile of the petitioner. When the advice has been proven the lapse of time shall be proven in the same manner. If a marriage is concluded by persons more than twenty years of age, and under twenty-three years of age, without compliance with the rules just stated, the marriage will be recognized as valid, but the offender is subject to certain disabilities and penalties. CONSANGUINITY AND AFFINITY.--The following persons are prohibited from contracting marriage with each other: 1. The ascendants and descendants by legitimate or natural consanguinity or affinity. 2. Collaterals by legitimate consanguinity up to the fourth degree. 3. Collaterals by legitimate affinity up to the fourth degree. 4. Collaterals by natural consanguinity or affinity up to the second degree. The government, for sufficient cause, may on the petition of a party grant a dispensation permitting a marriage of minors who have not obtained the proper permission or advice of the persons whose legal right it is to authorize one or the other. For grave reasons the government may also grant a dispensation relieving a party from the prohibition of marrying within the third and fourth degrees of collaterals by legitimate consanguinity; the impediments arising from legitimate or natural affinity between collaterals and those relating to the descendants of the adopter. SPECIAL PROHIBITIONS.--The following persons cannot contract marriage with each other: 1. The adopting father or mother and the adopted; the latter and the surviving spouse of the former, and the former and the surviving spouse of the latter. 2. The legitimate descendants of the adopter with the adopted, while the adoption lasts. 3. Adulterers who have been condemned by a final judgment. 4. Those who have been condemned as authors, or as the author and accomplice, of the death of the spouse of either of them. CELEBRATION OF MARRIAGE.--A civil marriage must be celebrated according to the requirements of the code, as changed or modified by subsequent orders, decrees and legislation. Any clergyman, priest or minister, irrespective of faith or sect, who belongs to a religious denomination actually established in the Republic of Cuba, and who has been duly authorized, may solemnize marriage. A register is kept in the office of the Secretary of Justice containing the names and addresses of all clergymen, priests and ministers who are qualified to solemnize marriage in the Republic. Persons who desire to contract a religious marriage must present to the clergyman, priest or minister who is qualified to perform the ceremony a declaration signed by both of the contracting parties, stating: 1. The names, surnames, profession, domicile or residence of the contracting parties. 2. The names, surnames, profession, domicile or residence of the parents. 3. Certificates of birth and of the status of the contracting parties, the consent or advice, if proper, and the dispensation, when it is necessary. Upon the presentation of such a declaration the clergyman, priest or minister shall announce the future celebration of marriage between the parties according to the form or method prescribed by the rites and regulations of his religious denomination. If the religions denomination of such clergyman, priest or minister has no established form for such announcement, then a publication must be made in the form established by the Civil Code. The method required by the Civil Code for proclaiming an intended marriage is set forth in Article 89, which directs a publication by posting the written declaration of the parties for fifteen days and calling upon those who have information of any obstacle to oppose the marriage. A civil marriage can only be solemnized by a municipal judge (_Juez Municipal_), to whom must be presented as an indispensable preliminary such a signed declaration of the parties as is necessary in the case where the parties desire a religious ceremony. A municipal judge chosen to celebrate a civil marriage will also direct as a preliminary to marriage such a proclamation as is required by Article 89 aforesaid. A priest, minister or clergyman duly authorized to perform marriages may, for sufficient cause, dispense with the publication as before set forth; but in every case where a publication is made the marriage cannot be concluded after fifteen days after the first day of such publication. No priest, clergyman or minister is now authorized to grant a dispensation permitting a marriage for any reason forbidden by the laws of the Republic. An opposition to a marriage made by an interested person must be heard and determined by the municipal judge of the district before any person whatsoever is authorized to solemnize the nuptials. The celebration itself must be witnessed by two adults, who may be relatives of the parties. Article 87 of the code, permitting one or both of the parties to a marriage to appear at the celebration, either personally or by proxies to whom a special power is given, is still in effect. The municipal judge, priest, minister or clergyman who solemnizes a marriage must immediately furnish to the parties a certificate of marriage and cause a full and particular record of said marriage to be filed in the Civil Registry of the District (_Registro Civil del Distrito_), in default of which such judge, priest, minister or clergyman will be subject to a fine of one hundred _pesos_, or imprisoned for not less than 30 days, or not more than 90 days, by the Correctional Judge (_Juez Correccional_) of his domicile. ANNULMENT OF MARRIAGES.--The civil courts have exclusive jurisdiction to decree an annulment of marriage. The following marriages are void: 1. Those celebrated between persons related within the prohibited degrees, except in cases of dispensation. 2. Those contracted by error as to the person or by compulsion or intimidation. 3. Those contracted by the abductor with the abducted while she is in his power. 4. Those which are not solemnized by an authorized official. A marriage contracted in good faith produces civil effects, although it may be declared void. If good faith existed on the part of only one of the spouses it shall produce civil effects only with regard to said spouse and to the children. Good faith is presumed if the contrary does not appear. When bad faith existed on the part of both spouses the marriage shall only produce civil effects with relation to the children. After the annulment of a marriage the sons over three years of age shall remain in the care of the father and the daughters in the care of the mother, provided there was good faith on the part of both spouses. If either or both were guilty of bad faith the tribunal has power to make such disposition of the children as justice may require. RIGHTS AND OBLIGATIONS.--The spouses are obliged to live together, to be faithful to, and mutually assist, each other. The husband must protect his wife, and the latter must obey her husband. The wife is obliged to follow her husband wherever he may establish his residence. The tribunals may, for just cause, exempt her from this obligation when the husband removes his residence beyond the seas or to a foreign country. The husband is the administrator of the property of the conjugal partnership, except when the contrary is stipulated. The wife, however, retains ownership of the paraphernal property, which consists of such property as the wife brings to the marriage, not included in the dowry. The husband is the representative of his wife. The latter cannot, without his permission, appear in a suit in person nor through an attorney. Nevertheless, she does not require such permission to defend herself in a criminal suit or to proceed against or to defend herself in suits with her husband. Neither may the wife, without the permission of her husband, acquire property for a good or valuable consideration, alienate her property, or bind herself, except in certain exceptional cases, and within the limitations established by law. A wife may without her husband's permission: 1. Execute a will. 2. Exercise the rights and perform the duties which appertain to her with regard to the legitimate and acknowledged natural children she may have had by another, and with relation to the property of the same. Only the husband and his heirs can enforce the nullity of the acts executed by his wife without proper authorization. DIVORCE.--Divorce only produces the suspension of the life in common of the spouses; it does not dissolve the marriage. The legal causes for divorce are: 1. Adultery on the part of the wife in every case, and on the part of the husband when public scandal or disgrace of the wife results therefrom. 2. Personal violence actually inflicted or grave insults. 3. Violence exercised by the husband toward the wife in order to force her to change her religion. 4. The proposal of the husband to prostitute his wife. 5. The attempts of the husband or wife to corrupt their sons, or to prostitute their daughters, and connivance in their corruption or prostitution. 6. The condemnation of a spouse to penal servitude. EFFECTS OF DIVORCE: 1. The separation of the spouses in every case. 2. The protection of the wife. 3. The placing of the children under the care of one or both of the spouses, as may be proper. 4. The provision for the support of the wife and of the children who do not remain under the authority of the father. 5. The adoption of the necessary measures to prevent the husband, who may have given cause for the divorce, from injuring the wife in the administration of her property. FOREIGN MARRIAGES.--A marriage contracted in a foreign country, according to the laws of such country, is generally treated as valid in Cuba. Such a marriage, however, must be monogamous and otherwise in conformity with the general laws and usages of Christendom. If the parties are Cubans, and are married abroad while retaining their domiciles in Cuba, the foreign marriage must also conform to the requirements of Cuban law with regards to the capacity of the parties and the necessary parental consent or advice. PROOF OF MARRIAGE.--The ordinary manner to prove a marriage concluded in Cuba is to produce a certificate of the record of the civil registry, and this is the proof required unless the books of the civil registry never existed, or have disappeared, or a question is pending before the tribunals, in which case all kinds of direct evidence are admissible. The uninterrupted status of the parents, together with the certificates of the birth of their children as legitimate, is one competent method of proving the marriage of said parents, unless it is shown that one of the two was bound by a prior marriage. A marriage contracted in a foreign country may be established by showing an authenticated copy of its registration. If such foreign country does not require a regular or authenticated registration the marriage must be proved by competent evidence of the regulations of marriage in the foreign country in question, together with proof that all such regulations were complied with. Should a marriage be contracted in a foreign country between a Cuban and a foreign woman, or between a foreigner and a Cuban woman, and the contracting parties do not make special stipulations with regard to their property, it is understood, when the husband is a Cuban, that he marries under the system of the legal conjugal partnership; and when the wife is a Cuban that she marries under the system of laws in force in the husband's country. ENGAGEMENTS TO MARRY.--Future espousals do not give rise to an obligation to contract marriage. No court will admit a complaint in which their performance is demanded. However, if the promise has been made in a public or private instrument by a person of age, or by a minor in the presence of the person whose consent is necessary for the celebration of the marriage, or when banns have been published, the person who refuses to marry, without just cause, can be obliged to indemnify the other party for the expenses which he or she may have incurred by reason of the promised marriage. An action to recover indemnity for such expenses must be instituted within a year, counted from the day of the refusal to celebrate the marriage. SPANISH PRECEDENTS.--It should be remembered that in throwing off the yoke of Spanish rule the people of Cuba did not change their blood, language or traditions. Just as the law of the United States of America is founded upon the law of England as it existed at the time of the adoption of the American Constitution, so the jurisprudence of the Republic of Cuba has as its foundation the law of Spain as it existed at the time the Republic was established. In both instances there have been changes and modifications by legislative acts and judicial interpretations, but a Spanish judicial decision has even more weight in a Cuban tribunal than an English decision has in an American court because Cuba, being a younger Republic than the United States, is much nearer to its motherland in point of time, besides its closer resemblance in race, religion and customs. CHAPTER XXXI. COMMONWEALTH OF AUSTRALIA. The Commonwealth of Australia, created by an act of the Imperial Parliament in 1900 (63 and 64 Vic. cap. 12), is a federal State under the supreme authority of the Crown of Great Britain. This act of Parliament not only created a federal Commonwealth out of the colonies of Queensland, New South Wales, Victoria, South Australia, West Australia and Tasmania, but it also granted to the new Commonwealth a written constitution which is obviously modeled upon that of the United States of America. The constitution provides that "every law in force in a colony which has become or becomes a State shall, unless it is by this constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth or as at the admission or establishment of the State, as the case may be." It is also provided that "when a law of a State is inconsistent with a law of the Commonwealth the latter shall prevail and the former shall, to the extent of the inconsistency, be invalid." All powers not delegated to the central or federal government are reserved to the States. However, in spite of its resemblance to other federal systems, the principle of the responsibility of ministers to Parliament proclaims its English parentage. The judicial power is exercised under the constitution by a federal supreme court, called the High Court of Justice, and other courts of federal jurisdiction. It is expressly provided in the Australian constitution that the Parliament of the Commonwealth shall, subject to the constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to "divorce and matrimonial causes, and in relation thereto, parental rights, and the custody and guardianship of infants." It will be observed that Parliament is given no power under the constitution to make laws prescribing the qualifications for marriage, the impediments thereto, and regulations concerning the celebration. All such power is reserved by the respective States. Moreover, the grant of power to Parliament to make laws with regard to "divorce and matrimonial causes" is not a power "by this constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State." Until the Parliament of the Commonwealth shall legislate on the subject, by passing enactments concerning divorce and matrimonial causes superseding the existing statutes of the several States, the laws of each State will continue in operation. In this chapter we shall consider, first, such laws and regulations concerning marriage and divorce as are in effect throughout the entire Commonwealth, and then, under separate headings, discuss the laws and regulations of each State. MARRIAGE.--The courts of Australia, following the English courts, only recognize as a true marriage one which, in addition to being valid in other respects, involves the essential requirement that it is a voluntary union of one man and one woman for life to the exclusion of all others. The law of the place where marriage is celebrated--that is, the _lex loci celebrationis_--alone guides the court in ascertaining whether or not a marriage is regular. All the formal preliminaries, such as the publication of banns, or license, the consent of the parties entitled to give or withhold consent and the solemn declaration of the contracting parties before competent authority, according to the law of the place of celebration, must be complied with. LEGAL AGE.--The legal age for marriage throughout the Commonwealth of Australia begins with fourteen years for a male and twelve years for a female. PARENTAL CONSENT.--In all of the States parental consent is required for the marriage of males and females under twenty-one years of age. BANNS OR LICENSE.--Unless a marriage license is procured banns must be published in the parish in which the parties reside, and if they live in different parishes the banns must be published in each parish. Where a man has caused the banns to be published or has procured a license under a false name or names, or has been married under a false name or names, he will not be allowed to annul the marriage on that account. A party cannot take advantage of his own fraud for the purpose of invalidating a marriage. CONSANGUINITY AND AFFINITY.--The law considers it against public policy and morality, and contrary to the well-being of the parties, that persons closely related by blood or marriage should intermarry. Marriages are therefore prohibited between all ascendants and descendants, legitimate or illegitimate. A man is also prohibited from marrying his stepmother, wife's mother, stepdaughter, daughter-in-law, son's daughter-in-law, daughter's daughter-in-law, stepson's daughter, stepdaughter's daughter, niece by blood, niece by affinity, or nephew's wife. A woman is prohibited from marrying her uncle by blood or affinity, husband's uncle, father-in-law, stepson, son-in-law, son's son-in-law, daughter's son-in-law, stepson's son, stepdaughter's son, nephew by blood or affinity, or niece's husband. ANNULMENT OF MARRIAGE.--A marriage may be annulled in any of the States of the Commonwealth upon competent proof showing: 1. A prior and existing marriage of one of the parties. 2. Impotency or such physical malformation of one of the parties which prevents him or her from consummating the marriage by sexual intercourse. 3. Relationship within the prohibited degrees. 4. That the marriage was procured by fraud, violence or mistake as to identity. 5. That one of the parties was insane at the time the marriage was concluded. 6. That the marriage was celebrated without the consent of the persons by law entitled to give or withhold consent. 7. That the marriage was performed without legal license, or the publication of banns, or solemnized before a person not having authority to officiate. A marriage will not be annulled on the last ground stated if it appears that one of the parties acted in good faith and honestly believed that the person who solemnized the marriage had the required authority. JUDICIAL SEPARATION.--A decree of judicial separation, which is equivalent to the old form of limited divorce (_a mensa et thoro_) may be obtained in any of the States for the following causes: 1. Adultery of either husband or wife. 2. Desertion without legal cause for two years or more. 3. Cruelty or abusive treatment of one spouse by the other. It is an absolute bar to a suit for judicial separation that the petitioner has committed adultery since the marriage. DIVORCE.--Absolute divorces completely dissolving the marriage bond are granted by the courts of every State in Australia. As every State has its separate statutes on the subject, which set forth the legal causes for divorce, we shall consider such causes in our discussion of each State separately. DEFENCES.--In all the States condonation of a matrimonial offence, which is a legal cause for divorce, is a good defence to the petition. It is also a sufficient defence for the respondent to show that the offence complained of was committed by the connivance or active consent of the petitioner. Connivance in adultery as a bar to divorce is founded on the doctrine _volenti non fit injuria_, the consent consisting in acquiescence, active or passive, in the adulterous intercourse. Passive acquiescence is a sufficient bar, provided it was carried out with the intention that the husband or wife would be guilty; but it must be something more than mere inattention, indifference or dulness of apprehension. The presumption, where the facts are equivocal, is in favour of absence of intention. One spouse must not invite the other to commit adultery; but he or she may permit the licentiousness of the other spouse to have its full scope without being guilty of connivance. It is not connivance to watch for the purpose of discovering a suspected fact so as to make conviction certain. COLLUSION.--An illegal agreement and co-operation between a petitioner and a respondent in a divorce action to enable the petitioner to obtain a judicial dissolution is a fraud upon the court. Upon such collusion appearing the court, at its own instance, will dismiss the petition. DESERTION.--The High Court of Justice of the Commonwealth has defined desertion, which in several of the States is a legal cause for absolute divorce, as follows: "Desertion involves an actual and wilful bringing to an end of an existing state of cohabitation by one party without the consent of the other. Such 'consent' must be shown by something more than a mere mute acquiescence in an existing state of separation or non-resistance to abandonment. What is necessary is some communication of the intended acquiescence or non-resistance to the other by express words or by conduct." FORM OF DIVORCE DECREE.--A decree of divorce in any of the States is granted _nisi_, or provisionally, and cannot be made absolute until three months have elapsed after the decree _nisi_ is entered. A judicial separation may be granted, even if the suit is for an absolute divorce, if the court deems such a decree better meets the law and facts of the case. VICTORIA.--The Marriage Act of 1890 (54 Victoria, No. 1166), entitled "An act to consolidate the laws relating to marriage and to the custody of children and to deserted wives and children and to divorce and matrimonial causes," is practically a short code on the subject of marriage and divorce. CELEBRATION OF MARRIAGE.--The following persons, and none other, may celebrate marriages: 1. A minister of religion ordinarily officiating as such, whose name, designation and usual place of residence, together with the church, chapel or other place of worship in which he officiates, is at the time of the celebration of the marriage duly registered according to law in the office of the Registrar-General. 2. A minister of religion being the recognized head of a religious denomination. 3. A minister of religion holding a registered certificate that he is a duly authorized minister, priest or deacon from the head of the religious denomination to which he belongs, or, if there be no such religious head, from two or more officiating ministers of places of worship duly registered according to law. 4. The Registrar-General or other officer appointed for that purpose. JEWS AND QUAKERS.--The law permits Jews and Quakers to be married by such persons and in such manner as is considered regular and lawful according to their respective beliefs and usages. FORMALITIES.--A marriage must be preceded by a license or the publication of banns. A marriage celebration requires the attendance of two witnesses of full age. DIVORCE.--A domicile of two years or more is a condition precedent to bringing a suit for divorce. The following are legal grounds for a divorce or dissolution of the marriage bond: 1. Adultery on part of the wife. 2. Adultery on part of the husband if committed in the conjugal residence or if it is coupled with circumstances or conduct of aggravation or of a repeated act of adultery. 3. Desertion without just cause continued for three years or more. 4. The habitual drunkenness of a husband for three years, if the husband has habitually left his wife without support, or has habitually been guilty of cruelty to her. 5. Habitual drunkenness of a wife for three years, if the wife has habitually neglected her domestic duties, or rendered herself unfit to discharge them. 6. Imprisonment of either spouse for not less than three years, and being still in prison under a commuted sentence for a capital crime, or under sentence to penal servitude for seven years or more. 7. If the husband has within five years undergone frequent convictions for crime and has been sentenced in the aggregate to imprisonment for three years or more, leaving his wife habitually without means of support. 8. That within a year previously the respondent has been convicted of having attempted to murder the petitioner, or of having assaulted him or her with intent to inflict grievous bodily harm, or that repeatedly during that period the respondent has assaulted and cruelly beaten the petitioner. FORM OF DECREE.--Divorce decrees are entered, in the first instance, _nisi_, or provisionally, and cannot be made absolute until after the expiration of three months following the decree _nisi_. IN FORMA PAUPERIS.--Special provision is made enabling poor persons to prosecute suits for divorce by an interlocutory order in _forma pauperis_, which relieves the person in whose favour it is granted from certain charges and expenses, but does not furnish him or her with the free services of a solicitor or barrister. RECENT DECISIONS.--An important divorce decision holds that visits to brothels by a petitioner who seeks a divorce on the ground of his wife's adultery constitute misconduct conducing to the adultery of the wife and bars the petitioner from a decree, without entering into the question of whether or not adultery was committed by the petitioner in the course of such visits. However, the fact that a husband has conduced to an act of adultery by his wife is not a bar to him obtaining a divorce based on subsequent acts of adultery. NEW SOUTH WALES.--The requirements as to age, consent of parents, or of persons standing in _loco parentis_ are the same in this State as throughout the rest of the Commonwealth and have been set forth in the first part of this chapter. No marriage can be celebrated except by a minister of religion ordinarily officiating as such, whose name, designation and usual residence have been and continue registered in the office of the Registrar-General for Marriages in Sydney or by a district registrar. Parental consent is not required of persons who have previously been lawfully married and whose former marriage has been dissolved by death or divorce. A marriage must be attended by two adult witnesses. By the Matrimonial Causes Act of 1899 jurisdiction in respect of divorces _a mensa et thoro_ (judicial separations), suits for nullity of marriage, suits for dissolution of marriage (absolute divorce), suits for restitution of conjugal rights, suits for jactitation of marriage, and all causes, suits and matters matrimonial are vested in the Supreme Court of the State. CAUSES FOR ABSOLUTE DIVORCE.--A husband who has been domiciled for three years or more in the State may petition for a dissolution of the marriage on the following grounds: A. That the wife has committed adultery. B. That the wife has, without just cause or excuse, wilfully deserted the petitioner and without any such cause or excuse left him so deserted for three years or more. C. That the wife has, during three years and upwards, been an habitual drunkard and habitually neglected her domestic duties or rendered herself unfit to discharge them. D. That within one year the wife has been imprisoned for a period of not less than three years and is still in prison under a commuted sentence for a capital crime, or under sentence to penal servitude for seven years or more. E. That within one year the wife has been convicted of having attempted to murder her husband, or having assaulted him with intent to inflict grievous bodily harm. F. That during one year previously the wife has assaulted and cruelly beaten her husband. A wife may obtain an absolute divorce from her husband by proving: A. That her husband has committed incestuous adultery. B. That the husband has committed bigamy with adultery. C. That the husband has committed rape, sodomy or bestiality. D. That the husband has committed adultery coupled with such cruelty as without adultery would have entitled the wife to a divorce _a mensa et thoro_ (divorce from bed and board) under the laws of England as existing before the enactment of the Imperial Act 20 and 21, Vict. c. 85. E. Adultery of the husband coupled with desertion without reasonable excuse for two years or upwards. JUDICIAL SEPARATION.--A judicial separation may be granted on the ground of adultery, cruelty or desertion without legal cause or excuse continued for two years and upwards. QUEENSLAND.--In this State marriage may be celebrated by any regular officiating minister of religion, or by any district registrar, or by specially authorized justices of the peace. CAUSES FOR ABSOLUTE DIVORCE.--A husband is entitled to an absolute divorce if his wife has committed adultery, but a wife is not so entitled unless her husband has committed incestuous adultery, bigamy, rape, sodomy, bestiality, adultery coupled with cruelty, or adultery coupled with desertion without reasonable excuse for two years or more. Incestuous adultery is adultery with a woman within the prohibited degrees. JUDICIAL SEPARATION.--A limited divorce or judicial separation can be obtained by either spouse on the following grounds: 1. Adultery. 2. Cruelty. 3. Desertion without legal cause for two years. LEGITIMACY.--Illegitimate children are legitimatized by the subsequent marriage of their parents. WEST AUSTRALIA.--The Marriage Act of 1894 is virtually an acceptance by this State, so far as practicable, of the English Divorce Act of 1857. The causes for absolute divorce or for a judicial separation are the same as those given above for the State of Queensland. SOUTH AUSTRALIA AND TASMANIA.--In these two States, by legislative enactments, the causes for absolute divorce and judicial separation are the same as those given on opposite page for Queensland, West Australia and South Australia. The exercise of appellate jurisdiction by the High Court of Justice of the Commonwealth in matrimonial causes has the beneficial effect of making the several States more and more uniform in their local legislation and judicial interpretation. The federal Parliament has express authority under the constitution to enact a federal code of marriage and divorce which will operate throughout the entire Commonwealth, and such a code in one form or another is inevitable. The Commonwealth of Australia is not yet a dozen years old, but the need of superseding six separate systems of law respecting marriage and divorce by a national law on the subject is already apparent and under constructive discussion. Of all the federative dependencies of the British Crown Australia is perhaps the most homogenous in race, religion and traditions, and it will probably be the first to adopt a federal law of marriage and divorce. CHAPTER XXXII. DOMINION OF NEW ZEALAND. The Dominion of New Zealand is a colony of Great Britain consisting of North, South and Stewart Islands, or New Zealand proper, and certain outlying islands, including Cook Island, in the Pacific Ocean. Its present form of government was established by an act of the Imperial Parliament (15 and 16 Vict., cap. 27) passed in 1852. The legislative power is vested in the governor and a bicamera General Assembly or Parliament, consisting of a Legislative Council and a House of Representatives. The constitution provides that the General Assembly or Parliament may make laws "not repugnant to the laws of England." The General Assembly, by an act passed in 1858, declared that: "Whereas, the laws of England, as existing on the fourteenth day of June, 1840, have been applied in New Zealand as far as applicable to the circumstances; but, Whereas, doubt has arisen in respect to such application--Be it declared and enacted, that the laws of England, as existing June 14, 1840, be deemed and taken to have been in force on and after that day and shall hereafter continue in force." Hence it is apparent that the body of the law of New Zealand is founded upon the jurisprudence of England. The judicial system includes a Supreme Court of the Dominion, District Courts and courts presided over by stipendiary magistrates. MARRIAGE.--Males under fourteen years of age and females under twelve years cannot contract a lawful marriage. All persons, male or female, under twenty-one years of age, who have not previously contracted a lawful marriage, require the consent of their parents or guardians in order to marry. However, the marriage of males fourteen years of age or more, or of females twelve years of age or more, without the consent of parents or guardians, does not make such marriage _ipso facto_ void. Parental consent to a marriage of a minor must be given by the father, if living and competent to act; if not, then by the following persons in the order stated: (a) the duly appointed guardian; (b) the mother if she has not married again; (c) or a guardian specially appointed by a court exercising chancery powers. No person can contract a new marriage who has a spouse by an existing marriage still living. CONSANGUINITY AND AFFINITY.--Marriage is forbidden between all ascendants and descendants _ad infinitum_ and between persons related to each other by blood or marriage within the third degree, according to the method of computation of the civil law. According to this reckoning a person cannot marry a relative nearer than his or her own first cousin. PRELIMINARIES.--Notice of a proposed marriage must be given to the registrar of the district in which one of the parties has resided for three days at least. If the contracting parties live in different districts notice must be given to the registrars of both districts. Such notice must set forth the names, ages, status and occupations of each party, together with their addresses, a statement of the period each party has lived in the district, and the name and place of the church, chapel or other building selected by the parties for the solemnization of the marriage. The parties must also make solemn declaration to the registrar or registrars to the truth of all statements of fact in said notice and show that there is no legal impediment to the proposed marriage. Upon receiving the notice in due form the registrar will issue a certificate at once addressed to any officiating minister, or to himself, authorizing the solemnization of the marriage. All marriages must be registered, and the officiating minister or officer who fails to have the record made is subject to punishment. Ordinarily, the best proof of a marriage is to produce the marriage certificate, together with proof identifying the parties, but if the record is lost, destroyed or never existed proof of the marriage may be given by direct oral evidence. In most instances it is necessary to produce clear evidence of a marriage ceremony, but in some exceptional cases a marriage may be proved by long reputation. That is, if two persons live together as husband and wife for many years, and if they have always been regarded as such by their friends and neighbours, the courts will presume a legal marriage unless evidence is produced to prove that the parties were not lawfully married. DIVORCE.--An absolute divorce may be obtained according to the provisions of the Divorce and Matrimonial Compilation Act of 1904 by a husband or wife who has been domiciled in the Dominion of New Zealand for two years or upwards on the following grounds: 1. Adultery of either spouse. 2. Wilful and continuous desertion without just cause for five years and upwards. 3. Habitual drunkenness for four years with habitual cruelty or desertion on the part of the husband. 4. Habitual drunkenness for four years with habitual neglect of her household duties on the part of the wife. 5. Conviction and sentence to imprisonment or to penal servitude for seven years or upward for attempting to take the life of the petitioner. ANNULMENT OF MARRIAGE.--A marriage is annulled on the theory that true and proper consent to the marriage contract has never been given by the parties. The causes or grounds for such annulment are: 1. A prior and existing marriage of one of the parties. 2. Impotency or such physical malformation of one of the parties which prevents him or her from consummating the marriage by sexual intercourse. 3. Relationship of the parties within the forbidden degrees of consanguinity or affinity. 4. That the marriage was procured by fraud or violence of one of the parties. 5. Mistake as to identity. 6. That the marriage was performed without the required legal preliminaries. 7. Insanity of one of the parties at the time the marriage was solemnized. Concerning the sixth cause the tendency of judicial interpretation and construction is to treat the legal requirements concerning formalities to be merely directory and to consider the marriage itself, if at least one of the parties acted in good faith, to be valid. The courts of New Zealand view many of the statutory requirements concerning marriage to be necessary and proper regulations, and which, if disregarded, subject certain persons to fixed penalties, but are not necessarily essential to the marriage contract. EFFECTS OF DIVORCE AND ANNULMENT.--The parties may remarry. During the pendency of the suit for divorce the husband is liable to provide his wife with maintenance or alimony. The amount granted is within the court's discretion, but generally it is about twenty-five per centum of the husband's income. Upon the granting of a divorce decree in the wife's favour the court has power to grant the wife permanent alimony, the amount of which depends on all such facts as the husband's fortune and income, the wife's income and needs and the social status of the parties. If there are children under full age, the issue of the marriage, the court will in the exercise of its discretion make such order concerning their custody, support and education as the ends of justice may require. JUDICIAL SEPARATION.--Under the Divorce and Matrimonial Compilation Act a decree of judicial separation, which is the same in effect as a divorce from bed and board under the old law, may be obtained by either spouse upon the following grounds: 1. Adultery. 2. Cruelty. 3. Desertion without just cause continued for two years. SUMMARY JURISDICTION ACT.--Besides the ordinary suit for a judicial separation a wife may obtain speedy and inexpensive relief by making an application to a stipendiary magistrate for an order of separation and maintenance. The causes sufficient for the granting of such relief are: A. Habitual drunkenness of the husband, coupled with habitual cruelty to, or neglect of, the wife and family. B. Desertion by the husband of his wife. C. Habitual cruelty of the husband toward his wife. D. Neglect of the husband to provide reasonable maintenance for his wife and minor children. A husband is entitled to summary relief permitting him a separation order upon proof that his wife is an habitual drunkard who habitually neglects her household duties. CHAPTER XXXIII. THE HINDU LAW. For every person in the world whose rule of civil conduct is based upon the English system of jurisprudence there are two others to whom Hindu law is both binding by political authority and the rule of conscience. The student of law and world politics will note with interest two impressive facts concerning Hindu jurisprudence in India. The first is that until the accession of British rule in that country the Hindu law was not law in the sense in which the term is understood by lawyers. The second fact is that the acknowledged jurisconsults and commentators upon the Hindu law of to-day are not Hindus, but British and Anglo-Indian jurists. Prof. Golapchandra Sarkar, in his admirable treatise, says: "The administration of the Hindu law by the English judges shows forth in clear light the administrative capacity, the indomitable energy, the scrupulous care and the strong common sense of the English nation." In treating of the marriage and divorce laws of over two hundred and twenty-five millions of human beings who are Hindus by race and religion, the first question to be answered is: What is Hindu law? Hindu law is the whole body of rules regulating the life of a Hindu in relation to his civil conduct and the performance of his religious duties grouped together under the general name of _Dharma Sastra_, or religious ordinances. The ultimate source of this wonderful system is the Veda, but the Hindu also accepts an immemorial custom as transcendant law, contending that such acceptance is approved in the sacred scripture and in the codes of divine legislators. In the Mahabharat we read: "Reasoning is not reliable; the Vedas differ from one another; and there is no sage whose doctrine can be safely accepted; the true rule of law is not easy to be known; the ways of venerable persons are, therefore, the best to follow." The Hindus have for centuries been governed by their own laws, which they regard not as the edicts of a political sovereign, nor as the enactments of a human legislature, but as the immutable commands of the Supreme Being of the universe. With such reverence have these laws been regarded that no Hindu king of whom we have any historical record ever dared to repeal, alter or modify one of them. For the past century such progress as Hindu law has made is due entirely to the action of the British courts in India. As we called attention to in the chapter on Mohammedan law, there are four distinct systems of jurisprudence in India, all in full operation and effect. Two of these systems, the English law created by the British Parliament and Anglo-Indian law created by the legislative councils, are territorial in jurisdiction, while the others, namely, the Hindu law and the Mohammedan law, are purely personal. That is to say, the Hindu and Mohammedan systems of law apply respectively to Hindus and Mohammedans, and to no one else. At the beginning of British rule in India the government of the East India Company gave the native inhabitants of the country the privilege of being governed by their own laws in matters relating to marriage, inheritance and religious usages. In the regulations promulgated by Warren Hastings in 1772, and since in the various civil acts and charters establishing the law courts, the rule is expressed that in cases relating to marriage, inheritance, succession and religious usages the Hindu law shall apply to the Hindus. The Privy Council decided in the leading case of Abraham v. Abraham that under the regulations and acts a Hindu is a man by both birth and religion a Hindu. In the case of Raj Bahadur v. Bishen Dayal, Mr. Justice Straight said: "If we are correct in our view that the status of a Hindu or Mohammedan under the first paragraph of Section 24, Act VI., of 1871, to have the Hindu law made the 'rule of decision,' depends upon his being an orthodox believer in the Hindu or Mohammedan religion, the mere circumstance that he may call himself or be termed by others a Hindu or Mohammedan, as the case may be, is not enough." CASTE.--The idea of caste or class distinction so completely permeates every religious and secular institution of India that one cannot understand Hindu law without having in mind the principal features of this social system. The Vedas, upon which the whole structure of Hindu religion and ethics professes to be based, give no countenance to the present regulations of caste. The Sanscrit word for caste is _verna_, meaning colour, and this leads us to the true origin of caste distinctions. The _verna_, or colour, of the light-complexioned Aryan invaders who entered India from the Northwest and the _verna_ of the dark-skinned aborigines whom they subjugated established the first distinctions of caste. There are four principal castes to-day among the Hindus, namely: 1. _Brahmin_, or priest caste. 2. _Kshatriya_, or warrior caste. 3. _Vaisya_, or merchant caste. 4. _Sudra_, or servant caste. A fifth class, called _Pariahs_, are of no caste, and are practically outside the law. The first three upper classes or castes are also called "twice-born" men, because they are supposed to be regenerated or "born in the Veda." So, generally, are the distinctions of caste recognized that Pope Gregory XV. found it advisable to publish a bull sanctioning caste regulations in the Christian churches of India. The Hindus attach great importance to the marriage. It is regarded by them as one of the ten _sankars_, or sacraments, necessary for the regeneration of men of the twice-born classes, and the only sacrament for women and _Sudras_. The Veda says: "A Brahmin immediately upon being born is produced a debtor in three obligations: to the holy saints for the practice of religious duties; to the gods for the performance of sacrifice; to his forefathers for offspring." Manu ordains that "after a man has read the Vedas in the form prescribed by law, has legally begotten a son and has performed sacrifices to the best of his power, he has paid his three debts and may then apply his heart to eternal bliss." The Hindus hold the marriage relation in such respect that the question of the validity of a marriage is rarely submitted to the courts for judicial determination. The law of the Catholic Church treats marriage as a sacramental contract dissoluble only by death, but the Hindu law goes further by declaring against the remarriage of widows. This rule of Hindu has been legislated upon by Act XV. of 1856, which makes a Hindu widow eligible for a new marriage, but the marriage of a widow has never been the practice among Hindus. Mann says: "A widow who from a wish to bear children slights her deceased husband by marrying again brings a disgrace on herself here below and shall be excluded from the seat of her lord." Polygamy, or plurality of wives, is permitted by the Hindu law, but is rarely practiced. Polyandry, or plurality of husbands, is contrary both to the Hindu law and the provisions of the Indian Penal Code. The three higher castes are permitted to intermarry with the caste next below their own, the issue taking the lower caste or sometimes forming a new caste. In many ways the theoretical inferiority of the _Sudra_ absolves him from the restraints which the letter of the law lays on the three higher castes. AGE FOR MARRIAGE.--In the Hindu law want of age, though a disqualification for other purposes, does not render a person incompetent to marry. Ordinarily the lowest age is eight years for females, but a girl may be married before that age if a suitable husband is procured for her. If none of the persons who ought to give a girl in marriage do so before she completes her eleventh year she may choose a husband for herself. A girl must be given in marriage before she attains puberty. The reason for marrying off a girl before she reaches the age of puberty is that the marriage should be free from sexual desire. PARENTAL CONSENT.--The Hindu law vests the girl absolutely in her parents and guardians, by whom the contract of her marriage is made, and her consent or absence of consent is not material. The consent of the parents is required for the marriage of minors--that is, persons under fifteen years of age. The parties authorized to give or withhold such consent are the father, the paternal grandfather, the brother, a _sakulya_ or kinsman in succession. The want of parental consent, or the consent of the person standing in _loco parentis_, does not invalidate a marriage otherwise legally contracted. IMPEDIMENTS.--Disqualifications or impediments are absolute or relative. A disqualification which renders a party incompetent to marry any person is absolute, while one which simply renders a party incompetent to a particular person is termed relative. A woman with a husband living is absolutely disqualified from contracting a new marriage. Idiots and lunatics are disqualified for civil purposes only, although the Hindu law permits a wife to desert or disobey an insane husband. Deaf and dumb persons, or those afflicted with incurable or loathsome diseases, are competent to marry, but cannot insist upon conjugal rights. Among the three highest castes (the twice-born) impotency is not an impediment to marriage, but for those of the lowest caste (_Sudras_) it is a disqualification. A twice-born husband who was impotent was for centuries permitted to appoint a kinsman to beget issue by his wife, but this is now forbidden. The female must be younger than her husband and of the same caste. A girl whose elder sister is unmarried, or a man whose elder brother is unmarried, is not eligible for marriage. MARRIAGE CEREMONIES.--Ceremonies of some sort, religious or secular, are requisite to the concluding of a valid marriage. The ceremony may be that of "walking seven steps" or merely the exchange of a garland of flowers. The question as to whether or not a marriage is ceremonially complete depends largely upon what ceremonies are customary among the parties concerned. Consummation is not necessary to complete a marriage. In thousands of cases girls under ten years of age have been married to males older than themselves who have died before their wives were old enough for the consummation of marriage. Such a situation has brought about the sad plight of the tens of thousands of child widows in India. If a girl of eight years of age is ceremoniously married to a man and immediately thereafter returns to her father's home to await the time when she shall be old enough to assume conjugal duties, she is from the moment the ceremony of marriage is completed a married woman, and if her husband dies the next day she is an eight-year-old widow whom no orthodox Hindu will marry. When the British first came to India it was a general practice for widows to voluntarily submit to be burned alive with the corpses of their deceased husbands. This savage practice was called a _suttee_, and by it millions of child and adult widows were burned to death. By a provision of the Indian Penal Code such a death is treated as a suicide, and all who participate in the offence are holden for homicide. We are glad to record that the British Government has so thoroughly enforced the law in this respect that _suttees_ have been entirely abandoned by the Hindus. CONSANGUINITY AND AFFINITY.--Baudhayana says: "He who inadvertently marries a girl sprung from the same original stock with himself must support her as a mother." Marriage between ascendants and descendants is unlawful. Marriage is also prohibited between a twice-born man and a woman who is of the same _gotra_, or primitive stock. The woman must not be the daughter of one who is of the same _gotra_ with the bridegroom's father or maternal grandfather. Neither must she be a _sapinda_ of the bridegroom's father or maternal grandfather. _Sapinda_ in the Hindu law means descended from ancestors within the sixth degree. That is, from persons in the ascending line within the seventh degree from the intending husband. The _sapinda_ relationship ceases after the fifth and seventh degrees from the father and mother respectively. A _Sudra_ has no _gotra_ of his own. DIVORCE.--Divorce in the ordinary sense is unknown to the Hindu law. The Hindus contend that even death does not dissolve the bond of marriage. The single case in which a dissolution of a Hindu marriage can be granted by a court of law is under Act XXI. of 1860, which was enacted to meet the complications which arise when one of the spouses becomes a Christian. If the convert, after deliberation for a prescribed time, refuses to cohabit further with the other spouse, the court may upon petition declare the marriage to be dissolved, and either party is free to marry again. There are some low castes in the Bombay Presidency, in Assam and elsewhere, among whom the practice of irregular divorce and remarriage of the parties prevails. The causes for divorce are mutual consent of the parties and ill-treatment. These divorces, although permitted by custom, are not recognized by the courts. RESTITUTION OF CONJUGAL RIGHTS.--A Hindu husband or wife can maintain a lawsuit to obtain a judicial separation against a deserting spouse for restitution of conjugal rights, but a Hindu convert to Christianity cannot obtain such a decree if his wife remains a Hindu. CHAPTER XXXIV THE CHINESE EMPIRE. A treatise on the marriage and divorce laws of the world would be incomplete without a chapter dealing with the law of the most compact nationality in history. Chinese law is the growth of many centuries and is based on immemorial custom, but with all its antiquity and wealth of precedent, it has not yet passed the system of exacting testimony from witnesses by physical torture. The first evidence of civil law to be found in Chinese history or tradition is the recognition and regulation of the status of marriage. Its fundamental principle is parental authority. Though in a sense systematic, the laws of China are not as yet in a concentrated or scientific form. Under the present dynasty the collection of laws which is applied by the courts is called _Ta Ch'ing Lii Li_. Two things are to be said in favour of the laws of China--the first being that every Chinese is within the law, and that the person is considered of more importance than property. MARRIAGE.--A Chinese is not permitted to have more than one wife. He may, however, in addition, keep concubines, or "secondary wives." Both wives and concubines have a legal status. The wife is considered to be a relative of all her husband's family, but a concubine is not so considered. It is an offence for a man to degrade his wife to the level of a concubine, or to elevate a concubine to the level of his wife. The consent of the parties, which is the first requisite of a valid marriage in Christendom, is legally of no consequence in China. It is the consent of the parents of the respective parties which is material and necessary. The consent of the father of the woman is sufficient, and if he is dead then the mother may give the necessary consent. The preliminary stages of a Chinese marriage are elaborately formal. It is the duty of the families of the intended bride and bridegroom to ascertain whether or not the parties have the capacity to conclude marriage. Certain introductions and exchange of social courtesies follow. If everything appears satisfactory the parties acting on behalf of the intended bride send a note of "eight characters" to the parties acting in behalf of the prospective bridegroom, which note is practically a proposal of marriage. If the terms of the proposed marriage are agreed upon the next thing is for the representatives of the parties to draft and execute the articles of marriage. The courts will hold it to be a marriage if the betrothal is regular, even if there is no consummation. It is essential to a legal marriage that the written consent of the woman be obtained; it is not sufficient that the woman herself gives free consent. Fraud makes the marriage a nullity. In his book, "Notes and Commentaries on Chinese Criminal Law," Mr. Ernest Alabaster tells of the case of "Mrs. Wang." It appears that an old reprobate, knowing that the girl's parents would refuse him because of his ugliness of face and character, sent a handsome young nephew to represent him in the marriage negotiations. The impersonation brought about the signing of the contract, and the old man secured possession of the bride. Soon after the wedding he ill-treated his young wife and one night she strangled him. The court decided that the woman had committed an unjustifiable homicide and that the victim was not her husband. IMPEDIMENTS.--Intermarriage is forbidden between ascendants and descendants and between kinsmen by consanguinity or affinity up to the fourth degree. Marriage is also forbidden between persons having the same _Hsing_, or surname. A free person cannot contract a valid marriage with a slave. A mother and daughter must not marry father and son. Marriage is absolutely forbidden to a Buddhist or Taoist priest. An official must not marry a wife or buy a concubine within his jurisdiction. It is unlawful for a person of official rank to take as his secondary wife or concubine an actress, singing woman or a prostitute. No one must marry a female fugitive from justice. Marriage of a deceased brother's widow is against the law. It should be remembered that it is a criminal offence to contract an invalid marriage. For example, not very long ago a prince of the Imperial family purchased a singing girl as his secondary wife or concubine. The marriage was declared null and he was sentenced to receive sixty blows for attempting to contract an illegal secondary marriage. WIDOWS.--A widow or divorced woman can contract a new marriage, but she must first obtain consent of her parents and wait until the customary period of mourning is completed. DIVORCE.--As an institution divorce is almost as ancient in China as marriage. Marriage is not considered as in any respect a religious contract, but as a status created principally for the comfort of man and the continuance of the race. As woman is considered an inferior creature to man she has not the same rights in or out of a court of law. However, she can obtain, against her husband's will, an absolute divorce on the following grounds: 1. Impotency. If her husband is unable to perform the sexual act a wife can compel him to grant her a deed of divorcement. 2. If a man sells his wife to another the woman is _ipso facto_ divorced from both men. 3. If a man induces his wife to become a prostitute, or accepts her earnings as such, the wife is entitled to a decree of absolute divorce. We can find no other causes which entitle a woman to a divorce from her husband. His adultery, cruelty, abandonment, neglect or drunkenness furnishes no ground for a dissolution of the marriage. For a husband divorce is very easy. The so-called "seven valid reasons" enable any man so inclined to practically discard his wife when it pleases him. The seven "reasons" or causes are: 1. Talkativeness. 2. Wantonness. 3. Theft. 4. Barrenness. 5. Disobedience to parents of husband. 6. Jealousy. 7. Inveterate infirmity. The last of the seven reasons permits a man to get rid of a wife who is incurably ill or infirm. MUTUAL CONSENT.--If husband and wife mutually agree upon divorce the courts, by ancient custom, will ratify their agreement. Although the Chinese law does not consider the consent or non-consent of the parties as of any consequence in creating the status of marriage, it, by a peculiar process of logic, permits them to end the relationship whenever they mutually please so to do. Perhaps one can easier understand the marriage and divorce laws of the Chinese Empire by remembering that all Chinese laws are supposed to follow the instincts of the people (_Shun po hsing chi ching_). GENERAL OBSERVATIONS.--The present laws and customs of China are but little changed from the time of the Tang Dynasty, which reigned nearly thirteen hundred years ago. Then, as now, a poor man who finds himself unable to support his wife, may, if she has no parents to take her back, sell her to his richer neighbour. The judicial machinery of the Chinese Empire is the elaboration of centuries of customs and precedents. In the first instance parties seeking legal redress apply by complaint to the lowest court having jurisdiction within the district of their domicile. If dissatisfied with the decision an appeal can be made first to the District Magistracy, then to the Prefecture, and after that to the Supreme Provincial Court. If the questions involved are sufficiently important a further appeal may be prosecuted before the Judiciary Board, which sits in Peking and is the highest judicial court in the Empire. In theory a defeated suitor can appeal from the Judiciary Board to the fountain of law and justice, His Imperial Majesty, the Emperor of China, but there are few cases, according to the record, which have gone so far. We are of the opinion that Chinese law will never approach a scientific system until China recognizes the necessity and value of having professional advocates and jurists to point out the way to better things. INDEX A Alabama, 151 Alaska, 152 Alberta, 207 Algeria, 137 Argentina, 218 Arizona, 153 Arkansas, 154 Australia, 238 Austria, 67 B Belgium, 53 Brazil, 223 British Columbia, 206 Bulgaria, 129 C California, 155 Canada, 199 China, 265 Colorado, 156 Connecticut, 158 Cuba, 227 D Delaware, 159 Denmark, 81 District of Columbia, 157 E Egypt, 137 England, 16 F Finland, 94 Florida, 161 France, 38 G Georgia, 162 Germany, 60 Greece, 132 H Hindu Law, 256 Holland, 100 Hungary, 72 I Idaho, 163 Illinois, 164 India, 137 Indiana, 165 Indian Territory, 165 Iowa, 166 Ireland, 36 Italy, 46 J Japan, 104 Jews, Laws for, 96 K Kansas, 167 Kentucky, 167 L Louisiana, 168 M Maine, 169 Manitoba, 199 Maryland, 169 Massachusetts, 170 Mexico, 209 Michigan, 172 Minnesota, 172 Mississippi, 173 Missouri, 174 Mohammedan Law, 137 Montana, 175 Morocco, 137 N Nebraska, 175 Nevada, 176 New Brunswick, 206 Newfoundland, 208 New Hampshire, 177 New Jersey, 177 New Mexico, 179 New South Wales, 246 New York, 179 New Zealand, 250 North Carolina, 184 North Dakota, 184 Northwest Territories, 207 Norway, 85 Nova Scotia, 207 O Ohio, 185 Oklahoma, 186 Ontario, 204 Oregon, 187 P Pennsylvania, 187 Persia, 137 Portugal, 117 Prince Edward Island, 199 Q Quebec, 204 Queensland, 248 R Rhode Island, 189 Roumania, 121 Russia, 89 S Saskatchewan, 199 Scotland, 32 Servia, 125 South Australia, 248 South Carolina, 190 South Dakota, 190 Spain, 110 Sweden, 76 Switzerland, 57 T Tasmania, 248 Tennessee, 191 Texas, 192 Transylvania, 72 Turkey, 137 U United States of America, 148 Utah, 193 V Vermont, 193 Victoria, 243 Virginia, 194 W Washington, 195 West Australia, 248 West Virginia, 196 Wisconsin, 197 Wyoming, 198 
60238	----	images of public domain material from the Google Books project.) THE NEW JERSEY LAW JOURNAL PUBLISHED MONTHLY VOLUME XLV JANUARY, 1922 No. 1 EDITORIAL NOTES. At least three decisions of nation-wide import were made by the United States Supreme Court in December. The first, American Steel Foundries v. Tri-City Trades' Council we give, probably in full, elsewhere, as taken from the "New York Times." It is on the subject of strikes and picketing, and speaks for itself. Another tested the law of Arizona, which made picketing, etc., that tended to destroy an employer's business, lawful, and the law was held to be unconstitutional, although by a divided Court, 5 to 4. Among the dissenters was Mr. Justice Pitney. The main opinion was lengthy and explicit, and we think, fair and just. The third was on the subject of the "open competition" plan by which members of the National Hardwood Manufacturers' Associations believed they were getting around the Sherman Act, but are now told by the Court their practices are in restraint of trade. The Association was prosecuted by the Government in the Federal Court at Memphis, and a permanent injunction was obtained against continuance of the practices of filing by hardwood concerns of reports of business operations with a central organization, such reports being open to all other members of the organization. The opinion holding the conduct of the members of the Association to be illegal was delivered by Justice Clark. As usual, of late, there were dissents, this time by Justices Holmes, Brandies and McKenna. The meetings of the members resulted in concerted action, Justice Clarke stated, to raise prices regardless of conditions, and the plan was termed by him "misleading and a misnomer" and "an old evil in a new dress and a new name." He added that instead of a plan to promote open competition it operated to restrict competition. It was futile, he said, to argue that the plan was merely to furnish information which could not be otherwise obtained. The secretary of the Association, through an expert statistician, utilized replies to questionnaires and other information furnished by the members of the Association as the basis for bulletins and advices. These replies also were utilized in predicting and promoting advances in prices, by withholding of products from the market, awaiting higher prices. * * * * * In the second case referred to in the preceding paragraph the United States Supreme Court thus laid down the rule as to the "secondary boycott": It is to be observed that this [the case in hand] is not the mere case of a peaceful secondary boycott, as to the illegality of which courts have differed and States have adopted different statutory provisions. A secondary boycott of this kind is where many combine to injure one in his business by coercing persons against their will to cease patronizing him by threats of similar injury. In such a case the many have a legal right to withdraw their trade from the one, they have the legal right to withdraw their trade from third persons and they have the right to advise third persons of their intention to do so when each act is considered singly. The question in such cases is whether the moral coercion exercised over a stranger to the original controversy by steps in themselves legal becomes a legal wrong. But here the illegality of the means used is without doubt and fundamental. The means used are the libelous and abusive attacks on the plaintiffs' reputation, like attacks on their employers and customers. Threats of such attacks on would-be customers, picketing and patrolling of the entrance to their place of business and the consequent obstruction of free access thereto--all had the purpose of depriving the plaintiffs of their business. To give operation to a statute whereby serious losses inflicted by such unlawful means are in effect made remedyless, is, we think, to disregard fundamental rights of liberty and property and to deprive the person suffering the loss of due process of law." * * * * * It is with deepest regret that an announcement in our obituary columns in this issue includes the name of ex-Justice Bennet Van Syckel as a deceased member of the Bar and jurist. Those who practiced under him in the Circuits in former years, or who knew him as the bright, fully-equipped ornament of the Supreme Bench, well understand that his passing cuts off the last link between the Supreme Court of a few decades ago and the Court as constituted to-day. Justice Van Syckel was approaching 92 years of age, and many were the hopes that he would retain his health and vigor of intellect until he reached an even hundred years. The Courts wherein he sat, and the present older members of the Bar will see to it that his merits are officially pronounced; we can only say now that no eulogy to be given to his memory will do him over-justice. His dignity, fairness and sound legal judgment on the Bench were such that he deserved even greater honors than he received and his private life was immaculate. An excellent portrait of the Justice as he appeared in 1905 will be found in the Law Journal of that year (Vol. 28, facing p. 6). * * * * * The following seems almost an impossible propaganda to come even from Germany at this time, but especially from one of the sources named. The "Pathfinders League," of Stuttgart, we assume to be a Social (practically Soviet) organization, but the "Christian Young People's Societies," must be at least a quasi-religious body. A circular sent out and published by these organizations on July 22 last says: "War is the most exalted and holiest expression of human activity. Some day the hour of battle will strike for us, too, when we, as officers, go forth against the enemy. The people, which is a minor politically, will then fall into line of itself. In the days of secret, happy expectation there then goes from heart to heart the cry: 'With God for King and Fatherland!' Still and deep in German hearts there must live the joy of battle and a longing for it. So, let's laugh to scorn those old women in men's breeches who fear war and wail that it is horrible and criminal. No and again, No! War is beautiful, and it is glorious to die for the Fatherland and the hereditary ruling house. Our great ally above will lead us splendidly." In New York City there is a municipal ordinance requiring landlords, who are to give tenants under a lease hot water, to furnish it or be arrested, fined and, if thought wise by the magistrate, imprisoned. Recently a landlord in the Bronx was found guilty of failure to supply hot water, and it appeared that the landlord and tenant had somehow become on unfriendly terms; that there was a special valve in the house which permitted hot water to go to one apartment and to be shut off from another; and that the landlord closed down the valve to shut off the hot water of the complaining tenant. Thirty days in prison and a fine of $250 was the penalty imposed by the Justices in Special Sessions. * * * * * Among the important decisions in the Court of Errors and Appeals in this State on Nov. 14th last was one unanimously confirming the conviction of the negro, George Washington Knight, for the murder of Mrs. Edith Marshall Wilson, the church organist at Perth Amboy, in March last, which murder the prisoner had confessed. (See N. J. L. J., April, 1921, p. 102). Although the Court was unanimous in upholding the conviction of Knight, three of the Judges, Chancellor Walker, Justice Kalisch and Judge Black, differed with the view of the majority as to the constitutionality of the Mackay Act of 1921 (Laws, Ch. 349), empowering the Court of Errors and Appeals to review the sufficiency of the evidence in criminal cases, where the defendant elects to take up the entire record. Mr. Justice Kalisch wrote a minority opinion, concurring in the affirming of the conviction but differing with the majority as to the constitutional question involved. Chief Justice Gummere, in the main opinion, said that the statute of 1921 was not novel, but is similar to an Act passed more than twenty years ago, but subsequently repealed, under which the Court of Errors set aside a conviction for murder in the first degree. The first ground of attack was that the Mackay Act violates the provisions of the Constitution relative to trial by jury, which provides that the guilt or innocence of a defendant shall be determined by an impartial jury. The Court said, however, that the question of the verdict being in accordance with the weight of the evidence cannot be raised by the State, but only by the defendant. Therefore, the Court held, the constitutional protection afforded by a jury trial is not lessened by the law under which the accused may elect to have the evidence reviewed. The Court also held that the right given the Court of Errors to order a new trial where the evidence seemed insufficient was not a novel proposition, but was rather extending to the reviewing tribunal a power now existing in the trial Court; that such an extension of power, provided it does not trespass upon the inherent powers of any other Court, is not unconstitutional. Having decided the legal questions involved, the Court reviewed the testimony upon which Knight was convicted and concluded it was sufficient to justify the jury's verdict of murder in the first degree. Later, Mr. Justice Bergen, before whom the Knight trial was held, resentenced the prisoner to be electrocuted. * * * * * At the Convention of the Real Estate League of New Jersey in Newark recently, Mr. Frank B. Jess, of Haddon Heights, whose experience on the State Board of Taxes and Assessment has made him an authority on the subject of taxation, its inequalities and shortcomings, stated with positiveness that the personal property tax is a failure and always will be a failure. "It is obvious," he added, "that if all the taxable property in the State should be assessed at its true value, or at a uniform percentage of true value, the burden of taxation would be apportioned with exact equality. The chief objective of the assessing system of the State, therefore, is uniformity of valuation. It would be foolish to suppose that this ideal can ever be wholly attained. But it is more foolish not to aim at its attainment. The scheme of assessment should be devised with that end in view and so framed as to facilitate its achievement. The prevailing scheme provides as many assessors as there are taxing units. Even if each assessor were an expert the grand result inevitably would be a great variety of valuations. As so many assessors are not experts the absence of uniformity is all the more conspicuous." Mr. Jess said that each assessor or assessing body is now a separate machine, functioning independently in a particular territory. He declared that an assessor should be a part of a system having a central power plant functioning for the entire State. * * * * * After three days of argument by lawyers in the Federal case in New York City concerning the intent of and Court decisions on the Sherman law against trusts, Judge Hand imposed fines of $3,000 each on the seven corporations and ten individuals who had pleaded guilty to violating the Sherman Act. The defendants were those of the Terra Cotta Trust, and included companies in New Jersey, at Perth Amboy and Rocky Hill. Nearly at the same time Judge Van Fleet, so well known as a jurist of California, but descended from an old New York and New Jersey family, did better as to real justice with four members of the Tile and Mantel Trust, who also had pleaded guilty to violations of the Sherman law, by sentencing three of them to pay a fine of $4,000 each and to spend four months in prison, and the fourth to pay a fine of $2,000 and to spend two months in prison. There were also fines on others. The fines on all members of the combine aggregated nearly $170,000. It is clear that only by heavy fines with imprisonment added can the Sherman law against widely-extended and injurious trusts be made to act as a deterrent of such trusts in the future. * * * * * The Attorney-General of the United States, in an address at the last meeting of the American Bar Association in Cincinnati, gave, as suggestions, six rules for the handling of labor disputes. They were: "First--It is an undisputed fact that the public have a right to know what the quarrel is about in every actual or threatened strike or lockout and similar controversies. "Second--There should be some definite agencies in government for ascertaining these facts fully and making an impartial finding by those specially qualified both by temperament and training to do this particular kind of work; and such finding should be reported so that it will be a reliable source of knowledge to which students and publicists and statesmen can resort. "Third--Compulsory jurisdiction over these two factors to compel them to submit to an inquiry of this sort is not only desirable but just. "Fourth--At present our study of this question has not been sufficiently thorough to warrant legislation compelling the acceptance of such findings by the parties thereto. Therefore, the jurisdiction of the proper agency should be obligatory upon the parties to submit to the investigation; the acceptance of the finding by the parties should be voluntary. "Fifth--The experience of the past shows that in most cases full, accurate, reliable publicity has been sufficient to compel an adjustment of these cases. Public sentiment is a controlling factor and it is important, in justice to both of the parties, that it should depend upon something more accurate than successful propaganda. "Sixth--In the course of time knowledge of the nature and causes of these controversies derived in this way may crystallize public sentiment to the extent that laws can be enacted making such controversies impossible." It will thus be seen that Mr. Dougherty does not favor obligatory arbitration in the case of labor disputes, his view being that public sentiment will decide them. But we have always been clear in our own mind that there must be compulsory acquiescence in the findings of whatever tribunal hears such disputes; otherwise one party or the other will, too often, not acquiesce. * * * * * In a recent Chancery case, where an injunction had been ordered by the Court restraining a corporation from doing anything while the matter of a permanent receivership was under consideration, a voluntary petition in bankruptcy was filed. In proceedings against certain officers of the corporation for contempt in thus disobeying the injunction, Chancellor Fielder suspended sentence upon the ground that, as a mitigating circumstance, they had been badly advised, and said: "I think that the conduct of counsel in the case was absolutely reprehensible. Counsel was bound to know the law, and if he did not know the law, he ought to have had common sense enough to know that an order of this Court restraining any act of the corporation was sufficient to forbid the filing of a voluntary petition in bankruptcy. If the order to show cause had been directed to counsel I think I would find him guilty of contempt of Court, and I don't think that any mitigating circumstance could be offered in his behalf." * * * * * Our readers are receiving this month, in addition to the usual charming article by former Judge Frederic Adams, a Fourth of July oration delivered by Mr. Justice Parker of our Supreme Court in the Church of St. Mary's-by-the-Sea, Northeast Harbor, Maine, two and a-half years ago. Because this address is not recent gives special reason for its publication now. We only learned recently of this address and, after seeing it, requested of the Judge the privilege of publishing it in the Law Journal, a request finally granted. It seemed to us not only that the general matter and fine, clear statement of facts and elevated American sentiments warranted the preservation of this address, but also that our readers might be interested to compare what some of our best minds thought of events at the close of the Treaty at Versailles and what has really happened since in American and world affairs. SOME REMINISCENCES, MOSTLY LEGAL. BY HON. FREDERIC ADAMS, LOS ANGELES, CAL. III. ANECDOTES OF THE HARVARD LAW SCHOOL AND OF ITS FAMOUS TRIUMVIRATE. I have on my shelves a beautiful book. "The Centennial History of The Harvard Law School," 1817-1917, published by The Harvard Law School Association, 1918. This work, of about four hundred pages, has been written and compiled by the Faculty, with the assistance of graduates. It is admirably printed on excellent paper and liberally illustrated. The whole story of the great School is spread before the reader: its modest beginning; its Golden Age of Story and Greenleaf; the sedate and conservative era of the Triumvirate, Parker, Parsons and Washburn, in which my own lot fell; and then Langdell, the apostle of a new idea, and his many brilliant and interesting followers. The centre of gravity has been shifted from the text-book to the case and this is philosophical, for evidently the cases are the original evidences of the law. But the idea of taking up what Thackeray calls "the vast legend of the law" as a direct subject of study was so revolutionary that it won its way very slowly. I quote from the "Centennial History" a spirited sketch of Professor Langdell's opening, and of the early history of the new system: "The day came for the first trial of the new method of study and teaching. The class gathered in the old amphitheater of Dane Hall--the one lecture room of the School--and opened their strange new pamphlets, reports bereft of their only useful part, the head-notes! The lecturer opened his. "'Mr. Fox, will you state the facts in the case of Payne v. Cave?' "Mr. Fox did his best with the facts of the case. "'Mr. Rawle, will you give the plaintiff's argument?' "Mr. Rawle gave what he could of the plaintiff's argument. "'Mr. Adams, do you agree with that?' "And the case-system of teaching law had begun.... Consider the man's courage.... Langdell was experimenting in darkness absolute save for his own mental illumination. He had no prestige, no assistants, no precedents, the slenderest of apparatus, and for the most part an uncompromising _corpus vile_. He was the David facing a complacent Goliath of unshaken legal tradition, reinforced by social and literary prejudice. His attempts were met with the open hostility, if not of the other instructors, certainly of the bulk of the students. His first lectures were followed by impromptu indignation meetings. 'What do we care whether Myers agrees with the case, or what Fessenden thinks of the dissenting opinion? What we want to know is: "What's the law?"' "A controversy at once sprang up as to the efficacy of this method of instruction. To most of the students, as well as to Langdell's colleagues, it was abomination. The students cut his lectures; only a few remained. But these few were the seed of the new School. They included several men who afterward attained national reputation: James Barr Ames, his greatest pupil and successor; Franklin G. Fessenden, member of the Superior Court of Massachusetts; Austen G. Fox, a leader of the New York Bar; Edward Q. Keasbey, of New Jersey; James J. Myers, Speaker of the Massachusetts House of Representatives and one of the leaders of the Boston Bar; and Francis Rawle of Philadelphia, a President of the American Bar Association. Working out his cases with these enthusiastic young men, patiently and thoroughly as he always worked, Langdell did nothing to force upon others the acceptance of his system. In a few years Ames was appointed to the Faculty, and brought youth, fire, virility into the contest; but for many years the two were alone in their use of the new method. It was ten years before others acceded to it." The fact was that something had to be done. The School was on the down grade. I state this no more strongly than the History does at pages 21 to 25. This was the natural result, I think, of an extremely inefficient method of instruction. Nothing could be less effective than a series of lectures which no one was bound to attend, without recitations or examinations, so that it was possible for a student to receive his degree after a year and a half of residence without learning any law. Such a system might do for very zealous and ambitious students, but not for a large class. That the School held up its head as long as it did was due to two things: the _genius loci_, which counted for a good deal, and the personal influence and example of the professors, who were superior men. I write with the reserve proper to one who is considering an educational policy of which he has had no personal experience, but it seems to me that, in the last analysis, Professor Langdell's new idea was this: to rouse, develop, discipline and cultivate the judgment, and so, as far as possible, to equip each student with that valuable attribute, easily recognized but hard to define or describe, which is called a legal mind. It is judgment that does it. A mechanic of good judgment is already half a lawyer; an attorney of poor judgment will always remain in the apprentice class. I am reminded how I first saw Langdell's name. After I left the Law School I was for a time a member of the New York Bar. As I went upstairs to my office at No. 16 Wall street, I would see above me, at the top of the next flight, the sign of a law firm, Pierrepont, Stanley & Langdell. I knew about Pierrepont, who was a Yale man of the class of 1837, and I somehow got the idea, perhaps unjust to Mr. Pierrepont, that one of the junior partners was an erudite man who acted as purveyor of legal ideas to the head of the firm, somewhat as Sydney Carton did for Mr. Stryver in "A Tale of Two Cities." The selection of Mr. Langdell as a professor was due to the sagacity of President Eliot. An interesting and valuable part of the History is a biographical list of the ninety-one men who were teachers in the School during the century covered by the book. One of the names is that of Justice Francis J. Swayze, of the New Jersey Supreme Court, who began in the Centennial year, 1917, a course of lectures on Legal Ethics, which he continues. I now go back to my own time at the Law School. There was a small Jersey group there. Nehemiah Perry, Henry Young, Job H. Lippincott, Abram Q. Garretson and John R. Emery were men who, like Othello, "have done the State some service." When Vice-Chancellor Emery passed away, I became the only survivor of the little company. Professor Joel Parker, as I knew him, was a courteous gentleman of the old school, sixty-nine years of age, _tenax propositi_ public-spirited, courageous and combative, who had established a high reputation as a jurist by his opinions as Chief Justice of New Hampshire for fifteen years. As a conservative Whig he had supported the Compromises of 1850, but presided over a meeting of the citizens of Cambridge, held June 2, 1856, to denounce the assault on Senator Sumner. The conclusion of his speech on that occasion showed the mettle of the man. "For myself, personally, I am perhaps known to most of you as a peaceful citizen, reasonably conservative, devotedly attached to the Constitution, and much too far advanced in life for gasconade; but, under present circumstances, I may be pardoned for saying that some of my father's blood was shed on Bunker Hill, at the commencement of one revolution, and that there is a little more of the same sort left, if it shall prove necessary, for the beginning of another." The Professor had a true instinct. The attack on Senator Sumner was the first act of civil war; the John Brown raid the second; the firing on Fort Sumpter the third. Professor Parker, when Chief Justice of New Hampshire, had a memorable struggle with Judge Story, who held the United States Circuit Court, over a question under the Bankrupt Law. The facts are stated on pages 245 and 246 of the History of the Law School. In my time it was thought that Professor Parker did not like Story, or Story's rather showy law books. He probably would have agreed with the following remarks on page 12 of the History: "Story was the kindly master who, in his lectures, smoothed the rough places and was profuse with instruction and help. We may suppose his lectures, like his books, to have been learned, fluent, often original and profound, sometimes, however, dodging a difficulty rather than trying to overcome it." I have heard it said that Story stands higher as a writer of opinions than as a legal author. There was in my day a student named Stevenson who was assigned to argue one side of a Moot Court case before Professor Parker, sitting as Judge. Stevenson, who knew and well understood the Professor, in the course of his argument read a few sentences from one of Story's books and then, pausing and looking at the Judge, said: "May it please your Honor. There follows this passage about half a page of Latin. I have not read it, but it looks as though it were on our side." Professor Parker, during the War for the Union was _pro_ the administration _saepe_; _pro lege, pro republica semper_. He had, of course, profound reverence for the writ of habeas corpus. A student once stated a strong case of treasonable conduct and asked him if he would not suspend the writ in such a case. "No, sir," said the Professor, "I would not suspend the writ of habeas corpus, but I would suspend the corpus." Professor Theophilus Parsons was a son of the great Chief Justice of Massachusetts of the same name. He was sixty-six years of age when I knew him, a man of the world who had touched life at many points, a voluminous writer of law books and an instructive and entertaining lecturer. There was a side to his nature which he did not show to his class. I used to have among my books a small volume of sublimated Swedenborgian doctrine written by him. It was difficult to associate it with the genial and jovial man you saw in the lecture room. I have tried to assimilate this message from the New Jerusalem, but have failed, no doubt because of some invincible ignorance and innate incapacity of my own. Professor Parsons saw something of Europe after graduating from Harvard in 1815, and I think was at St. Petersburg with William Pinkney, then American minister, when the Grand-duke Nicholas, who was afterwards Emperor, was married to a Prussian princess in July, 1817. He described Mr. Pinkney as coming in from the ceremony in a real or affected huff, and complaining, as he tore off his gloves, that a beggarly Grand-duke had obliged him to get up at eight o'clock in the morning. "But, Mr. Pinkney," said Parsons, "the wedding was not until twelve o'clock." "True, sir," said Pinkney, who affected to be a man of fashion, "but can a gentleman dress in less than four hours?" Professor Parsons wrote an interesting life of his father, who was an old-fashioned colossus of the common law. Indeed, the Chief Justice took pretty much all knowledge for his province, and was a classical scholar and good mathematician. I moved, or was moved, at the early age of three months, from my birthplace in New Hampshire to the parish of Byfield, Massachusetts, near Newburyport, and lived there for seven years. The father of Chief Justice Parsons was a Congregational minister and pastor of the church in Byfield for more than forty years. When I visit Byfield, as I love to do, I read upon a tablet on the parsonage lawn "Birthplace of Theophilus Parsons." The Chief Justice had an extraordinary knowledge of the early history, laws, institutions, manners and local usages of the settlers of New England. I had among my law books one that used to remind me of him. A young lawyer once asked him what was the best law dictionary. "Kinnicum's is the best," was the answer. A few days later, the young man said to him, "I have asked everywhere for 'Kinnicum's Law Dictionary' and cannot find it." The Chief Justice laughed and said: "Ask for Cunningham's." The book which I had was Cunningham's "Law Dictionary," in two folio volumes. A similar incident is told of Judge Story, who was also a 'longshore man, born in Marblehead, a place which abounded in local peculiarities, as we know from Whittier's version of "Flud Oireson's Ride." Judge Story was opening the Circuit Court of the United States at Salem, and the clerk, as he went over the panel, called "Michael Treffery." No answer. "Michael Treffery!" No answer. "That is strange," said the clerk, "I saw the man here a few moments ago." "Let me see the list," said the Judge. He glanced at it and said, to the clerk, "Call Michael Trevay." The clerk: "Michael Trevay." "Present," said a juror. The clerk: "Why did you not answer?" "You never called my name." Mr. Parsons, before he became Chief Justice, was sitting in his house at Newburyport one Sunday morning, when a client and friend, who lived at Salem, was announced and said: "Mr. Parsons, I beg your pardon for making a call on Sunday. I would not do it if it were my own matter, but the case is that I am guardian for some minor children and a matter of importance to them is coming up in the Probate Court at Salem to-morrow morning. I have had no opportunity to get advice and so I have taken the liberty to ask your counsel." "Never practice law on Sunday," said Parsons. "Why, of course I understand that," said the other, but I thought that perhaps, under all the circumstances, you might be willing to aid me." "Never practice law on Sunday," said Parsons. "Good day, Mr. Parsons, I am sorry to have troubled you." "Stop a minute," said Parsons, "do you want advice as to the moral aspect of the case or as to the legal aspect of it?" "Why, as to the legal aspect, of course. I am satisfied that my position is fair and right. I want to know whether it will stand law." "Well, now, I will tell you," said Parsons, "I don't know anything about your case and I don't want to hear anything about it, but I know you, and if you think that your position is fair and just you may go ahead on that and I will be responsible for the law." Someone asked him, when he was Chief Justice, if it were true that he never lost a case while he was at the Bar. "Yes," said the Chief Justice, "that is true. I never lost a case, but my clients lost a great many." Chief Justice Parsons, because of his preoccupation with his thoughts, was sometimes careless about his dress. He was a clubable man, to use Dr. Johnson's phrase, and some of his intimate friends thought that in a genial hour a useful hint might be given him. So it was arranged that Mr. Harrison Gray Otis should invite the group to dinner and manage the matter. Mr. Otis was the one to do it, for he was a man of taste, quite "the glass of fashion and the mould of form," of great personal elegance and public distinction, and a graceful entertainer. Accordingly, the plan was carefully staged, and during the dinner the conversation took a natural turn toward social customs, usages, modes of dress and the like, and finally Mr. Otis, in a natural way, but with some distinctness, said: "For my own part, I always put on a clean shirt every day." The Chief Justice, who had apparently been giving his undivided attention to his dinner, here looked up and said: "Why, Otis, what a confoundedly dirty fellow you must be! I can wear a shirt for a whole week." Jeremiah Mason told of a professional conference between himself, when quite a young man, and Mr. Parsons before he became Chief Justice. Among the elements in the case was a conveyance of parish land by a clergyman, and its nature and effect were under discussion. Mr. Mason suggested that it might be held to be a covenant to stand seized. Mr. Parsons turned to him quickly and said: "Mason, I like that; that is a good idea of yours; in the relation between a clergyman and his parish there is some analogy to that between a man and his wife." Mr. Mason, in telling the story, said: "I didn't know, or had forgotten, that a consideration of blood or marriage was necessary to support a covenant to stand seized, but I said nothing, and as soon as I got home I took down my books and began to study the subject, and found the blood spurting out between the very lines of the page." It is grateful to recall the remaining member of the Triumvirate, Professor Emery Washburn, for he was an enthusiast, an indomitable and joyous worker at the age of sixty-three. I do not say that Parker and Parsons were not enthusiasts in their own way. They must have been so to accomplish what they did, but neither Parker nor Parsons manifested and imparted the contagious enthusiasm about their daily work which carried Washburn and the class with him along the arid path of the law of real estate. He was always busy and always accessible and perhaps, on the whole, the most useful member of the Triumvirate. He had been a leader of the very able Bar of Worcester and Governor of the Commonwealth, and was the author of valuable law books, with which the profession is familiar. I had a piece of good luck with him in my first and only Moot Court case. As I stood up to open the case, Professor Washburn, sitting as judge, said: "Mr. Adams, instead of reading the printed case, suppose you just state the facts in your own way." It happened that I was about to ask him to let me do that and was already prepared. So I came off with flying colors and probably got more credit for readiness than I deserved. I quote from the "History" at page 285: "In describing his first official visit to the Law School, late in 1869, President Eliot speaks of knocking at the door of Washburn's room and, entering, received the usual salutation of the ever-genial Governor Washburn. 'Oh, how are you? Take a chair,' this without looking at me at all. When he saw who it was, he held up both his hands with his favorite gesture and said, 'I declare, I never before saw a President of Harvard College in this building. Then and there I took a lesson from one of the kindest and most sympathetic of teachers.'" There is, however, historical proof that on at least one prior occasion a President of Harvard was in Dane Hall. John Quincy Adams one day mounted his horse at Quincy and rode over to Cambridge to see President Quincy, who greeted him and pretty soon suggested that they call on Judge Story in his lecture room. The two distinguished visitors were gladly welcomed and were installed by Judge Story, one on each side of him, and he, at their request, proceeded with his lecture. Both of these eminent gentlemen were Stoics. President Quincy went through the New England winters without wearing an overcoat, and Mr. Adams, when at Washington, used to swim in the Potomac and light his own fire in winter and, I believe, read a chapter of the Old Testament and a chapter of the New Testament and wrote in what Henry Clay (who had been tripped up by Mr. Adams on some question of fact) called "that infernal diary of his in which he has put down everything that has happened since the adoption of the Federal Constitution"; and all this before breakfast. As Judge Story proceeded with the rapid and even flow of his lecture, he became aware of a smile upon the faces of his class. A quick glance to either side of him explained it, and, with a cautionary gesture and in a confidential tone, he said: "Young gentlemen, you see before you two melancholy examples of the evil effect of early rising. Always remember that it is of a great deal more importance to be awake after you are up, than simply to get up early." There is another story which does not relate to the Law School, but which I will venture to tell, both as a picture of early Cambridge days, and as a manifestation of Harvard scholarship under adverse circumstances. There was then no Harvard Bridge and no horse-car line, and, when the culture of Cambridge went to Boston to hear Emerson lecture in the winter evening, the best available vehicle was a large, open, four-horse sleigh, owned and driven by a liveryman named Morse. On one such evening the lecture was over, and the return trip was on and so was a fine, powdery snowstorm. The sleigh proceeded across the Cambridge bridge and then through East Cambridge and so to Cambridge, stopping now on one side of a street to discharge passengers at a small house, and now on the other side at a big house, and so on, and the fine snow kept sifting down and Morse, perched high up in front, was growing more and more ghostly, when out from the sleigh rose the voice of James Russell Lowell, intoning a fragment from Horace, adapted so as to embrace the charioteer of the sleigh: "_Pallida Mors[e] pulsat pede pauperum tabernas Regumque turres_," which Conington translates: "Pale Death, impartial, walks his round; he knocks at cottage-gate And palace portal." I have found both pleasure and profit in reviewing these associations, especially the memories of our wise and friendly teachers, and of fellow-students who were soon to be entrusted with the grave interests, the sacred issues of life, liberty and property. As experience and observation widen, one realizes how thin is the crust which separates civilized society from the elemental fires below, and comes more and more to value influences which preserve and institutions which stabilize. Such an influence, such an institution is the Harvard Law School. Such an influence, such an institution is the Brotherhood of the Bar, indissoluble save by death or dishonor. [_To be Continued_] OUR THIRD BIRTH OF FREEDOM.[1] BY JUSTICE CHARLES W. PARKER. [1] Fourth of July Address at the Church of Saint Mary's-by-the-Sea, Northeast Harbor, Maine. Published herein by request of the Editor of the Law Journal. See "Editorial Notes." The exercises of to-day are a revival, temporary perhaps, but still a revival, of the good old custom of celebrating the anniversary of the Declaration of Independence by public meetings, with prayer and song, the reading of the Declaration, and a patriotic address. It was a good custom, though it tended to foster some erroneous ideas, particularly that England as a nation was blameworthy in Revolutionary times, rather than the political machinations of George III, the politician king. But it was a good custom for all that, and it is regrettable that it gave place to noise and fireworks. In the more recent years the date has been significant of other great crises in our history than that of Revolutionary times. That was, of course, the greatest of all, and never to be forgotten, as it marks the definite transition of thirteen colonies into thirteen States, organized for war purposes as a nation. There had been over a year of war, beginning with the skirmish at Lexington and the British retreat, followed quickly by Ticonderoga, Bunker Hill, and the investment of Boston. During the fall and winter there were the episodes of the burning of Portland; the capture of Montreal (later relinquished); the capture of Norfolk in December; Arnold's heartbreaking expedition to Quebec through Maine forests in the dead of winter; the battle of Moore's Creek, N. C., early in 1776, called the "Southern Lexington," and, to crown all, the evacuation of Boston. These events and their concomitants, say the historians, made inevitable the Declaration of Independence, though the struggle began only as one for greater colonial self-government and modification of the taxing system. It was our first "birth of Freedom," which has been re-born more than once since. I said the date marked other great crises in our history, and take time to mention two of them, both in the memory of living men. The first, and the greater, was in the midst of our Civil War, when the news of the twin victories of Gettysburg and Vicksburg flashed over the land. Dark days were still to come, and men were still discouraged; the war was to be proclaimed a failure by a great political party, but the power of the Rebellion was broken, and, after July 4, 1863, the setbacks to the cause of nationality were but temporary and comparatively insignificant. A second great crisis was safely passed. The third great Independence Day, great for what it brought to others than ourselves, was thirty-five years later, when the tremendous news came that the Spanish squadron, practically all remaining efficient of Spain's navy, had been destroyed off Santiago. That day marked the downfall of Spanish power on this continent, and the liberation of oppressed peoples in both hemispheres; the culmination of a righteous war against a civilized and honorable foe, whose principal shortcoming was a hopelessly antiquated point of view and inability to deal intelligently with modern conditions. These great anniversaries all marked the definite passing of crises; the present one rather falls within a protracted period of crisis than marks the passing of one. If we were to celebrate the anniversary of the greatest crisis of recent times, I should name July 18th, 1918, when, as most of those here will remember, the glad peals of the bell above us sounded the news that the great allied offensive had opened. Of this more in a few minutes. But July 4 as a date does not even mark the signing of the peace treaty. It is suggestive, however, of two things to be borne in mind at this time: the genius of our country as a lover of liberty and fair play, and the relation of that genius concretely to the problems of the recent past, and the present, and the immediate future. The announcement of such a subject gives me pause, for it is one for mature consideration and careful discussion by the best of statesmen. But there are some considerations, rather obvious perhaps, but still worthy of inclusion at this time, which I should like to present. I mentioned a moment ago our love of liberty and fair play. With these goes a constitutional tendency to mind our own business, let other people's business alone, and to avoid interference until convinced of its necessity. Until 1914 we felt secure on our own continent, gave no offense and sustained none. Fearing no war, we deemed preparation a waste of money and time; we were not disposed to pay expensive insurance premiums when our house was too far removed from others to be in danger of conflagration; against internal incendiarism we thought ourselves guarded. The warnings of Manila Bay in 1898 and Venezuela a few years later made no impression. Confident of our ultimate resources, we assumed no one would attack to court ultimate defeat; and above all, fair-minded ourselves, we were utterly incredulous of unfair-mindedness in others. Wise and farseeing men gave warning from time to time, but the impressions were momentary. And so, when in 1914 the assassination at Serajevo was quickly followed by an impossible ultimatum, and this in a very few days developed into a general European war, while our minds and souls revolted at a great injustice, our continental habit of thought resisted the suggestion that we should interfere to right that wrong. We did not see far enough; there were those who did; and I heard two wise men, summer residents here, agree in this very town in August, 1914, that this nation should take part, and at once. But public opinion did not run in that channel; nor was it led into it by our chosen rulers. These also were shortsighted, however their vision may have been clarified subsequently. We were told that a people should be neutral in thought as well as in deed; and so we stood by and watched Belgium, a neutral country, ravaged and pillaged; France invaded and destroyed; Serbia depopulated; Russia crushed. A great crisis like the battle of the Marne stirred men's souls, but without bringing home to us as a nation the ultimate danger to our liberty. The consummate outrage of the "Lusitania" made an impression never effaced, but the rising indignation of the country was met with the caution that "a man may be too proud to fight," and this crisis passed over also. But the great giant was stirring in his sleep. Trumpet calls came from men high in public esteem, among whom it is sufficient now to mention Roosevelt and Leonard Wood. "Preparedness" was their reveille. Our young men heard it, and in 1916 at Plattsburgh, and I think elsewhere, sprang up the training camps. The colleges offered their facilities; and although in the fall of 1916 there was still, as in 1860 and 1861, a large proportion of "peace-at-any-price" men, so large in 1916 as to permit the election of a President on the party slogan "He kept us out of war," the time was fast growing ripe. Infatuated Germany, confident of victory in Europe and of later victory on this continent, or risking all on the submarine issue, went a step too far, and the giant woke up. Woke up,--yes; but about as helpless as Gulliver on the Island of Lilliput. The "man mountain" was tied fast with the cords of unpreparedness, red tape, departmental inefficiency, official jealousy and hostile intrigue. As in 1812, in 1847, in 1861 and in 1898, there was little or nothing ready; all had to be created. The lowering of the thunder-cloud had been unheeded. We had some destroyers and battleships and cruisers; these were sent at once where most needed. But to our shame, be it said, we had no trained men except the little regular army; no great guns; no appreciable number of field pieces; no machine guns; no small arms even, although our .30 cal. Springfield rifle is justly pronounced the best small arm in the world. I have shot it and know it well. They cost at that time about fifteen dollars apiece. A million of them would have cost 15 million dollars, a sum which in these days makes us laugh at its insignificance; it is one-half of one per cent. of our first Liberty loan. We had not even the special tools to make barrels for these small arms in quantity, and actually had to use English tools to make English type rifles, greatly inferior to our own, to get any at all for our men. The other day I saw it announced with pride in the newspapers that our rifle had won in competition over all others; but we did not have them when wanted, and probably have not made them yet. We had no field pieces to use abroad, and our artillery was equipped with the French .75. A few naval guns were landed and mounted toward the termination of hostilities. The aeroplane scandal is known of all men. And it was a year after we declared war before we entered Europe in force, and equipped then with English rifles and French field guns; and our men were transported to Europe mainly on British ships. But in this trying period several things stand out clear and bright, and as inspirations for the future. Two are psychological: the spirit of Americans of alien descent, and the participation of our great educational institutions; one, official as well as psychological, the selective service draft. The patriotism of the native American of the old stock goes, of course, without saying. The true ring of our heterogeneous population of foreign extraction was to many a joyful surprise. That so many who had never seemed to amalgamate with our customs, were largely uneducated, and did not even speak our language, should respond so willingly and gladly to the call to the colors, was a source of some amazement. Not being in their confidence or intimacy, many of us little realized their loyalty: which reminds me of an Italian bootblack who in conversation told me that he wished to travel. I spoke of the beauties of Naples and Sorrento and that neighborhood, and was rather abashed when he said: "Yes, but I would rather see my own country first." I hope that lesson will always be fresh in memory. The same spirit of Americanism marked all nationalities, not excepting the German. The lists of draft registrants from, let us say, the east side of Manhattan Borough, reminded one of the Epistle for Whitsunday: "Parthians, and Medes, and Elamites, and the dwellers in Mesopotamia, and in Judæa, and Cappadocia, in Pontus, and Asia, Phrygia, and Pamphylia, in Egypt, and in the parts of Libya about Cyrene, Jews and proselytes, Cretes and Arabians," all heard, and, with the deep realization of newly liberated peoples, showed themselves proud to answer the call. A recent war or Liberty loan poster is most suggestive. You read on it a list of men's names, mostly unpronounceable, and suggestive, in the language of the same Scripture just quoted, "of every nation under heaven," and this is summed up in the phrase, "Americans all." Truly, a fitting tribute to our adopted citizenry, equal in loyalty, bravery, and self-sacrifice to the best of the old Americans. Among them, as just noted, the German names stand out boldly. They are so numerous, in fact, as to attract less notice in this country than they deserve; let us hope that they will be noticed and taken to heart in the misguided country where such names originated. I would that our American army, made up in large part of such men, could occupy Germany for a time as it formally occupied Cuba, for its own good, and give a much needed object lesson in the theory and practice of free institutions. These men, as I have said, were largely uneducated. I turn now for a moment to those in our great seats of learning, and to the heads and faculties and trustees of those institutions. Their stand was doubtless one to be expected, but is still worthy of remark. That the best blood in England suffered the most losses I think is conceded. That would have been the case with us if the war had broken on us as it did on Great Britain. As it was, our boys courted the posts of danger--aviation; submarine chasers; balloon observation, and so on. Some left college to enter the service; others stayed at college awhile, but in order to train and perfect themselves in the art of war. The colleges themselves became military schools; the dormitories barracks. For a short time some anxious mothers held back, and it is little wonder that they did. But it was not for long, and soon the woman who could wear a pin, with one, two, or more stars in it on her bosom, gloried in it, while she who wore a star of gold, in all her grief still cherished the solemn pride, as Lincoln called it, of having laid so costly a sacrifice upon the altar of her country. Whether the son was a student or ploughboy, a bootblack or factory hand, or the son of a millionaire, the feeling was the same. In fact, there was a tendency at first among the people at large to suspect the well-to-do and moneyed classes of holding back their sons. This soon wore off; and one of the most inspiring as well as instructive sights I ever saw was on this very island; the parade of war mothers on the Bar Harbor fair grounds; women in all walks of life, some with gold stars on their badges. College presidents who encouraged the entry of students into military service came in for adverse criticism, but that soon passed, and now that college, the largest percentage of whose students and graduates went into the service, points with the greatest pride to its record in that respect. I think, however, that the greatest achievement of the war, and the one that makes most for the future safety of our country, is the success of the selective service draft. All the books ever written, all the lectures ever delivered, attacking the pacifistic tendencies of our people, fail to accomplish anything of consequence in comparison with that achievement. Whether our people have undergone a great psychologic change I know not. It is certain that at no time previously had they submitted willingly to be drawn into service. For a century and a quarter militia and volunteers were the basis of the armed power on land. During the Civil War drafting meant riots. During all our prior history bounties for enlistment were an accepted fact. Some of us may have looked into General Upton's great book called the "Military Policy of the United States." Until recently it was withheld, for some reason, from general publication. It is the basis of a later work by another author, "The Military Unpreparedness of the United States," which appeared about 1916. Both exhibit in startling fashion the fundamental evils of volunteering and bounties. But not until the stress of this great war did the old theories give way. We had a real man as Provost Marshal General, and his name is Enoch H. Crowder, and my own University (Princeton) and others as well, honored themselves recently by conferring the LL.D. degree on him. I care not whether he evolved the draft machinery himself or whether it was suggested by others. Probably it was a result of both processes; at least he knew a good thing when he saw it, and, like other large men, was unconcerned about whose idea it was. Here was the problem: several million men of age 21 to 31 to be listed, with particulars about them; those available for military service to be selected; from these, a certain number to be drawn by lot. The system used in the Civil War was hopelessly inadequate; army officers could not be spared to supervise the lists; how were the names to be obtained? How recorded? How drawn? The origin of the fundamental plan was told me by General Crowder himself on the day when he received his Princeton degree. He said that he was in his office racking his brain for a method of registry that would not take a year to operate, when a Congressman came in, and to him he told his difficulties. The interview terminated much like that of Alice in Wonderland and the Caterpillar, who told her how to change her height as it crawled off through the herbage. As the anonymous Congressman was going out through the door, he said over his shoulder: "If they can elect a President in one day, they can register in one day." Let us thank God that the General had good ears, and excellent communication between them and an active brain. "Elect in one day"--48 States; each with so many counties; each county having so many municipalities; each municipality so many election districts; civil, not military, officers for all of them; officers known to and knowing the people; Governors; mayors, election boards. _Why not_? Here is the machinery ready made, and at hand! All that is needed is to get it going. Forty-eight Governors responded enthusiastically; all forty-eight kept the great secret ready to pass it on to local officials; the result we all know. Two other things were needed; the willingness of those that were of draft age to come and say so; and the confidence of the public in a fair drawing. The latter was secured by the use of master numbers applicable to every district; the former came naturally as a result of the system itself. Every man of draft age became qualifiedly a volunteer, and marched to the polling place, saying: "Here I am when wanted." To this the abolition of bounties and substitutes, the curses of the old system, largely contributed. These are three of the great things for which we should give thanks on this Fourth of July: the solidarity of Americanism; the leadership of our Universities, and a practical and popularly acceptable method, now a precedent for all time, of calling up the man power of the nation. A fourth is the resultant of them all: a great army of young men (as has been said many times), future leaders in political life, keenly alive to the real freedom of our American system and determined to uphold it and to stand no nonsense about it. But for the consciousness of our possessing this element, and but for our faith in it, we might well look with most anxious foreboding at many troublesome and dangerous questions now uppermost in our national life. For in the midst of triumph sounds the note of anxiety--many discordant notes in fact. Will the treaty finally be ratified? Will peace last? Will the Germans respect their promises and fulfill them? Or will they, already talking again of a scrap of paper, straightway begin to prepare for a fresh coup twenty-five years or so hence? Must the peace-loving peoples of the world still apply themselves to that most distasteful of all tasks, the invention and manufacture and practice of means of destroying life and property in war? And what about internal affairs? Are individual enterprise and talent to be smothered by rule? Is the Constitution of the United States a worn-out old one-horse shay, ready to drop to pieces all at once? Is the Senate a back number? Is the peaceful rule by majority to be exchanged for Bolshevik dictatorship? Is our transportation industry to be ruined by taxes and rate control at one end and cost of labor at the other? Should we take an active part in the affairs of the Eastern hemisphere, and invite European and Asiatic powers to help regulate our continent; in short should the national policy called the Monroe Doctrine be abolished? These and many similar questions are pressing for solution. They are not mere fancies; they are not partisan issues, though many stentorian shouters proclaim them such; they are live and vital questions which must be solved and will be solved, doubtless at great cost in treasure and perhaps at some cost in blood. That they will be rightly solved in the end I have no doubt. Nothing is settled, said someone, I forget who, until it is settled right. It is for you and me and all of us to bear in mind that our work is only half done: that our sacrifices and labors and efforts during this great war that is just closed, I hope forever, are but the beginning, and that we owe it to our country and our children to do what we can to encourage sanity, deliberation and temperance of thought, speech and action in all classes of the people. Mild as that sounds, it is a stupendous task to perform. There rarely was a time when unthinking people were not more inclined to listen to a demagogue rather than a statesman; and few people think at all; still fewer think straight. It is a rebellious people, saying "Prophesy not unto us right things, speak unto us smooth things, prophesy deceits." It is a time of epithets rather than of logic, of lying epigrams rather than solid truths. All the wealthy, it seems, are corrupt; all money in large amounts is tainted; even the scales of justice are accused of falsity. Ebullitions of this kind often indicate an undercurrent little suspected. I realize that I am saying little or nothing that is new, and I have no new methods or theories to offer for meeting the situation. One thing is certain; before we can teach other people to think clearly, we must be able to think clearly ourselves; to formulate and make others realize the real issues; to perceive the fallacy or confusion in the opposing line of thought, and point it out without offense. It is a maxim among lawyers that a case well stated is half argued, and nothing can be more to the point at this time. We still have real statesmen; let us listen to them with attention and take care not to hurry too much in deciding. Impulse leads to irretrievable error much oftener than does deliberation. Sober second thought is usually the better. But, notwithstanding this anxiety, let us rejoice in the great victory of Liberty over autocracy and militarism. As we look back over the last five years we see many a vision; some dreadful nightmares, others with the seeming of the good God taking direct part in the affairs of men. The rape of Belgium, the miracle of the Marne, the tedious deadlock in the trenches, the ghastly failure at Gallipoli, the collapse of Rumania, the tragedy of Russia, the debacle in Italy, the heroism of Ypres and Passchendaele and Verdun; then the ever present dark shadow of the submarine; the agonized cry of exhausted England and France for men, men, men, as one offensive broke towards Calais, another towards Amiens, another straight for Paris by way of Chateau Thierry, while our brave boys seemed to be training interminably; the halting of the Hun at Belleau Wood and Chateau Thierry; the crouch of the American wildcats for their spring; until, as men's hearts seemed to fail them, and the cry went up, "How long, O Lord, how long?" the little bell of St. Mary's-by-the-Sea rang as it had never rung before. Peal after peal: some good news: what is it? "The Allies have attacked; the front between Soissons and Chateau Thierry is all crumpled up: the Germans cannot hold the salient." Smash after smash: it is our turn now; in Flanders, in Picardy, in Champagne, in Lorraine: by Britain, by France, by America, singly, doubly, and all together; each day a new victory headlined; the military lines approaching the French boundary; the thumbtacks moved each day on the war maps; St. Mihiel salient wiped out; Rheims freed of bombardment; Argonne Wood, our present day battle of the wilderness, takes time and its awful toll of human lives, but yields, for the first time in history, to an attack by American troops; Grand Pré and open country beyond. Forward again, until a great railroad line is cut, and Sedan, the catastrophe of 1870, becomes the final triumph of 1918. How we watched the telegraphic bulletins! How we studied the maps! Until, after one false report of an armistice, the real armistice came, and our peace-loving people, joint victors in the greatest war of all time, turned into a horde of lunatics. What a day it was, that eleventh of November! I was in Boston to attend the wedding of a nephew, a Colonel of Artillery, who had commanded his regiment at Cantigny and had later been ordered to this country in connection with organization and training of troops. The guests had to walk, as no vehicle could thread the crowd. Late editions of the papers contained the armistice terms in full, and, as our somewhat numerous family was gathered for five o'clock tea, one member was deputed to read the terms aloud, and there were attentive listeners. After he had finished, no one spoke for a moment; and then a voice said, "That seems to cover the ground." Truly we have much to thank God for, this Fourth of July. We have left undone some things that we ought to have done, and we have done some things that we ought not to have done; but I cannot say now that there is no health in us. Once again we have had a new birth of freedom; once again we highly resolve that our dead shall not have died in vain; once again we resolve, and I think that we have shown by deeds our determination, that "government of the people, by the people, and for the people shall not perish from the earth." AMERICAN STEEL FOUNDRIES v. TRI-CITY TRADES COUNCIL. (U. S. Supreme Court, Dec. 5, 1921). _Strikes--Picketing--The Clayton Act--Circumstances to Be Considered in Injunction Case_. [NOTE--The following case on picketing is so important, being the latest and a final decision of the highest Court in the United States on a matter which has been treated differently by various Courts, that we reproduce the opinion here, as published in the "New York Times."--EDITOR]. TAFT, Ch. Justice: This is a picketing case. Only two men in the employ of the Foundries had responded to the calling of the strike by the Tri-City Council. They were picketers, were defendants, and were enjoined. Only one of them was a member of a union of that council. The case involves, as to them, the application of Section 20 of the Clayton Act, of which the provisions material here are those which forbid an injunction in behalf of an employer against, first, persuading others by peaceful means to cease employment and labor; second, attending at any place where such person or persons may lawfully be for the purpose of peacefully obtaining or communicating information; third, peaceably assembling in a lawful manner and for lawful purposes. The Act emphasizes the words "peaceable" and "lawful" throughout the phrases which were used. We do not think that these declarations introduced any new principle into the equity jurisprudence of the Federal Courts. They are merely declaratory of what was the best practice always. Congress thought it wise to stabilize this rule of action and to render it uniform. Its object was to reconcile the rights of the employer in his business and in the access of his employés to his place of business without intimidation or obstruction, on the one hand, and the right of the employés, recent or expectant, to use peaceable and lawful means to induce prudent principles and would-be employés to join their ranks, on the other. If, in their attempts at persuasion or communication, those of the labor side adopt methods which, however, lawful in their announced purpose, inevitably lead to intimidation and obstruction, then it is the Court's duty--and the terms of Section 20 do not modify this--so to limit what the propagandists do as to time, manner and place as to prevent infractions of the law and violations of the right of the employés and of the employers for whom they wish to work. In going to and from work, men have a right to as free passage without obstruction as the streets afford, consistent with the right of others to enjoy the same privilege. We are a social people and the accosting by one of another in an inoffensive way and offer by the one to communicate and discuss information with a view to influencing the other's action, are not regarded as aggression, or a violation of that other's right. If, however, the offer is declined, as it may rightfully be, then persistence, importunity, and following do become unjustifiable annoyance and obstruction which is likely soon to savor of intimidation. The nearer this is to the place of business, the greater the interference with the business and especially with the property right of access of the employer. Such an attempted discussion attracts the curious, or, it may be, interested bystanders. They increase the obstruction as well as the aspect of intimidation which the situation quickly assumes. In the present case, under the conditions which the evidence discloses, all information tendered, all arguments advanced and all persuasion used were intimidation--they could not be otherwise. It is idle to talk of peaceful communication in such a place and under such conditions. The numbers of the pickets in the groups constituted intimidation. The name "picket" indicated a militant purpose, inconsistent with peaceful persuasion. The employés were made to run the gauntlet. When one or more assaults or disturbances ensued, they characterized the whole campaign, which became effective because of its intimidating character, in spite of the admonitions given by the leaders to their followers as to lawful methods to be pursued, however sincere. Our conclusion is that picketing thus instituted is unlawful and cannot be peaceable, and may be properly enjoined by the specific term of "picketing" because its meaning is clearly understood in the sphere of the controversy by those who are parties to it. We are supported in that view by many well-reasoned authorities, although there has been contrarity of view. A restraining order against picketing by that name will advise earnest advocates of labor's cause that the law does not look with favor on an enforced discussion of the merits of the issue between individuals who wish to work and groups of those who do not, under conditions which subject the individuals who wish to work to a severe test of their nerves and physical strength and courage. But while this is so, we must have every regard for the Congressional intention manifested in the Act to the principle of existing law which declares that ex-employés and others properly acting with them shall have an opportunity, so far as is consistent with peace and law, to observe who are still working for the employer, to communicate with them and to persuade them to join the ranks of his opponents in a lawful, economic struggle. Regarding as primary the rights of the employés to work for whom they will, and to go freely to and from their place of labor, and keeping in mind the right of the employer incident to his property and business to free access of such employés, what can be done to reconcile the conflicting interests? Each case must turn on its own circumstances. It is a case for the flexible, remedial power of a Court of equity which may try one mode of restraint, and if it fails or proves to be too drastic, may change it. McGANN CO. v. LABRECQUE CO. (Essex Circuit Court, Jan., 1922). _Action of Trespass--Lease and Sale of Property--Limitation of Term--Jurisdiction of District Court_. Case of Joseph F. McCann, trading as The McGann Company, against La Brecque Company. Action at law. Trespass. Mr. Milton M. Ungur for Plaintiff. Messrs. Burnett, Sorg, Murray & Duncan for Defendant. (CONCLUSIONS). DUNGAN, J.: This is an action of trespass brought by the plaintiff against the defendant for the wrongful removal of plaintiff's goods from the defendant's premises under the following conditions: P. Ballentine & Sons, a corporation, demised the premises in question to defendant by lease dated August 1st, 1917, for a term commencing November 1st, 1916, and terminating April 30th, 1926. The lease provided: "It is further understood and agreed between the parties hereto that a sale of the property by the party of the first part shall terminate this lease upon six months' written notice to the party of the second part; and, in lieu of compensation, it is hereby agreed that the rent shall be waived during the six months notice to vacate." By deed dated October 15, 1918, proved October 30, 1918, and recorded October 31, 1918, P. Ballentine & Sons conveyed the premises in question by warranty deed to the plaintiff, subject to the above tenancy. By endorsement dated April 30, 1918, made upon the lease, P. Ballentine & Sons assigned said lease and all of the rights of the lessor thereunder, to the plaintiff. October 30, 1918, there was served personally upon defendant a notice, dated on that day, signed by both the grantor and the grantee in the deed last mentioned, as follows: "You will please take notice that the premises leased by you from P. Ballentine & Sons by written lease dated the first day of August, 1917, have this day been sold to LaBrecque Company, Inc., and notice of the cancellation of your said lease is hereby given you pursuant to that clause of your lease reading as follows: 'It is further understood and agreed between the parties hereto that a sale of the property by the party of the first part shall terminate this lease upon six months' written notice to the party of the second part, and in lieu of compensation it is hereby agreed that the rent shall be waived during the six months' notice to vacate.'" The defendant did not remove from said premises at the expiration of six months and the statutory demand for delivery of possession was personally served on defendant. After the expiration of said period, he refused to vacate the premises, and thereupon the defendant here instituted and prosecuted summary proceedings in the Second District Court of the City of Newark, in which Court judgment for possession of the premises was rendered May 23, 1919, and the removal of plaintiffs, being the alleged act of trespass for which this suit is brought, was, by virtue of the order of removal, made by that Court upon said judgment. There is no contention that there was any irregularity in the proceedings of that Court, if the Court has jurisdiction; but the plaintiff here insists that the provisions of the lease above quoted constituted a condition, or covenant, and not a limitation of the term, and that consequently the District Court did not have jurisdiction. The parties hereto have entered into a stipulation to submit this suit to the Court for judgment upon the complaint, answer and reply, which correctly sets forth the facts as above stated, and adds: "If the Court is of the opinion that the plaintiff is entitled to recover, judgment is to be rendered in favor of the plaintiff and against the defendant, and there is to be an assessment of the damages by a jury drawn for that purpose, reserving however all questions of law as to the measure of damages; and, if the Court is of the opinion that the plaintiff is not entitled to recover, judgment shall be entered in favor of the defendant as if said cause had been tried and a verdict in favor of the defendant had been rendered"; both parties reserving the right to appeal from the judgment to be entered. It is admitted on behalf of the plaintiff that, if the said provision of the lease constituted limitation of McGann's terms, then the District Court had jurisdiction and the plaintiff cannot recover in this suit. The jurisdiction of the District Court in such cases is confined in its application to the instant case, to "When any such person shall hold over and continue in possession ... after the expiration of his ... term," etc. Admittedly the decision of this case rests upon whether or not the sale of the premises and the notice given by the lessor and LaBrecque Company to the plaintiff ended the term of the McGann Company. If it did--if this was a limitation of the plaintiff's term,--the jurisdiction of the District Court was complete. The case of Quidort v. Bullitt, 60 N. J. L. 119, is very much in point. In that case it appeared by the affidavit filed with the Justice that the defendants, in May, 1885, leased to the prosecutor a seaside cottage at Cape May for five years, which lease was extended for two successful periods. The lease contained the following provision: "Lessors are to have the privilege of terminating the lease at any time upon giving six months' notice of their intention to do so, prior to the first day of July or any year during the lease.". On October 19, 1895, the defendants caused to be served on the prosecutor a written notice, which, after reciting the terms of the lease stated: "We have determined to avail ourselves of the privilege of terminating the lease. We now give you notice of the exercise of our privilege and of our intention to terminate the said lease on the first day of May, 1896, and demand that you surrender us possession of the leased premises at that time, in accordance with the provisions contained in the lease. This right to terminate the lease is exercised in accordance with the lease and the several extensions thereof. We shall expect you to deliver to us, on the first day of May, 1896, the cottage and bath houses mentioned in the said lease, and also the articles mentioned and set out in the inventory annexed thereto." The tenant refused to deliver possession and, on the 6th day of May, 1896, instituted proceedings before the Justice, which were the subject of review by certiorari in that case. It is insisted on behalf of the plaintiff that whether or not the quoted provision of the lease and the giving of the notice constituted a mere condition or covenant or was a limitation, was not decided in that case; but, while it is not expressly so stated, it seems to me a decision of that question was absolutely essential to a decision of the case. Chief Justice Gummere, in delivering the opinion of the Supreme Court (page 120) said: "The question for determination is whether the Justice had jurisdiction of the cause; if he had jurisdiction, then the writ in this case should be dismissed, but, if he had not, then the proceedings before him should be set aside." Again on page 122 he said: It is alleged by the prosecutor that the facts above recited did not bring the case within the jurisdiction of the Justice for the following reasons: 1. That the privilege of terminating the lease was not a term, condition or limitation of the original lease, but a special privilege, reserved to the lessors, of ending the original term." Thus it is plain that the precise question in issue in this case was before the Court, and that it was necessary for the Court, in order to reach the decision it did, to decide that the quoted provision would constitute a limitation upon the term fixed by the original lease. The case of Miller v. Levi, 44 N. Y. 490, is also applicable to this case. In that case Miller demised to Levi, reserving the right to sell the demised premises and to limit Levi's term thereon to the expiration of sixty days after notice of sale. The sale and notice specified in the lease was made. It was insisted that the Justice had no jurisdiction of the summary proceedings, because this can only be resorted to where the term of the lease of the lessee "has expired by lapse of time," which it was said was not the fact in that case. The Court said: "Immediately upon sale by Miller and notice thereof to the tenant the limitation attached to the estate of the latter, without further act on the part of Miller. There then arose a limitation of his term, to wit, its expiration on the first of May following. The act itself, in the lease contemplated, to wit, a sale without notice, created the expiration. Nothing further was necessary.... The 'term' of the lease must therefore be taken to have 'expired' on the first of May, 1864." I think, therefore, that when the leased property was sold, and the notice of sale given to McGann on October 30th, 1918, the term of McGann under the terms of the lease expired six months thereafter; that the sale and notice constituted a limitation of his term; that the Second District Court of the City of Newark, before which proceedings to remove McGann were instituted May 2nd, 1919, had jurisdiction to hear and determine the matter before it; and that, therefore, the defendant is not guilty of the trespass alleged against him. Judgment is given, therefore, against the plaintiff and in favor of the defendant. * * * * * One hunting on Sunday, in violation of statute, is held to be answerable for injuries accidentally inflicted upon a bystander by the voluntary discharge of his gun, in the Vermont case of White v. Levarn, 108 Atl. 564, annotated in 11 A.L.R. 1219, on violation of Sunday law as ground for civil action for damages. * * * * * The keeping of high explosives in a public highway in a populous community, without guard or signal, to the terror, alarm, and great danger of the citizens, is held to be a common nuisance, indictable at common law, in Kentucky Glycerine Co. v. Com. 188 Ky. 820, 224 S. W. 360, annotated in 11 A.L.R. 715. * * * * * False swearing by a witness is held to be such an obstruction of justice as to constitute a direct contempt of court, in Riley v. Wallace, 188 Ky. 471, 222 S. W. 1085, annotated in 11 A.L.R. 337. * * * * * A petition filed against a partnership by one partner alone must, under section 5a of the Bankruptcy Act and General Order No. 8, conform to the requirements of an involuntary petition and must, therefore, allege insolvency and that an act of bankruptcy was committed by the partnership. Matter of Ollinger & Perry. 47 Am. B. R. 203. * * * * * A parent who takes a deed from his child soon after it reaches majority and while it is living under his roof is held to have the burden of clearing the transaction of every suspicion, and establishing its fairness and good faith, in the Arkansas case of Shackleford v. Shackleford, 223, S. W. 561, annotated in 11 A.L.R. 730. * * * * * Giving a broker the "exclusive sale" of a parcel of real estate is held not to preclude the owner from selling to one whom he had reason to believe had not been procured by the broker, in Roberts v. Harrington, 168 Wis. 217, 169 N. W. 603, annotated in 10 A.L.R. 810, on whether an ordinary broker's contract excludes right of sale by owner. MISCELLANY SOME STATE NOTES. On Dec. 11 Mrs. Mary J. Rellstab, wife of United States District Court Judge John Rellstab, died at her home in Trenton. She had been an invalid for many years. Before her marriage, in 1905, she was Miss Mary Johnston Whittaker, daughter of the late George R. and Mrs. Mary Whittaker. Besides her husband, two sisters, Mrs. J. F. Clement of Philadelphia and Miss Emily Whittaker of Trenton, survive. Mrs. Rellstab was for many years active in church and charity work. On Nov. 25 the Supreme Court suspended three lawyers charged with unprofessional conduct: Mr. William M. Rysdyk, of Jersey City, for one year; Mr. Charles Sloff, of Passaic, for one year, and Mr. Charles K. Richmond, of Passaic, for two years. In the first two cases the cause was financial misappropriation, and in the last case an endeavor to influence a juryman. NEW JERSEY BAR EXAMINATIONS, NOVEMBER TERM, 1921. ATTORNEY'S QUESTIONS. 1. A party in a proceeding in the Orphans' Court appealed from the decree of said Court to the Court of Errors and Appeals. Was this proper? 2. A held in trust for F certain lands and also certain bonds. He died intestate, leaving two sons B and C, B being the elder. C was appointed administrator. To whom did the title to the land and to whom do the bonds descend? 3. W being under indictment by a Federal Grand Jury, applied to the Court for compulsory process for the purpose of obtaining witnesses in his behalf. His application was denied. Was the Court right? 4. A railroad company made a mortgage upon its lands, chattels and franchises. It was duly recorded as a real estate mortgage but it was not recorded as a chattel mortgage. Was it valid as to the chattels against creditors of the company? 5. S went to work for B and took two flags with him. He allowed B to use one of them and helped put it on B's building. Subsequently a hail storm destroyed it. He then sued B for the value of the flag. Should he recover? 6. G agreed to sell and deliver to J certain goods on or before the 15th of July. Instead of delivering the whole of the goods he attempted to deliver the same in instalments, the last instalment to be delivered on July 15. J refused to accept the goods. Was he bound to do so? 7. Where there is a plain repugnancy between the provisions of an original contract, and those of a supplemental one between the same parties relating to the same subject matter, which one controls? 8. S, being indebted to a number of persons, advertised and sold at public sale all of his stock to one person. Was this contrary to the Bulk Sales Act of 1915? 9. One member of the firm of W & Co. which was still in existence, without the authority of the other member, confessed a judgment to Y, a creditor of the firm. Was the judgment binding upon the firm? 10. An agent acting within the scope of his authority, did certain fraudulent acts. Was the principal liable for these acts of the agent? 11. What are the requirements to make an instrument negotiable? 12. John Smith made a will, wherein he gave his son, Thomas, a legacy of $5,000, adding that the legacy should be void if Thomas married any one of the daughters of Robert Jones. Thomas having married one of Jones' daughters, demanded the legacy, claiming that the condition was void. Was his claim good? 13. (a) How soon after the death of a testator may his will be admitted to probate? (b) How soon after the death of an intestate may administration of his estate be granted? 14. What is the difference between the relief granted in equity in cases of mutual mistake and of the mistake of one party? 15. A made a conveyance of real estate to B for the purpose of defrauding his creditors. A having died intestate, his heirs brought suit in Chancery to compel B to convey the property to them. What should the Court do? 16. B made a will leaving all his property to D, whom his (B's) mistress had fraudulently represented to him to be his child. C, the heir at law of B, filed a bill in Chancery to set aside the will on the ground of fraud. D moves to strike out. What should the Court do? 17. B sued A for slander. A pleaded that he was intoxicated at the time he uttered the slander. B moved to strike out this defence. What should the Court do? 18. A sued the City of N for damages. He showed that he had been run over by an ash-cart owned and operated by the City by reason of the driver's negligence and that the driver was drunk at the time and was drunk to the knowledge of the City's foreman when the latter sent him out with the cart. The City moved to nonsuit. Should the motion be granted? 19. A sued B for damages by reason of injuries caused by the joint negligence of B and C. He recovered a judgment which B paid. B then sued C for contribution. Could he recover? 20. A was indicted for murder of B. On the trial it was shown that A killed B while B was trying to rob him on the highway. The prosecutor contended that A could not be acquitted unless it appeared that he could not have rendered the attempt to rob abortive by any means less radical. The Court overruled this contention. Was the ruling correct? 21. A husband decided to move from New Jersey to New York. His wife refused to go with him and filed a bill for maintenance. Could she succeed? 22. How many incorporators must there be to incorporate a company in New Jersey? What facts should appear in the certificate and how should it be executed? 23. A witness at a trial desired to use his own memorandum to refresh his memory. Could he do so? 24. A promissory note on its face was made payable in money. Parol evidence was offered to prove it was payable in stock and that interest on the note was equivalent to the amount of dividends on such stock. Should this evidence be admitted? 25. A landlord and tenant were joined, as defendants, in an action for trespass arising out of the same act. An objection was made for misjoinder. Is the objection good? 26. In a civil action against a husband and wife for damages resulting from an atrocious assault committed by the wife with the encouragement of the husband, an order was made to hold both to bail. Was this legal? 27. A sued the State of New Jersey on a book account. Could he maintain his action? 28. At the hearing of a suit in Chancery, defendant set up the statute of limitations, but this defense did not appear in the answer. Could the defendant avail himself of it? 29. A bill in equity failed to state any equitable cause of action. What would you advise your client to do? 30. A and B came into the office of C, an attorney, to have him draw a deed from A conveying property to B. Before the deed was drawn, C discovered that the title to the property was defective. Should he divulge this fact to B, who has had nothing to do with his employment? COUNSELORS' QUESTIONS. 1. A final judgment in the Circuit Court was brought by writ of error directly into the Court of Errors and Appeals. Was this legal? 2. A widow, whose dower had not been assigned to her, remained upon the homestead of her deceased husband and took to her own use the crops growing thereon. Was she entitled to the same? 3. The Board of Aldermen of the City of J passed an ordinance that no one should conduct a grocery store in the city unless he was a citizen of the State of New Jersey. A, a citizen of New York, having been found guilty of violating this ordinance, certioraried his conviction to the Supreme Court. What should the Court do? 4. A mortgagee in a chattel mortgage held the same for ten days after the delivery of the mortgage and then recorded it. In the meantime a judgment was recovered against the mortgagor, execution issued and a levy made upon the goods and chattels named in the mortgage. Which has priority? 5. S agreed to take the automobile of T to a shop to be repaired and to return it after it was repaired. He took it to the shop, but failed to return it. It was later destroyed by fire while in the shop, and T sued S because of his failure to return the automobile. Was he liable? 6. A purchased an automobile from an infant and sold it to B in good faith for value, neither A nor B having notice of the infancy of A's vendor. Was it a valid sale? 7. R was indebted to S and the latter started a suit to recover the amount due. Thereupon G agreed with S that if he would discontinue his suit and wait for three months before again suing, he would be responsible for the debt. This was done. At the end of the three months was G liable? 8. L agreed to do certain work, part of it to be done on Sunday. T subsequently agreed to pay L for such work. Was he liable? 9. An agent received the instructions of his principal, knowing that in order to carry them out he would have to commit a nuisance, and did actually commit such nuisance. The person injured sued the agent. Was he liable? 10. The partnership accounts between D and M were unsettled, although they had dissolved partnership. D alone could settle them, but refused to do so. What kind of action could M institute against D? 11. Smith purchased a horse from Jones, giving him in payment a check on a bank which he (Smith) had had certified. Smith having learned that Jones had no title to the horse stopped payment on the check. Jones sued the bank which answered, setting up want of consideration for the check. Could it do so? 12. A died January 1, 1915, leaving a last will wherein he bequeathed $5,000 to his son, John, then aged 18, and $5,000 to the A hospital, and the residue of his estate to his daughter, Jane. The legacies remaining unpaid on January 1, 1918, John and the hospital sued the executors for them, claiming also interest. From what date should interest be allowed, if at all? 13. Mary Jones died June 1, 1921, leaving a husband, Peter Jones, by whom she had never had children, and three children by a prior marriage. She left a will devising her real estate to her children, but made no disposition of her personal estate. To whom did her real and personal estate go on her death? 14. B, a creditor of the insolvent firm of J. & S., agreed to sell and assign his claim to D for the sum of $2,000. B thereafter refused to make the assignment. D thereupon filed a bill in Chancery against B for specific performance. Could he maintain his action? 15. A was in possession of a house and lot. B, his neighbor, insisted that A's house was over his line by a foot. How could A test his title, B refusing to bring an action? 16. Brown, as executor of Smith, filed his final account in the Orphans' Court of Salem County, and gave notice of settlement. Grey, one of the residuary legatees, desired to have the accounting in Chancery. Was this possible? If so, how should he proceed and what must he show? 17. In the trial of an action for libel wherein plaintiff claimed compensatory damages only, defendant offered in mitigation of damages evidence that the publication was made in good faith and with honest belief in its truth. The Court excluded the offer, and this ruling was attacked on appeal. Was it correct? 18. Plaintiff, aged nine, who was struck and injured by an automobile while crossing a street, brought suit. The defense was contributory negligence. The Court charged that a child of that age could be charged with contributory negligence, but that in considering that question it was for the jury to consider whether the plaintiff had exercised the caution which would reasonably be expected from one of his years. Was this charge correct? 19. A, an owner of a dwelling house, brought an action against B, who had a tannery in the next block, alleging and showing on trial that noxious fumes from B's tannery had made plaintiff's house untenantable. B moved to nonsuit on the ground that these fumes injured a large number of houses, were a public nuisance and the only remedy was by indictment. The court refused to nonsuit. Was this ruling correct? 20. In what case and under what circumstances can a writ of error issue directly from the Court of Errors and Appeals to the Court of Oyer and Terminer? 21. At common law what right had a husband in personal property acquired by the wife during coverture? What is the rule in New Jersey? 22. The treasurer of a corporation died. There was no provision in the by-laws for the election of his successor. How can the place be filled? 23. On a bill for the construction of a will, evidence was offered of declarations made by the testator at the time of making the will as to his meaning and intention. Should this evidence be received? 24. In a suit involving an account, it appears that the defendant had admitted that a certain sum was due. The defendant, however, demanded the production of the plaintiff's books and on refusal moved for a nonsuit. Should the motion be granted? 25. How is an issue of fact created in a lawsuit? 26. Where may the venue be laid in a transitory action? 27. How should service of summons and complaint be made in a case where an affidavit of merits is desired? 28. X in a bill against Y in his prayer asked for answer without oath. Y answered under oath. How should the answer be construed? 29. A filed a bill in Chancery and failed to pray for general relief. Can he succeed if the special relief prayed for fails? 30. A, clerk in a law firm, not yet admitted to the Bar, receiving a regular salary, had his friends retain his employers. Should the firm divide its fees with the clerk? NEW JERSEY BAR ADMISSIONS, NOVEMBER TERM, 1921. The following were admitted as attorneys by the Supreme Court of this State at the November Term, 1921: ELIZABETH. Bender, Albert C., 714 Elizabeth Ave. Eisenberg, Henry M., 39 Third St. Liotta, Eugene A., 95 Broad St. Weiner, Frank S., 128 Broad St. HOBOKEN. Capelli, George A., 227 Madison St. Greenberg, William, 84 Washington St. Levenson, Jay M., 51 Newark St. Stover, Harriet C., 1037 Bloomfield St. JERSEY CITY. Blumberg, Leo, 139 Magnolia Ave. Ewald, Henry, Jr., 587 Summit Ave. Hoagland, Inez, City Hall. Kelly, James Francis, Lincoln Trust Bldg. Kriegel, Louis J., 665 Newark Ave. Kuebler, Carl S., 75 Montgomery St. McCarthy, James J., 15 Exchange Pl. Pforr, Arthur, 75 Montgomery St. NEWARK. Brown, John S., Central High School, New and High Sts. Citret, Harry, 790 Broad St. Dorgeval, Harold F., 164 Market St. Eisner, Mortimer, 585 High St. Eppston, Joseph G., 20 Clinton St. Federici, Christine A., 1025 Kinney Bldg. Kinkelstein, Milton J., 828 Broad St. Giordano, John C., 226 Hunterdon St. Halpin, Julius H., 133 Somerset St. Merz, Charles D., 324 Hawthorne Ave. Padalino, Frank P., 216 Camden St. Pollard, Robert S., 164 Market St. Potoker, Benjamin, 40 Beacon St. Reid, Alexander F., Jr., 296 Mulberry St. Schneider, Louis, 790 Broad St. Thiele, Richard Hardie, Prudential Ins. Co. Vanderbilt, Leslie L., 14 N. 9th St. TRENTON. Cella, G. Andrew, 345 Hamilton Ave. Heher, John L., 301 Commonwealth Bldg. Josephson, Leon, 1009 Greenwood Ave. OTHER PLACES. Bremer, Philip M., 41 Paterson St., New Brunswick. Colver, Frederick B., Tenafly. Dart, William A., 201 Sheen Bldg., Atlantic City. DeYoe, Willard L., U. S. Trust Bldg., Paterson. Fuller, Ernest, 60 Fairview Ave., So. Orange. Galanti, Benjamin P., Main St., Hackensack. Greenberg, Victor, 153 Grove St., Passaic. Gottko, Anthony A., 37 E. 26th St., Bayonne. Hahn, Harold H., 120 Broadway, N. Y. City. Hendler, Louis L., 165 French St., New Brunswick. Hendrickson, Frank A., 117 Main St., Mt. Holly. Jackson, George T., 706 N. Ohio Ave., Atlantic City. Loder, William W., 107 E. Commerce St., Bridgeton. Lore, Harry T., Section of Surety Bonds, Treas. Dept., Washington, D. C. McDonough, Peter J., Jr., Babcock Bldg., Plainfield. McElroy, Leon E., 115 Main St., Woodbridge. Plympton, George F., 117 Clinton Pl., Hackensack. Preston, Joseph A., 224 Park Ave., Cliffside. Ridgeway, S. Paul, 1 N. Iowa Ave., Atlantic City. Thompson, Rufus B., 505 Federal St., Camden. Visscher, Barent L., 84 William St., N. Y. City. Warsinski, Carl H., 50 Burnside Ave., Cranford. Woods, Elmer B., Glassboro. Zirpoli, Anthony P., 126 Market St., Paterson. * * * * * The following were also admitted as Counselors-at-Law: COUNSELORS. Bergen, Francis L., 2nd Nat. Bk. Bldg., Somerville. Bowne, Edward A., South River. Braelow, Joseph C., 800 Broad St., Newark. Buchanan, Jessie C., 40 W. State St., Trenton. Deegan, Joseph F., 415 Raritan Bldg., Perth Amboy. Fleming, Russell, 790 Broad St., Newark. Gunther, Edward C., Hudson Tr. Bldg., W. Hoboken. Handford, James L., 790 Broad St., Newark. Hirschberg, Samuel L., 84 Washington St., Hoboken. Isaacs, Lionel, 143 Summit Ave., W. Hoboken. Kaplan, Joseph D., 200 S. Broad St., Trenton. Kepsel, Julius A., 243 Montgomery St., Jersey City. Krohn, Herman, 763 Broad St., Newark. Lesser, Louis B., 9 Clinton St., Newark. Matthews, John A., 31 Clinton St., Newark. McCloskey, W. Durward, Thompson Bldg., Lakewood. Miele, Philip J., 75 Montgomery St., Jersey City. Morrison, George R., 190 College Ave., New Brunswick. Praissman, Maurice L., 537 Arch St., Camden. Rauch, Sylvan J., 53 Penna. Ave., Newark. Reussille, Leon, Jr., 34 Broad St., Red Bank. Satz, David M., 763 Broad St., Newark. Schroth, Godfrey W., Jr., 412 Broad St., Trenton. Schultz, Vincent, 790 Broad St., Newark. Seiler, Isaac W., 472 Broadway, Bayonne. Silberman, Paul R., 776 Broad St., Newark. Simandl, Harold, 790 Broad St., Newark. Stiles, Harry A., 95 River St., Hoboken. Stover, Charles W., 84 Washington St., Hoboken. Sullivan, James A., 15 Exchange Pl., Jersey City. Tepper, Harry L., 800 Broad St., Newark. Varbalow, Joseph, 540 Federal St., Camden. Waldman, Herman, 19 Clinton St., Newark. Zimmerman, Thomas L., Jr., 232 Rider Ave., N. Y. City. Zucker, Maurice J., 790 Broad St., Newark. OBITUARIES. EX-JUSTICE BENNET VAN SYCKEL. On Dec. 20th last, following a brief illness of bronchial pneumonia, Supreme Court Justice Bennet Van Syckel, almost ninety-two years old, the oldest alumnus of Princeton University, died at his home in Trenton. Judge Van Syckel was the son of Aaron Van Syckel, and Mary Van Syckel, of Bethlehem, Hunterdon county, and was born there April 17, 1830. His father and his grandfather were country merchants, whose ancestors came with the old Dutch settlers to that part of New Jersey. His father was considered wealthy in those days and was able to give his four sons an excellent education. When Bennet was nine years old he was sent to a boarding school at Easton. At the age of thirteen he completed his preparatory studies and entered Princeton in the Sophomore class. Three years later he was graduated with high honors and for one year was resident graduate Assistant Professor to Joseph Henry, who occupied the chair of Natural Philosophy. Bennet next took up the study of law in the office of Alexander Wurts of Flemington, and was prepared to take his law examination some time before he was of age, but as he could not be admitted to the Bar while under twenty-one was forced to wait. On the twenty-first anniversary of his birthday, at the April Term of the Supreme Court, 1851, he was admitted to the Bar, and became counselor at the June Term, 1854. He at once opened office in Flemington, and practiced there with unusual success until February, 1858, when Governor Randolph appointed him Justice of the Supreme Court. At that time he was the youngest member of the Court. His Circuits were in the counties of Salem, Cumberland, Atlantic and Cape May. When the number of Supreme Court Justices was increased from seven to nine and the districts were readjusted, Justice Van Syckel was assigned to Union and Ocean counties, where he presided twenty-nine years. He was five times reappointed. Only a few months after his last appointment in 1904 he resigned because of ill health and increasing age. After his retirement Justice Van Syckel was made the guest of the New Jersey Bench and Bar, at Trenton, upon which occasion a portrait of him painted in oil was presented to the State, to be hung on the wall of the Supreme Court room at the Capitol. A few months later another portrait was hung in the new court house in Union County, in honor of the Justice who had presided there for so many years. During his term of service Justice Van Syckel delivered some of the most important opinions of the Supreme Court and of the Court of Errors and Appeals. In the prosecution of the Linden and Elizabeth race track gamblers in 1893 he proved a terror to poolsellers, bookmakers and evildoers. It was Justice Van Syckel who wrote the opinion of the Supreme Court when an effort was made to challenge the majority cast in favor of the anti-gambling amendment to the State Constitution, and his opinion upholding the adoption of the amendments was sustained by the Court of Errors and Appeals. At the time of his death a membership in the directorate of the Prudential Life Insurance Company was the former Justice's sole business affiliation. His activity in connection with this post caused his associates to marvel. He attended all the meetings and was as alert as the youngest of his colleagues. At the Princeton alumni reunion in June, 1920, he led the Parade around the baseball field and got a big ovation from the throng in attendance. In his automobile he arose repeatedly and raised his hat in acknowledgment of the applause. In 1911, Woodrow Wilson, when Governor, appointed him and former State Attorney General Edmund Wilson, of Red Bank, as a commission to study the proposed abandonment of the Morris Canal. The report was adverse to the State taking over the canal. The Justice aided in the drafting of the "Seven Sisters" Acts, passed during the Wilson administration, which were designed to curb the activities of the trusts in New Jersey. Justice Van Syckel was a lover of outdoor sports. In his younger days he played town ball and football and later was a great admirer of baseball. He rode horseback, played golf and was a fine wing shot. In politics he was a Democrat, but politics had no place with him while he sat on the Bench. Mr. Van Syckel married Miss Mary Elizabeth Sloane, daughter of Mr. and Mrs. William Hand Sloane. He is survived by two sons, Charles S. and William S., and a daughter, Bessie. JUDGE WILLIAM R. FRANCIS. Former New Jersey State Senator and former Supreme Court Judge of Dakota, William R. Francis, died in the City Hospital in Newark, this State, on Dec. 15th last, aged 82 years. His death was the result of a fall in the bedroom of his home, 324 S. Orange Ave., Newark. Judge Francis was born in Connecticut. He was a graduate from Oberlin College and then came to Newark, where he became a member of the law firm of Titsworth, Francis & Marsh. He served as city counsel of Newark from 1871 to 1875 and in the State Senate from 1879 to 1881. In 1882 Mr. Francis went to Dakota. At that time the two Dakotas were united in a territory of the United States. After completing his term as Supreme Court Judge there he became attorney for the Northern Pacific Railroad. About twenty years ago he returned to Newark. Mr. Francis was a Master in Chancery and had offices with Scharringhausen & Hartpence, 800 Broad street. Mr. Francis is survived by a widow, who was Miss Annie Yeomans of Newark. He is also survived by a niece, Mrs. C. L. Bryant of Danbury, Conn., and a cousin, Miss Mary Francis, of Newark. Transcriber Notes: Passages in italics were indicated by _underscores_. Small caps were replaced with ALL CAPS. Throughout the dialogues, there were words used to mimic accents of the speakers. Those words were retained as-is. Errors in punctuations and inconsistent hyphenation were not corrected unless otherwise noted. On page 9, "migh" was replaced with "might". On page 22, the term "plaintiff's term" was obscured by a Google logo. On page 23, "provsion" was replaced with "provision". On page 27, the phrase "committed by the wife with the en-" was moved to the top of the page, since it seemed to be put in the wrong line initially. On page 28, the question mark after "B thereafter refused to make the assignment" was replaced by a period On page 32, "Prinecton" was replaced with "Princeton". 
35783	----	produced from images generously made available by The Internet Archive.) MORNINGS AT BOW STREET. [Illustration: "Sweet Birds that love the noise of Folly, Most musical, most melancholy"] MORNINGS AT BOW STREET: A Selection OF THE MOST HUMOROUS AND ENTERTAINING REPORTS WHICH HAVE APPEARED IN THE "MORNING HERALD." BY J. WIGHT, BOW-STREET REPORTER TO THE "MORNING HERALD." WITH TWENTY-ONE ILLUSTRATIONS BY GEORGE CRUIKSHANK. "They did gather humours of men dayly wherever they came." AUBREY MS. LONDON: GEORGE ROUTLEDGE AND SONS, THE BROADWAY, LUDGATE. NEW YORK: 416 BROOME STREET. 1875. LONDON: BRADBURY, AGNEW, & CO., PRINTERS, WHITEFRIARS. ADVERTISEMENT TO THE ORIGINAL EDITION. This volume consists of certain of those Bow Street Reports which have appeared from time to time, during the last three years, in the columns of the _Morning Herald_. The very favourable notice which they then met with from the public, has induced the author to select some of the most descriptive and amusing of them, and to present them here again, with some necessary enlargements and corrections, and in a somewhat more finished state than the rapid demands of a daily paper allowed. In their present form, therefore, they assume the more permanent character which they have been thought to deserve; the convenience of the reader is consulted, and his imagination very effectively aided, by the Designs of Mr. George Cruikshank, whose rare comic pencil has been most successfully employed in illustrating them. The chief quality of these little narratives is certainly "_pour faire rire_" in common with all other books of facetiæ; but in some important respects they differ from books of that class, which for the most part consist of fancied and fictitious scenes and characters; and of humour concocted in the brain of the writer: for in the work now presented, the dramatis personæ are actual existences, and the scenes real occurrences; affording specimens of our national humour which is perhaps to be found genuine only among the uncultivated classes of society. In copying these, the author's chief aim has been to preserve the character and spirit of his originals. The reader is placed, without personal sacrifice, amidst the various and somewhat repulsive groups of a police office, and made acquainted with the states and conditions of human nature, with which, from the sympathy due to the more unfortunate part of the species, he should not be entirely ignorant; it is by such means alone that the prosperous and orderly portion of society can know what passes among the destitute and disorderly portion of it; that they can rightly appreciate the advantages they enjoy, and the value and importance of these particular institutions of their country. It has been objected to this publication, that it perpetuates the ridicule and disgrace to which individuals have, in an unlucky moment, exposed themselves: to obviate this, great care has been taken that names, which are here unimportant, should be either totally omitted, or so altered as to prevent the possibility of discovery; personal satire being in no degree the object of this work;--the persons concerned have then only to keep their own counsel, to be perfectly unexposed to having their wounds opened afresh by means of this inoffensive, and, it is hoped, diverting volume. CONTENTS. PAGE A COOL CONTRIVANCE 1 A COSTERMONGER'S QUERY 3 A TEA PARTY 3 PAT LANGHAM'S LOGIC 7 MANGLING AND MATRIMONY 9 BATTLE IN THE BOXES 13 A SPOILED QUADRILLE 17 OYSTER EATING 19 A WATCHMAN'S WALTZ 22 A LITTLE BIT OF A CAUTION 24 DUNNING EXTRAORDINARY 26 STREET ETIQUETTE 31 THE LOVES OF M'GILLIES AND JULIA COB 35 TIPSY JULIA 42 AN EVENING'S PLEASURE 42 A LAMPLIGHTER'S FUNERAL 47 LATE HOURS AND OYSTERS 49 SUPPING OUT 52 A GREAT MAN IN DISTRESS 57 MRS. WILLIAMS'S PETTICOAT 61 "INCHING IT BACKERT" 63 MR. HUMPHREY BRUMMEL AND TERENCE O'CONNOR 65 CUPID IN CHAMBERS 67 FLORENCE O'SHAUGHNESSY 69 CORINTHIANISM 73 A DEBT OF HONOUR 79 CHEAP DINING 82 THE GENTLEMAN AND HIS BOOTS 87 BEAUTY AND THE BROOMSTICK 92 THE COCKNEY AND THE CAPTAIN 96 JEMMY SULLIVAN 101 ONE OF THE FANCY 105 A SUNDAY'S RIDE 108 DISAPPOINTED LOVE 112 TOM CRIB AND THE COPPERSMITHS 115 SOLOMON AND DESDEMONA 118 A COACHMAN'S CONSCIENCE 121 DANCING DONAGHU 123 A MISS-ADVENTURE 126 THE WEDDING RING 129 FLAGELLATION _versus_ PHYSIC 133 TOM SAYERS 137 THE DUST WHOPPER AND THE WATERMAN 141 A GROWN GENTLEMAN 144 DRURY LANE MISSES 147 A SMALL TASTE OF JIMAKEY 149 A WHITE SERGEANT, OR PETTICOAT GOVERNMENT 153 THE COOK AND THE TAILOR 158 THE TWO AUTHORS 164 A BOLD STROKE FOR A SUPPER 167 CUPBOARD LOVE 171 LOVE IN CHANCERY 173 KITTY KAVANAGH 181 FRENCH AND ENGLISH MIXTURE 184 UNREQUITED LOVE 187 A DUN AT SUPPER TIME 191 THE CANTAB AND THE TURKS 195 JOHN BROWN 198 JOHN SAUNDERS ON HORSEBACK: A NARRATIVE 203 'PON MY HONOUR IT'S TRUE 209 BEER--NOT BODIES 212 MOLLY LOWE 216 A WEARY BENEDICT 224 THE GOLDSMITH AND THE TAILOR 227 THE RAPE OF THE WIG 230 A BRUMMYJUM OUTRIDER 232 PAT CRAWLEY'S MULE 235 THE TEMPLAR AND THE COOK 238 A HAGGLING CUSTOMER 243 STEALING EX-OFFICIO 245 A DISTRESSED FATHER 246 SORROWS OF THE SULLIVANS 253 "WHERE SHALL I SLEEP?" 258 BEEF VALOUR 261 JEMMY LENNAM AND THE JEW 266 WOLF _versus_ WELLDONE 268 MR. O'FLINN AND HIS FRIEND'S MISTRESS 273 JONAS TUNKS 277 MISS HANNAH MARIA JULIANA SHUM AND HER BEAU 282 ROEBUCK _versus_ CLANCEY 286 PIG WIT 288 AN IRISH TAILOR 294 BOX-LOBBY LOUNGERS 298 IRISH GALLANTRY 302 ILLUSTRATIONS DESIGNED BY GEORGE CRUIKSHANK. ENGRAVED BY PAGE FRONTISPIECE _G. Cruikshank_ A COOL CONTRIVANCE _J. Thompson_ 1 VIGNETTE TO DITTO _Ditto_ 2 MR. ROBERT M'GILLIES _H. White_ 38 VIGNETTE TO DITTO _R. Branston_ 41 SUPPING OUT _Ditto_ 52 DITTO _Ditto_ 53 BUNDLING UP _W. Hughes_ 55 CHEAP DINING _R. Branston_ 84 DITTO _J. Thompson_ 85 TOM CRIB AND THE COPPERSMITH _R. Branston_ 116 VIGNETTE TO DITTO _Ditto_ 117 PETTICOAT GOVERNMENT _W. Hughes_ 155 DITTO _Ditto_ 159 A DUN AT SUPPER TIME _R. Branston_ 193 MOLLY LOWE _J. Thompson_ 220 VIGNETTE TO DITTO _Ditto_ 224 DISTRESSED FATHER _R. Branston_ 247 DITTO _J. Thompson_ 249 JONAS TUNKS _W. Hughes_ 280 PIG WIT _J. Thompson_ 292 VIGNETTE TO DITTO _W. Hughes_ 294 [Illustration: A COOL CONTRIVANCE.] MORNINGS AT BOW STREET. A COOL CONTRIVANCE. One fine summer's morning, a short, dumpy, sunburnt, orange and purple-faced old man--topped with a clean white night-cap, was brought before the magistrate by an officer, who had just found him trudging through the Mall in St. James's Park, with his breeches on a stick over his shoulder, instead of in their natural and proper place. "This comical fad of his, please your worship," said the officer, "frightened the ladies out of their wits, and made such a hubbub among the young blackguards, that I thought it my duty to take him into custody; but he kicked and sprunted at such a rate, that it was as much as two or three of us could do to get his breeches on again." "Why do you walk without your breeches, my honest friend?" said the magistrate, in a tone of kind expostulation.[1] "Because I was so hot that I was determined not to be bothered with breeches any longer!" replied the queer old man--twinkling his little deep-set French-grey eyes, and sending forth a long-drawn sultry sigh. The magistrate asked him something of his history; to which he replied, that he was born at Great Marlow, in Buckinghamshire, where his father was a small farmer. "There was a rare lot of us young ones," said he, "running about the lanes, and paddling in the cool green ponds, like so many goslings. For myself, I was made a shoemaker of, by a gentleman who thought me too pretty for a plough-boy: and so I've been making shoes in London these last forty years; but latterly I'm always so hot and dry, that I can make no more shoes, not I, and I'll take to the fields again." His worship was of opinion that the poor fellow's wits were wandering, and ordered that he should be taken care of in Tothill-field's Bridewell, until his parish could be ascertained. [Illustration] A COSTERMONGER'S QUERY. A person, who called himself a "master costermonger," having, with some difficulty, obtained access to the table, made his best bow to the magistrate, and said, "Please your _vurship_, vaut am I to do about my _bitch_?" "About _what_?" said his worship. "About my bitch, vaut I lost four months ago, your vurship. I lost her in pup, and I knows the man vaut's fun her, and now she's pupp'd six pups, and says he to me, says he, 'You shall either have the bitch vithout the pups, or the pups vithout the bitch; an if so be as you don't like that, you shan't have neither of 'em'--and so vaut am I to do, your vurship?" "Why go along and mind your business," replied his worship--and the master costermonger retired from court without having taken anything by his motion. A TEA PARTY. Joseph Arnold, Esq., of Duck-lane, Westminster, a retired hackney-coachman, better known by the title of "the Rough Diamond," and as the intimate friend of Bill Gibbons, Esq. P.C. Com. Gen. was brought before the sitting magistrate under the following awkward circumstances:-- Mr. Peter Guy, who is a tailor[2] (by _trade_), and Mrs. Peter Guy, were invited to tea by the accomplished hostess of the Russian Hotel in Bow-street. Mr. Joseph Arnold, Mr. Joseph Arnold's housekeeper, and several other ladies and gentlemen, were of the party. There was toast and prime Dorset, and muffins and crumpets, with Gunpowder and Bohea for the ladies; and pig's-face, red-herrings, and hot coffee for the gentlemen; in short, there was everything quite genteel and comfortable. Now it so happened that Mr. Peter Guy wore a white-poodle[3] upper benjamin, of his own make, on the occasion, and this unfortunate dress upset the comfort of the whole party. Mr. Joseph Arnold first observed, that Mr. Peter Guy's poodle-benjamin was as pretty a bit of toggery[4] as ever he _seed_. All the company agreed to this, except one lady (Mrs. Jonathan Guy), who remarked that it looked rather too warm-like and smothery for fireside wear. Mr. Joseph Arnold observed it warn't a morsel too warm for those as had any gumption[5] in 'em; and he offered to bet a shilling that he could get it on, if so be as Mr. Peter Guy would be kind enough to peel.[6] There was not a lady in company who did not laugh out-right at this proposition, because Mr. Joseph Arnold is a large round man, upwards of six feet high, and Mr. Peter Guy, as one of the ladies very justly observed, is a little hop-o'-my-thumb chap, not much above half as big. Mr. J. Arnold, however, swore by _goles_ (a favourite oath of his) that he would not flinch from his bet; and at length Mr. Peter Guy took him at his word, the stakes were deposited, and Mr. Peter Guy having slipped out of his benjamin, Mr. Joseph Arnold squeezed himself into it, without a vast deal of trouble; though, when it was on, the sleeves did not reach much below his elbows. Mr. Peter Guy readily admitted that he was done,[7] and requested his benjamin again; but Mr. Joseph Arnold refused to restore it, observing, that it was a prime fit, and he would give it a turn among the swells in Duck-lane. The ladies remonstrated, the gentlemen laughed, the noise ran high; the tea tables were hurried away, and the crumpets were upset among the ashes. But it was all of no use; Mr. Joseph Arnold swore the toggery was too good for a _tailor_, and he would keep it for himself; and so saying, he sallied forth and strutted up and down Bow-street for nearly two hours, till at length the patience of Mr. Peter Guy became exhausted, and he gave him in charge to an officer, who carried him before the magistrate. His worship having first ordered Mr. Joseph Arnold to be placed at the bar, asked him what he had to say for himself? He replied that he did not feel himself a bit disgraced by being placed in that 'ere bar, being as how he was well known to Mr. White and Mr. Markland, the magistrates at Queen-square, and to all the inhabitants of Duck-lane, as an honest man, and one that was as well-to-do in the world, as any man who was no better off than himself. And as to the benjamin there was such a bother about, he had got it on by the free consent of the owner, and he would keep it on long enough, unless the owner stood a drop of summut short.[8] "If that's the case, Sir," observed the magistrate, "I shall instantly commit you for the robbery." This seemed to have a considerable effect upon Mr. Joseph Arnold, for he instantly, though slowly, began to peel: and having so done, he handed the benjamin over the bar, sulkily observing, "This comes of keeping company with _tailors_, your worship, and I can't say but it sarves me right. Howsomever, he mought have had it before, if he had not been so d----d tall and consequential about it." Mr. Peter Guy thanked the magistrate for his kind interposition, and the parties withdrew. PAT LANGHAM'S LOGIC. Mr. Patrick Langham was charged with having assaulted Mrs. Bridget Finnagen, by _spitting_ in her face. His worship told him he was a dirty fellow, and asked him what he could say in excuse for such an unmanly and disgusting trick. "Well, your honour," replied Patrick, "I should not have done it by no _manes_, but she put her nose in the mouth of me." "Nonsense, man! How could she put her nose in your mouth?" "Well, your honour, she did that same, any how; an I can bring a witness to the fore that'll testify to your honour." The magistrate told him he did not believe him. Mrs. Bridget Finnagen said it was a _grate_ lie invented by Patrick to bring shame upon her--the mother-in-law to the brother of him, and _oun_ mother to four children--barrin one that's dead. Patrick persisted in his nose story, and being desired to show the manner of it, he placed himself in the attitude of a scolding woman--with chin poked out, and arms a-kimbo. "Why, you foolish fellow," observed the magistrate, "you mean that she put her nose in your _face_--not mouth." "Your honour'll call it what ye plase," replied Patrick, "but me _mouth's_ in me _face_ any how; and so me _face_ and me _mouth's_ all one, your honour, in that shape." His worship could not but smile at this explanation of the matter, and told Mrs. Bridget Finnagen that he thought Patrick was a harmless fellow, who would conduct himself better in future if she would forgive him his past offences. Mrs. Bridget Finnagen, however, refused to be pacified; she implored his worship "to bind him down to the law," and declared that upon one occasion lately, he told her if it was not for the law, he would put all the teeth in her head into her stomach; but as Patrick declared he had no ill-blood to the _cratur_, and promised never to molest her again, the magistrate dismissed the complaint. MANGLING AND MATRIMONY. Mr. Thomas Turner was brought before the magistrate on a peace warrant, issued at the suit of his wife, Mrs. Eleanor Turner. There was a world of arguments _pro._ and _con._; but we must content ourselves with a simple narrative of the principal facts. Mr. and Mrs. Turner were married in September last, at which time he was not much more than seventy-three years old; and she was only fifty-six, the very day they went to church; consequently their experience was not so great as it might have been, had they been older. Nevertheless, they managed to get over the first six weeks, as Mr. Turner said, "pretty tightish." But after that time, his business began to fall off; and then Mrs. Turner, who was by profession a _mangler_, insisted on his turning the wheel of her mangle for her. Well, he did turn it; and turn it, and turn it, again and again, from six o'clock in the morning till nine at night; and if he did not turn it fast enough, Mrs. Turner boxed his ears; and often, when she had boxed his ears till fire flashed from his eyes, as it were, she would tell him, "though he was a turner by name, he was a poor turner by nature." On the other hand, Mrs. Turner alleged that he had "married her out of a kitchen, _what_ she had lived in eleven long years;" that she had brought him as excellent a character as any man could desire; that she thought she could have done as well with him as she could with a man of twenty or twenty-five years old, but that she was sadly disappointed: for though she found him good for nothing in the world but to turn her mangle, he refused even to do that; or, if he did do it, he did it clumsily, and with grumbling; and he often left off doing it to beat her. Moreover, he had latterly threatened to sell her mangling apparatus; and, because she begged of him not to sell it--as his doing so would be their ruin--he "kicked her _shins_ till they were all manner of colours." The magistrate asked Mr. Turner what he had to say to this last part of the business. He said, with his worship's permission, he would tell him.--"He had often promised Mrs. Turner, that he would make her a handsome present at Whitsuntide, if she would only keep her fingers to herself; and as Whitsuntide was now fast approaching, he went out one Monday evening and _spouted_[9] his watch, to raise funds for that purpose. With the funds so raised, he purchased a spick-and-span new straw bonnet, with ribbons all up a-top of it, quite beautiful to see--so beautiful, indeed, that the ribbons alone cost him a clear five shillings. And with this bonnet, so beautiful, he went home, rejoicing in his heart to think how pleased Mrs. Turner would be, and how happy they should live--for a _fortnight_ at the very least. But he was mistaken. When he got home, he uncovered the bonnet, and, placing it on his hand, he held it up before her, nothing doubting but that she would be delighted at the sight of it; and he had no sooner done this, than she snatched it from his hand, and threw it on the ground, trampled its beautiful ribbons under her angry feet; and, seizing him by the _scuff_ of his neck she bent him down towards the floor, whilst she pummelled him about the head and shoulders, till his very ears sung again. In this dilemma, he had nothing left for it but to kick backwards--_donkey_-fashion as he called it; and it was by the kicks so given in his own defence, that Mrs. Turner's legs were discoloured." When Mr. Turner came to this part of his description, in order to show his worship more particularly the manner of his kicking, he kicked out behind with all his might, and in so doing he kicked an officer on the leg with such violence, that the poor fellow was obliged to go limping to a seat, and sit rubbing his shin for half an hour after. Mrs. Turner strenuously denied having pummelled her husband in the way stated, or in any other way; and eventually he was ordered to find sureties to keep the peace towards her and all the king's subjects. BATTLE IN THE BOXES. Among the watch-house _detenus_ brought before the magistrates one morning, to answer for misdoings on the preceding night, there was a little, fat, round, well-dressed, comfortable-looking personage, named ----; but his name can be of no interest to the public, as the offence laid to his charge amounted only to an assault and battery, caused by the boiling over of his anger at a supposed invasion of his right and title to a particular seat in one of the boxes at the English opera--he having set his heart upon that identical seat from the very beginning of the evening. His opponent was a young gentleman named Dakins--a thin, genteel youth, solemn and sententious in delivery, far above his years, and backed by a host of friends. There was a world of oratory displayed on both sides; but we have no room to report it: all we can do is, to give a bare narrative of the facts. Young Mr. Dakins occupied a front seat in one of the boxes till the conclusion of the first piece. Then, having nothing else to do, he looked round the house. Suddenly he espied a party of his friends, male and female, in the very next box. They occupied the front seat and part of the second; and he, perceiving that there was a vacant space on the second seat, went and took possession of it forthwith, and was highly delighted at the luckiness of the circumstance. In a few minutes in comes the little round man--"Hallo!" says he, "you've got my seat, young man." "_Your_ seat, Sir?" said the young man, with some surprise. "Yes, _my_ seat, Sir," replied the round one. "Well, Sir," rejoined the young one, "you need not be so hot upon't--there is a very nice seat, which I have just left, in the front row of the adjoining box--will you have the goodness to take that, as I wish to remain here with my friends?" "No, Sir," replied the round one, very waspishly--"no, Sir, I shall not! This is my seat--I have _satten_ upon it all the evening, and I'll have no other; and let me tell you, Sir, that I think your conduct in taking it, Sir, very ungentlemanly, Sir!" The young man's friends now interfered, but in vain; and at length they told him to let the little fat man have his seat, and they would make room for him in the front row. So there they sat, enduring all the moist miseries of four in a row, till the end of the second piece; when the young man, turning round his head, perceived the little round man's seat empty again; and, after waiting a few minutes, and finding he did not return, he again took possession of it, to the great relief of the poor ladies in the front row. But he had scarcely seated himself when in pops the little round man again, and without saying more than "I see this is done on purpose to insult me!" he seized the young man by the collar of the coat behind, lifted him from the seat, and very dexterously slid himself into it. In an instant all was uproar:--"Turn him out!"--"Throw him over!"--The little fat man lost his balance, fell backwards, and in that position he let fly "_an immense volley of kicks_," which the young man received on his stomach. The ladies shrieked, the gentlemen tried to hold his legs down, the house cried "Shame!"--and at length, after kickings and cuffings, and pullings and haulings, quite distressing to detail, the little round man was delivered over to the peace officers, and conveyed to the watch-house, panting like a porpoise, and perspiring at every pore. Thus far is partly from the evidence for the prosecution. For the defence, it was contended that it was excessively ungentlemanly to deprive any gentleman of the seat such gentleman might have occupied at the commencement of the performance; and furthermore, that the little round man was so roughly handled, that it was absolutely necessary for him to _kick_ in his own defence; for, having once lost his perpendicular position, his _rotundity_ of form made it extremely probable that he would roll over the front of the boxes into the pit! Indeed it was asserted that his enemies endeavoured to bring about that shocking catastrophe, and that, had not a gentleman in the adjoining box held him back by the coat, they certainly would have accomplished it. The magistrate said there were faults on both sides. In the first place, the defendant should not have quitted his seat without saying to his neighbour that he intended to return; secondly, common courtesy ought to have induced the complainant to have relinquished it when demanded; and, thirdly, that the defendant should have demanded it civilly. Upon the whole, it was a very silly piece of business, and he would recommend them to retire, and make an end of it by mutual explanation, or apology. This pacific advice, however, was rejected by both parties, and so the little round man was held to bail. A SPOILED QUADRILLE. One _Solomon Dobbs_, an operative tailor, "all fudge and fooster," like a superannuated goose, was charged by a very spruce young gentleman with raising a false alarm against him, whereby he, the young gentleman, was in imminent danger of being treated as a pickpocket, or something of that sort. The young gentleman, whose name we understood to be Henry Augustus _Jinks_, was proceeding to his studies in _quadrilling_ at the dancing academy, in Pickett-place, Temple Bar, about nine o'clock in the evening; and being thinly clad, in silken hose, and all that, he was hurrying along to keep himself warm and in proper quadrilling condition. Whilst he was so hurrying along, with his head full of fiddles and new figures, he heard somebody behind him cry "Stop!" and looking back, he saw Mr. Solomon Dobbs waddling after him. Mr. Henry Augustus Jinks had no idea that the cry of such a queer-looking man could be addressed to him, and so he continued to run on; but Mr. Solomon Dobbs still waddled after him, exclaiming "Stop him! stop that thief!" &c. though in such a thick husky voice that nobody noticed him. Neither did Mr. Henry Augustus Jinks notice him, but ran on, and on, till he arrived at the assembly-room; and the first quadrille--which had been only waiting for him--was just about to be led off, when in waddled Mr. Solomon Dobbs, and seizes Mr. Henry Augustus Jinks by his quite clean, fresh-starched cravattery! to the great terror of the ladies, the indignation of the gentlemen, the silencing of the fiddlers, and total disarrangement of the quadrille! This was shocking enough in all conscience; but how was the terror and indignation increased when Mr. Solomon Dobbs, still holding the astonished Mr. Henry Augustus Jinks by his clean cravat, told him in plain terms that he was a _pickpocket_, and had robbed him of his watch! It was too much. The ladies squealed, the gentlemen stormed, the fiddlers bagged their _cremonas_, and Mr. Henry Augustus Jinks threatened an action of slander; but the master of the ceremonies, more judiciously, ran for a watchman, and Mr. Solomon Dobbs was carried off to the watch-house as a dangerous and evil-minded _disorderly_. The magistrate called upon Mr. Solomon Dobbs for an explanation of his strange conduct. "----And please your worship, I was not so sober as I might have been," solemnly replied Mr. Solomon Dobbs, with an owl-like twinkle of his gin-quenched eyes. "Had you any ground for the charge you made against this young gentleman?" asked the magistrates. "Your worship, I had not; and I really have no recollection of having done what is laid to my charge," replied Mr. Solomon Dobbs, in deep despondency. "Then, by your own confession you are a drunken fool," responded his worship. Mr. Solomon Dobbs bowed assent.--Mr. Henry Augustus Jinks said he was satisfied, and the matter was dismissed. OYSTER EATING. A law student was brought up from St. Clement's watch-house, to which place he had been consigned between eleven and twelve on the preceding night, at the suit of an ancient oyster-woman of that parish. The venerable fishmongeress deposed, that the Law Student was in the practice of occasionally taking oysters at her shop; and in general he conducted himself like a very nice sort of gentleman--so much so, that she had more pleasure in opening oysters for him than for any other gentleman of her acquaintance; but on this unfortunate night he came in very tipsy, and devoured so many oysters that she was quite alarmed at him. She opened, and opened, and opened, till her hands and arms ached ready to drop off, and still he kept craving for more; and he _would_ have them, in spite of her remonstrating that he would certainly burst himself. At last he took it in his head to go out to look at the weather, and she took that opportunity of locking him out; thinking he would be satisfied with what he had had, and would go quietly home; but instead of this, he commenced an assault and battery on her door, and before she could unlock it, he had not only forced it off the hinges, but had shivered one of the panels to pieces with his foot. She was now more alarmed than ever, and fearing he might even attempt to serve her as he had served the oysters, she "_skreeked_ for the watch," and he was taken to the round-house. The Law Student, who seemed to be still under the influence of the Tuscan grape, heard all this with a quiet, comfortable simper; and then, with a low lounging sort of bow to the lady, he said in a voice that seemed to make its way with difficulty through a mass of oysters, "Suppose, Mrs. Jinkins, I reinstate your door--you will be satisfied?" "Sir," interrupted the magistrate, "you must satisfy me, as well as Mrs. Jinkins; you have broken the public peace; let me know what you have to say to that?" "Your worship," replied the Law Student, with an oyster-oppressed sigh, "your worship, I have nothing to say, save and except that I was rather--" "_Drunk_, you mean to say," observed his worship. "Your worship, I am sorry to say, conjectures rightly," replied the Law Student, with another very graceful bow, and another sigh from the very bottom of his oyster-bed. "Then, Sir," rejoined the magistrate, "pay the woman for the damage you have done her door--pay one shilling for your discharge fee, and five shillings for being _drunk_; and then go about your business, and keep yourself _sober_ in future." The Law Student bowed again, and beckoned to a young man at the farther end of the office, who instantly stepped forward and paid the money; and then the Law Student, making two distinct bows--one to the magistrate, and the other to his oyster-woman, slided genteelly out of the office. A WATCHMAN'S WALTZ. Two young men--the one a deputy drover, and the other an operative boot-maker--were charged by a watchman with having "bother'd him on his _bate_," and refused to "go along off of it when he _tould_ 'em." He was asked to describe the nature of the _bother_; and he replied, that they came rambling up to him _intosticatedly_, and _ax'd_ him--"Charley, where am the _waits_?"[10] "I don't know," says I--"get along out of it; and don't be after axing about such nonsense," says I. "We won't," says they--"we'll wait for the _waits_ and have a dance, for we've nothing better to do--without we go and break open a house!" says they to me. "Fait," says I, "but ye'd better be off to the beds of ye, out of the _kould_," says I; "and with that they got _hould_ of me, and twirled me about and about for a bit of a _waultz_, as they called it. So then I twirled my rattle, and they twirled me, and more watchmen came twirling into it--that's the waltz: and we twirled and twirled, all in a bunch together, till at last we managed to twirl them into the door of the watch-house; and here they are, your honour, to answer for that same." The defendants were asked what they had to say for themselves, and the drover undertook to be spokesman:-- "Your worships, last night I lost two fat _ship_ (sheep), and I _goz_ me over the water to see for 'em, and couldn't find 'em, not nowhere, your worships. 'Dang the _ship_,' says I, '_vauts_ the use of _vaulking_ my legs off arter 'em, I'll get a drop o' summat vaum and comfortable; so I goz me into a public-house, and calls for a pint o' beer with the chill off; and the beer, and the wexing about the _ship_, made me desperate hungry; and so I _vaulks_ myself to a slap-bang shop, for half-a-pound of beef; and just as I'd got it up, to pop in the first bit, a woman, _vaut_ I nows nothin' on, comes behind me, and vips it off the fork.--'Hallo! missis,' says I, 'don't you come that 'ere agen.'"-- Here his narrative was broken off by the magistrate desiring him to come to the watchman's charge at once; and he cut short his story by showing his wrist, marked with five little wounds, all a-row; which wounds, he said, were inflicted by the teeth of the lady who wanted his beef, and that he "got _vell vhopp'd_ into the bargain by some of her chaps." Then the loss of his sheep, the bite of the lady, and "the _vhopping_ of the chaps," made him "desperate out of humour," and meeting with his old friend the boot-closer, they went and got tipsy together, and, in that state, they thought to have a bit of fun with the watchman; but he was "sich a sulky chap," that he shut them up for it. The magistrate told them to pay their fees, and go home, and mix a little wisdom with their merriment in future. A LITTLE BIT OF A CAUTION. Patrick Saul, a good-humoured looking Irishman, was charged with maliciously throwing a boy into a deep well, with intent to do him some grievous bodily harm. Robert Hemmet, the boy alluded to, was crossing a field at Walham-green, when he met the prisoner, who asked him to fetch him half-a-pint of porter, and, before he could reply, took him up in his arms, and threw him into a well, in which there was seven feet depth of water. Having thrown him in, he walked leisurely away, and had he not been fortunate enough at his first rising to catch hold of the curb of the well, he must certainly have been drowned. Honest Patrick said he had no intention of injuring the boy; and he denied that he walked away from the well after having thrown him into it. "I only wanted to give him a dip, your honour, by way of a _little bit of a caution_; _bekase_ he is always _tazing_ me about my country and my languages, _bekase_ I happens to be an Irishman, your honour; and, _plase_ your honour, I never meets him not at no time, which is every hour in the days of every week almost, but he comes after me with a 'Hurrah, Pat! which way does the bull run now?' saving your honour's presence; and I can't get any _pace_ for him at all, your honour." The lad denied having insulted him in any way; but the magistrate did not seem to give much credit to this denial. He, however, asked the prisoner how he could think of adopting such a strangely violent mode of punishing the boy, as throwing him into the water. "Why, _plase_ your honour, I larned a little bit of the law in my own country," replied honest Patrick, "and I understand thereby that I'd no right to take the law into my own hands, by _bating_ him with a stick, so I dipp'd him in the water instead." The magistrate laughed at this curious distinction in Patrick Saul's Irish law; and, after some further investigation, he was ordered to find bail for the _assault_ only. The magistrate observed this was a very serious charge, and told the prisoner he ought to be very thankful he was not standing at that bar on a charge of murder. DUNNING EXTRAORDINARY. Mr. Thomas Kingston, a military officer on the half-pay list, appeared in custody to answer the complaint of Mrs. Bridget Bull. Mrs. Bridget Bull was an old lady of respectable appearance, very gentle in manners, and rather infirm. She deposed that the defendant, Mr. Kingston, was indebted to her husband the sum of four pounds six shillings and ninepence halfpenny, for goods sold and delivered; which debt he neglected to discharge, and thereby caused her husband and herself much trouble and inconvenience. That on Wednesday last, she, by desire of her husband, waited upon defendant with an earnest request that he would settle the account forthwith. Defendant said it was not convenient for him so to do, and she therefore took upon herself to remonstrate with him on the impossibility of their waiting any longer; whereupon he pushed her out of his room with such violence, that she fell down and bruised her arms and back shockingly.--In proof of the violence, she exhibited her arms to the magistrate, and doubtless they were bruised shockingly enough. Mr. Kingston, "a goodly portly man, of a cheerful look, a pleasing eye, and a most noble carriage--and, as we think, his age some fifty--or, by'r Lady, inclining to three-score," entered upon his defence with an impassioned eloquence that would have done credit even to a Phillips. He spoke of the nature of his income making it impossible for him to pay but at stated periods; and of the remorseless rapacity of tradesmen. He disclaimed all intention of hurting Mrs. Bull, expressed his pity for her bruises, and contended that what he had done he did in his own personal defence. After having expatiated on all these matters for some time, he, at the earnest request of the magistrate, descended to a particular answer to the charge at issue. In the first place, he said Mr. Bull came, in the morning, urging payment in no very gentle terms. He promised him payment as soon as he should receive money, and with that promise he departed apparently satisfied. In less than an hour, however, just as he had dressed, and was leaving home in search of money, Mrs. Bull, with bill in hand, presented herself before the door of the house, and positively forbade his egress. He requested her to get out of his way, and let him pass about his lawful business; but the more he requested, the more she refused. She declared she would never lose sight of him till he paid her the money, and she dared him to send for a constable to remove her. Then he told her he should retire to his own private apartment: and he warned her of the impropriety and unconstitutionality of following him thither, as he should consider it as his "castle," agreeably to the good old English adage, for such cases made and provided. She vowed she would follow him whithersoever he went, let the consequences be what they might. Nevertheless, he did not believe she would dare to put this threat in execution, and therefore he commenced a retreat towards his own private apartment; and, to his great astonishment, she followed him step by step, continually vociferating--"Pay me my bill! Pay me my bill!" Having reached the first landing of the stairs, he attempted a parley, in the hope of convincing her of the impossibility of his paying, without money to pay with; but to all he said, she only answered--"Pay me my bill!" He retreated farther up the stairs, remonstrating as he went, and she still following with the hateful cry of "Pay me my bill!" even into the sacred retreat of his own private apartment. What was to be done? Money he had none, at that moment--he was not ashamed to confess it. He called a council of war in his own mind, determined upon a system of operation, and quietly, but firmly, addressing Mrs. Bull, he said, "Mrs. Bull--you come here to seek money; I have none to give you--This room is my castle, and if you do not depart _instanter_, I shall be under the unpleasant necessity of compelling you." Having so said he advanced towards her, for the purpose of gently ejecting her from the apartment, but she was too quick for him; she eluded his grasp, and seizing him by the _under-lip_, led him by it in triumph round the room! What could be more annoying than this? To be led about by a violent old woman, holding by his stretched-out and bleeding under-lip! The magistrate admitted that it was a very awkward situation. Mr. Kingston continued.--Under the circumstances, he called out, as well as he could, for help; she cried out also--but it was the old inveterate cry of "Pay me my bill!" At this moment a noise of people approaching was heard, and she relinquished her hold upon his lip. He went to the door, and saw it was Mr. Bull, and a whole posse of his servants and neighbours, coming to the assistance of the lady; and seeing this, he resolutely seized her by the shoulders, put her out of the room, and locked the door before the great body of the enemy could reach it. This was the whole head and front of his offending. If the lady fell and hurt herself in consequence of his ejecting her, he was sorry for it; but she had brought it upon herself by her own misconduct. Finally, he submitted to the magistrate that he was justified in what he had done, inasmuch as the lady was a trespasser on his premises, and he had taken the only means in his power of removing the _nuisance_. The magistrate held that the means he had used were improper. If, when she insisted upon remaining in his house, he had sent for a constable to remove her, he would have done right. On the contrary, he had taken the law into his own hands, and must therefore find bail to answer the assault at the Quarter Sessions. STREET ETIQUETTE. This was a proceeding by warrant upon a matter of assault and battery, alleged to have been perpetrated upon the person of a very nice young attorney, Mr. William Henry Squibb, by John Bloomer, a youthful and golden-haired grower of cauliflowers and capsicums, in a pleasant village on the banks of the Thames. Mr. William Henry Squibb deposed, that on the 22nd of March, between the hours of eight and nine o'clock in the evening, he, the said William Henry, was passing through Leicester-square, in the parish of St. Anne, Soho, and in the county of Middlesex, in perfect good-humour with all men. That as he (the said William Henry) was so walking, in manner aforesaid, and having a new brown silk umbrella on his shoulder, firelockwise, he was aware of the defendant John Bloomer coming, in an opposite direction, in company with two feminine persons, commonly called, "ladies of easy virtue" by the polite--"blowens" by the vulgar--and "courtesans" by the classically fastidious--he, the said John, having one of the said courtesans on either arm, and thereby monopolising at least two-thirds of the pavement. That he, the said William Henry, without having any or the slightest intention of offending the said John, regarded the aforesaid ladies of easy virtue with a _kind of smile_; whereupon the said John, being of irascible and pugnacious temperament, did then and there tell the said William Henry that he resembled an _index post_, with his umbrella over his shoulder, and that if he did not get out of his way, he would twist him up into a figure of 8! That the said William Henry, though he had no objection to be denominated an _index_, simply, yet he could not bear to have the appellation _post_ applied to him; especially when coupled with the threat of distorting his person so shockingly as to produce the figure of 8; and considering the aforesaid appellation and threat as calculated and intended to excite a breach of the peace, he did forthwith lay hands on the coat collar of the said John and call loudly for the watch, in order that the said John might be conveyed to durance as a daringly dangerously disorderly sort of personage; but that the said John, without waiting the arrival of the watchmen, did instantaneously let fly a right-handed, point-blank belly-go-fister into the bread-basket[11] of the said William Henry--thereby depriving him of his wind, and convincing him that he had formed a right opinion of the dangerous qualities of the said John. This was the substance of the evidence; and it farther appeared, by the conversations which ensued, that Mr. William Henry Squibb not only lost his _wind_, but his umbrella also, by the violence of the stomachic concussion above mentioned; but that nevertheless a parley ensued, which ended in Mr. John Bloomer going voluntarily to the watch-house; there, the night constable refusing to interfere, cards of address were interchanged; that, on the following morning, and for several days thereafter, sundry Chalk Farm-_ish_ messages passed and repassed between the parties: that their gunpowder propensities, however, gradually and mutually evaporated; and, in conclusion, Mr. William Henry Squibb "determined to apply to the laws of his country, for redress." Mr. John Bloomer began his defence by informing the magistrate, that it was an understood thing--a sort of _street etiquette_ observed by all well-bred people--that when one gentleman happened to be in company with ladies of a certain description, no other gentleman should at all interfere in the business; either by "casting tender regards" upon the said ladies, or otherwise. This general understanding the complainant had grossly violated, by looking very significantly towards the whole party; and he, therefore, very properly, as he thought, applied the term "_index-post_" to him and his shouldered umbrella; but complainant took the term so to heart that he seized him by the collar, and then he certainly did strike him something in the manner he had described; and he would do so again under similar circumstances, let the consequences be what they might. He would not be insulted, he said, by any man, or attorney either. Mr. William Henry Squibb now drew forth a large bundle of letters (supposed to be the warlike epistles above-mentioned) and was preparing himself to go more fully into his case, when the magistrate desired him to reserve his _documents_ for the sessions, for he really had no more time to _waste_ upon the matter; and having so said, he ordered the defendant to find bail. In less than ten minutes, however, the parties again presented themselves before the bench, and said they had agreed to shake hands and say no more about it; upon which his worship observed, that he wished with all his heart they had thought of that mode of settling the matter an hour sooner. THE LOVES OF M'GILLIES AND JULIA COB. Mr. Robert M'Gillies was brought before the magistrates to answer the complaint of Miss Julia _Cob_. Mr. Robert M'Gillies was a tall, stout, portly, middle-aged, Scottish gentleman; and Miss Julia Cob, a diminutive Hibernian young lady, in a richly braided dark blue habit, smart riding hat, long black veil, and red morocco _ridicule_. Miss Julia Cob made a multitude of complaints, by which it appeared that whilst she was living, a gay and happy spinster, with her friends in Dublin, she was courted by Mr. Robert M'Gillies, whose card bore the initials "M. P." after his name: and she, conceiving that M. P. meant "Member of Parliament," lent a willing ear to his honied words. That she afterwards discovered his profession was the taking of likenesses, and that the M. P. meant _Miniature-Painter_. That notwithstanding the disappointment of this discovery, she continued her affections towards him, and eventually consented to come with him to England--not as his wife, but as his friend _pro tempore_; for she could not think of taking up with a miniature-painter for life. That they did come to England accordingly, and took up their rest in London; but from that period Mr. Robert M'Gillies became an altered man; he relinquished his M. P. profession, and lived entirely upon her means, spending almost his whole time in smoking and drinking, lying in bed with his clothes on, and amusing himself between whiles with tearing his and her garments in shreds and tatters. That at length her affection for him began to evaporate, and, being much impoverished by these vagaries of his, she determined "To whistle him off, and let him down the wind to prey on fortune," as Othello talked of doing by the gentle Desdemona. That in consequence of this determination she "got herself acquainted" with another lover--not a Scottish and sottish _soi-disant_ M. P., but a real, unadulterated, and genuine Irish Mem. Par.--one who had taken a house for her in Norfolk-street, Strand, furnished it fit for a princess to live in, and provided her with all things fitting for a lady in her situation. That Mr. Robert M'Gillies felt himself so dissatisfied at this new arrangement, that he forced his way into her new abode in Norfolk-street, turned her char-woman out of doors, broke her glasses, tore her clothes to ribbons, spat in her face seventeen times, and swore he loved her so that she should never live with any other _jontleman_ till she was _completely_ dead and done with.--Nay more--having done all this, he laid himself down on the best bed in the house, and, taking out his pipe, began smoking away as he used to do at home; though she told him her new lover "couldn't abide the smell of _baccah_." [Illustration: MR. ROBERT M'GILLIES.] Under these circumstances, Miss Julia Cob begged the magistrates to interpose the strong arm of the law between her and Mr. Robert M'Gillies. He was a strong, powerful man, she said, and she verily believed he would never let her go to her grave alive--a figure of speech which she afterwards explained to mean--that she verily believed be intended to do her some grievous bodily harm--or, in other words, he intended to prevent her going to her grave in the natural way. The officers who took Mr. Robert M'Gillies into custody, stated that they found him--though in the middle of the day--stretched out at full length in bed, with all his clothes on, except his coat, and smoking a long pipe; and on the chair by his bedside was a quantity of tobacco, and a large jorum of ale. Mr. Robert M'Gillies, who had been with difficulty restrained while these statements were making, now entered upon his defence in form and manner following:-- "She is a _villain_, and will swear anything!" (Thumping the table and bursting into tears.) "But I don't blame her, I blame her evil advisers." (Another thump and more tears.) "She has been heard as a woman, and now let me be heard as a man!" (A louder voice, a heavier thump, and a greater flood of tears.) "I was a bright man before I knew her!--Her name is not _Julia Cob_. She has deceived many a man under the name of '_Julia Cob_.' Her right name is Jane Spencer! and she knows it. I don't want to go near her, I tell you!" (A fresh supply of tears.) "I love her better than my own heart's blood; but I don't care--I won't be used in this manner--I'll be d----d if I will! Confound her and them altogether, I say! But I don't blame her--I blame the devils she has got about her. She said to me one day, says she, 'Come, M'Gillies,' says she, 'let you and I go down upon our bare knees and swear to be true to each other for ever and ever!' and now she uses me in this manner!--Oh! oh! oh!" (Lots of tears.) "What am I brought here for? What have I done? Answer me that!--Oh! oh! oh!" &c. Mr. Robert M'Gillies filled up the pauses in this speech, by licking in with his tongue the tears, &c. which flowed plentifully through the stubble on his upper lip; and having made an end of speaking-- The magistrate told him he was a very foolish man, and Miss Julia Cob was not a bit better than she should be; nevertheless she must not be subjected to personal violence, and he therefore must put in bail to keep the peace towards her--himself in 50_l._ and two sureties in 25_l._ each. It appeared, however, that his friends had previously been bound for him in a charge of assault upon the same lady, and the magistrate declaring their recognizances forfeited by this his subsequent violence, they declined coming forward again. So Mr. Robert M'Gillies was consigned to his own lamentations in the dreary dungeons of Tothill-fields' Bridewell, and the false-hearted _Julia Cob_ returned to her new lover in Norfolk-street. [Illustration] TIPSY JULIA. Miss Julia Johnson was charged by a watchman with infesting his _bate_ in a state of _bastely_ drunkenness. "It was King-street, your honour, that same I'm now spaking about," thundered Phelim O'Donaghue, "and she _wouldn't_ come out of it anyhow, _becase_ the beer had got the best of her, an' she _couldn't_, your honour; an' so I gathered her up, with her silks an' satins, an' put 'em altogether in the watch-house, your honour." "Did she _abuse_ you?" asked his worship. "Fait, an' she hadn't _sense_ enough for that, your honour!" replied the strong-lunged Phelim. Miss Julia's "silks and satins" gave manifest proof that she had not been able to keep her feet; and, as she had nothing but tears to offer in her defence, she was adjudged to be drunken and disorderly, and ordered to find sureties for her better behaviour in future. AN EVENING'S PLEASURE. A schoolmaster of Greenwich, an apothecary of Plymouth, and a London sheriff's-officer,--"three good fellows and true," were brought before the bench, charged with having "shown off" a little too much in the pit of the Olympic Theatre. Their situation in the office, when the magistrate took his seat on the bench, was thus:--The sheriff's-officer dead drunk on the floor of the outer passage; the apothecary dead drunk on the benches within the office; and the schoolmaster very drunk, but very sprightly withal, upon his legs before the magisterial table. Then as to their personal condition:--the sheriff's-officer had only half a coat--the entire sinister side having been torn away vertically; and he was moreover so grievously bedaubed with blood about the face, that his features were indistinguishable. The apothecary had his garments entire, but the exterior case of his olfactory apparatus was marvellously swollen and distorted--more like the budding proboscis of an infant elephant, than the nose of a Christian compounder of medicine. The schoolmaster's countenance was like that of his friend, the sheriff's-officer, excessively bloody; and his left eye was closed by a large blue and green tumour--from an orifice in the centre of which the _claret_ flowed continually towards the corner of his mouth, as if in mockery of the bumpers that had brought him before the bench. As to their achievements, it appeared by the evidence of sundry theatrical prompters, scene-shifters, firemen, constables, and deputy-constables, that they entered the theatre arm in arm, with each a flaming cigar in his mouth. That they had no sooner got within the pit than they began to shout lustily for the music. That the music not answering to their shouts the schoolmaster rushed gallantly forward over the heads of the more un-Corinthian part of the audience--to the infinite detriment of sundry Leghorn and other bonnets--and clearing the barrier of the orchestra, at one audacious leap he dashed into the regions beneath the stage in search of the musicians. That he was thence expelled by the united efforts of supernumeraries attached to the concern; and that, as the said supernumeraries of the concern attempted to get him back over the barrier of the orchestra, the sheriff's-officer and the apothecary scrambled forward to his assistance, and prevented his being so put back with all their might. That a general fight ensued--that many people left the theatre in dismay--that others who were entering refused to complete their _entrée_--that at length the riotous _trio_ were got over by dint of numbers--that they were carried to this office--and that the manager was positively determined to prosecute! To all this the schoolmaster was the only one of the three who could say anything in reply; but then he was a host in himself. He, as in duty bound by the nature of his calling, was the "_Logic_" of the "_spree_;" but unfortunately his logical powers were mystified with old port and beating, and he could make little or nothing of it. He began his defence with three distinct emissions of the fumes of the old Port above-mentioned, and then told the magistrate how they were all three Devonshire men, and old friends, who had met for an evening's pleasure, after a long and tedious separation--how the apothecary had never been in London in all his life before, and had been let into a secret by that night's adventure--how he himself had taken his tea before he set out from Greenwich to meet the apothecary--how the apothecary dined, and how he did not--how they met with the sheriff's-officer--how they got drunk at the Shades at London Bridge, at the expense of the apothecary--how they got more drunk in Fleet-street, at the expense of himself (the schoolmaster)--and how they got drunk in the superlative degree, "somewhere hereabouts"--how somebody gave them orders for the Olympic--how they went there, and found the pit as silent as the grave--how they called for music, and no music came--how the schoolmaster dashed into the _cellar_ in search of the _fiddlers_, but couldn't find any--how the folks felt themselves offended at his interference--how a devil of a row ensued--how he might have escaped, but scorned to do so--how they were finally captured--and how they were vastly sorry for all of it. Lots of conversation ensued upon these premises, and the manager, after two or three private conferences, declared himself satisfied, but the magistrate said he was not. "If poor men," said his worship, "were brought before me, charged with such mischievous absurdities, they would be inevitably sent to prison, unless they could find bail; and I will not suffer others to escape, because they may have certain means of satisfying those they injure." So the schoolmaster and the sheriff's-officer were held to bail for their appearance at the sessions; and the apothecary was suffered to return to his disconsolate family _unscathed_, because he had not been quite so obstreperous as his companions. A LAMPLIGHTER'S FUNERAL. An elderly matron, one Mrs. Bridget Foggarty--the lady of an operative architect (_vulgo_ a bricklayer) was charged with having wantonly assaulted a patrol, whilst in the execution of his duty. It seems that a deceased lamplighter was interred, the evening before, in St. Pancras' burying ground, with much funeral pomp--there being more than two hundred of his brother _illuminati_ present, each bearing a flaming torch in celebration of his obsequies. This, it was said, is the universal mode of lighting a lamplighter to "that bourne from whence no traveller returns," and, of course, the spectacle attracted crowds of people. Wherever crowds of people are collected, there the patrol very properly repair, to prevent disorder: and the officer in question was there for that meritorious purpose, when Mrs. Bridget Foggarty abruptly gave him a slap on the cheek with her own right hand--that hand being all begrimed with tar, in consequence of her having held one of the half-melted funeral torches while the bearer of it took a little of _Deady's_ consolatory[12] on his way back from the mournful ceremonies. This was the assault complained of; but the officer said he did not wish to be hard with Mrs. Foggarty; neither would he have taken her into custody, had not the surrounding multitude echoed the blow with such a shout of exultation as gave the lady a very evident intention of repeating it. Mrs. Bridget Foggarty, when asked by the magistrate what she had to say for herself, wept audibly, and assured his worship that she took the gentleman for a friend of her husband's, or she never should have taken such a liberty as that 'ere. She declared that it was not _tar_ upon her hand, but _soot_--plain, ordinary soot, "off of a chimney-sweeper;" and, if his worship pleased, she would tell him all about it. His worship did not object, and she proceeded to state that she had been to see her husband, then lying ill in the hospital; that on her return, she went to see the lamplighter's burying, and that the folks were all very merry, "and quite _larkish_ in a manner;" that being curious to see what sort of a coffin it was, she _skrouged_ herself through the mob till she reached the brink of the grave, and she had no sooner done so, than the mob pushed a chimney-sweeper into it, and pushed her atop of him; and that was the way her hands were blacked. The magistrate told her he thought her visit to her sick husband should have disposed her more seriously, than to be mingling in such a disgraceful scene; and desired her to go home, and conduct herself more decently in future. Mrs. Foggarty was very thankful for the lenity shown to her, and departed courtesying and drying her eyes. LATE HOURS AND OYSTERS. Two gentlemen of pretty considerable respectability--one tall, and the other short--were charged with having assaulted the watch; and no fewer than five "ancient and quiet watchmen" appeared, to testify against them. Dennis Mack was the first in order. He said he found the two gentlemen at the door of the oyster shop in New-street, Covent-garden, between one and two o'clock in the morning, kicking up a great row with a hackney-coach and two ladies. He told them to go home to bed, and not be making such a bother as all that, when the short one laid hold of his staff, and tried to twist it out of his hand, whereupon he sprung his rattle for assistance, &c. Thomas Robinson was the next. He was a smart, upright, _Corporal Trim_-like sort of a watchman, and his discourse was somewhat "stuffed with epithets of war." He heard the _rattle-call_ of his _comrade_, and _advanced_ to his _relief_--he made his _approaches_ with caution in order to _reconnoitre_ the party--having so done, he challenged the offenders to _surrender_, and received the point-blank charge of a fist in his belly--saving his worship's presence. "What are you?" asked the magistrate, struck by the novelty of his phraseology. "I have been a soldier, your honour," he replied; "but since I was discharged from the army, I have endeavoured to fulfil the part of a cobbler." Patrick Donaghue, a six-foot Emerald Islander, with an astonishing perpendicular expansion of countenance, was the third in order. He heard the _hubbuboo_ as he was _paceably_ walking his _bate_, and went, right on end, to _larn_ the rights of it; and the biggest of the two--without saying "by yer _lave_,"--took him a mighty _dacent_ stroke over the _jaws_. Two other watchmen followed; but, as they said, they only came in at the tail of the _row_, and therefore they did not see the beginning of it. However, they bore testimony to the extreme repugnance of the gentlemen to go to the watch-house. The gentlemen were now called upon for their defence, and the short one undertook the task of making it. It appeared that he and his tall friend were out so late _because_ they were eating _oysters_, consequently the oysters were solely to blame, as far as late hours were concerned. Then, as they were coming out of the oyster-shop, they found two _ladies_, who also had been up stairs eating oysters, sitting in a hackney coach at the door. There was nothing extraordinary in this; but somehow or other the coachman had got it into his head that these two unlucky gentlemen had ordered the coach for the use of the ladies, then comfortably sitting therein, and of course he looked to them for the fare. The _ladies_ themselves encouraged the coachman in this "iniquitous idea," and seemed to enjoy it very much; but our oyster-eaters were not to be had in this way. They _re_-sisted the "abominable demand," the coachman _per_-sisted, the ladies laughed, the watch came up, and the oyster eaters were hauled off to durance, most unjustly. As to the blow on the belly, the _dacent_ stroke on the jaws, &c., they denied all that sort of thing _in toto_. They were nevertheless held to bail for their appearance at the sessions; and, doubtless, should they ever be taken with an oyster fit again, they will try to get it over earlier. SUPPING OUT. Messrs. Theodore Planque (a very tall gentleman), Hugh Jackson (a very short one), and Robert Thomas Huff (neither tall nor short, but, as it were, between both), and a _bamboo cane_, almost as long and large as a little scaffold-pole, were brought before the magistrates from the subterraneous saloons of St. Martin's watch-house, charged with dreadful doings among the _Charleys_.[13] [Illustration] [Illustration] It appeared by the statements _pro_ and _con._, that the prisoners are very respectable people, and that on Friday night they went to sup with an unquestionably highly respectable tradesman in Long-acre. This supper was given on the occasion of his brother, who is a captain in the navy, having returned from a long and perilous voyage; and, of course, on such an extraordinary occasion, they drank deeper than ordinary. It is really surprising what a quantity of thirsty sentiments an occasion of this kind gives rise to. At last the tall gentleman--or, as one of the watchmen called him, "the _long_ one"--was found stretched out at his length on the pavement before the door, completely done up. It was a _charley_ who found him, and a very honest charley too, as times go; but whilst he was endeavouring to gather him up, the short gentleman came behind and floored poor charley himself, with the great _bamboo_, above mentioned. He was soon up again, however--though, as he said, he never was floored by such a queer thing in his life before, nor half so _clanely_. Once on his legs again, round went his rattle, and in half-a-dozen seconds up came half-a-dozen of his brethren. The short gentleman with his bamboo, seeing this, laid about him lustily--ribs, canisters,[14] or lanterns, it was all one to him. But "who can control his fate?" or what can one single arm do against a dozen? He was _bundled_ up, or enveloped as it were, in a _posse_ of _charleys_, all in full _tog_, enough to smother up a Hercules; and after some little ineffectual sprunting, he, and "the long one," and the "middle-sized one," and the great bamboo, were all safely lodged in the watch-house; where the long one, having shaken off his drunken slumbers, committed divers outrageous assaults upon the night constable and his men, as they were putting them down into the cellars. In their defence before the magistrate, they admitted the drunkenness, but denied the violence; and begged his worship to believe that it was "entirely a case of _simple intoxication_." [Illustration: BUNDLING UP.] The magistrate ordered the long one to find bail upon four distinct assaults; the short one to find bail upon two distinct assaults; and the middle-sized one was discharged on payment of his fees. A GREAT MAN IN DISTRESS. A personage, who described himself as "General Sarsfield Lucan, Viscount Kilmallock in Ireland, a peer of France, and a descendant of Charlemagne," presented himself before the magistrates to solicit a few shillings to enable him to proceed on important business to Wexford. General Sarsfield Lucan wore an old brown surtout, with the collar turned up behind to keep his neck warm, and a scrap of dirty white ribbon fastened to one of the button-holes; a black velvet waistcoat, powdered with tarnished silver _fleurs-de-lis_, and an ancient well-worn _chapeau bras_, surmounted with a fringe of black feathers. He carried under his arm a large roll of writings, and all his pockets were stuffed with tin cases, pocket-books, and bundles of papers: his "fell of hair" was ruefully matted; an enormous tawny whisker covered either cheek and his upper lip and chin,--which, for want of shaving, "showed like a stubble-field at harvest home,"--was all begrimed with real Scotch. He said he was a native of Wexford in Ireland, and had spent the last seven years in Paris, where his cousin, Louis XVIII., nominated him a peer, and gave him a decoration (the bit of white ribbon above mentioned); but his instalment had been postponed by the then recent change in the ministry; his cousin (Louis XVIII.) assuring him, that as soon as his present ministers were kicked out, he should come in. In the meantime his father had died, and willed him certain lands and houses in Wexford; whereupon he wrote to his sisters, who were resident there, to desire them to send him the proceeds of his estates forthwith; but instead of so doing, they had themselves administered to the will, and were dissipating his patrimony. Under these circumstances, his cousin, the king, advised him to set out immediately for Ireland, and seek redress in person. "Journeying with this intent," he landed at Dover a few days before, but on reaching London he found his finances exhausted, and he was now driven to the unpleasant necessity of applying to their worships for a few shillings, to enable him to proceed. Sir R. Birnie said, he wondered his royal cousin had not furnished him with the means of prosecuting his journey. "Sir! I scorned to trouble him at all on such a _palthry_ subject as money," replied the general, with some warmth; and he then went on to state, that in order to satisfy his coach-hire from Dover to London, he had been necessitated to give up possession of his working tools. "Your _working tools_!" said the magistrate; "and pray may I ask what trade your lordship follows?" "No trade in the world at all," replied the general; "I am not the person to be after following trades.--The tools I am _spaking_ about are what I used in some of the greatest inventions the world ever saw. I invented a _happaratus_ for extracting stone and gravel from the _blather_, without any operation at all. I invented a machine for fishing up vessels foundered at sea, as _aisy_ as fishing up an oyster; and I invented another machine for making _accouchement_ the most _aisy_ thing in existence--a mere _fla-bite_ to the most tender lady imaginable! And it was partly these inventions, indeed, that brought me to this country now--because I did not choose to be giving foreigners the benefit of them." "Pray, Sir," said Mr. Minshull, "will you give me leave to ask whether you were ever confined?" The General--"_Confined!_ for what would I be confined?" Mr. Minshull--"If you do not understand the nature of my question, I am sorry I put it; but it certainly appeared to me possible that----" The General--"Sir, you appear to me to be after _taalking_ in a very queer kind of a way to a _jontleman_! You ought to know what is due to a respectable and _graat_ man, even though he is in distress." Mr. Minshull--"Well, Sir, I will speak as plainly to you as you do to me. It is my opinion, and the opinion, I believe, of every person present, that you are out of your mind; and that if you have never been confined, it is high time you were so." The General angrily declared he was altogether _mens sana in corpore sano_; and professed himself astonished that any body should entertain a contrary opinion; then taking from his side-pocket a round tin case, nearly as large as a demi-culverin, he offered to produce from it documents to show that he was really the important personage he professed himself to be. The magistrates, however, had no faith in the matter; they told him it might be all very true, but they had no funds to assist him with; and, as he appeared very incredulous on this subject, they at length ordered him to withdraw upon pain of being committed to prison under the Vagrant Act. This was an awful alternative, which the gallant "General" did not think proper to risk; so gathering up his patents and papers, he put his feather-fringed _chapeau_ upon his head, and taking an ample pinch of snuff--so ample, indeed, that it rushed through his olfactory labyrinth with the noise of a mighty cataract--he stalked majestically out of the office, muttering anathemas as he went. MRS. WILLIAMS'S PETTICOAT. This was a proceeding under the Pawnbrokers' Act, by which Mrs. Priscilla Williams sought to recover a compensation in damages for the loss of certain property pledged with a Mr. Simmons. Mrs. Priscilla Williams is a bouncing buxom belle, of five-and-thirty or thereabouts, who, having occasion to raise the sum of eighteen-pence on some sudden emergency, was fain to carry her best black bombasine petticoat--or _bum-be-seen_ petticoat, as she called it--to Mr. Simmons, of Seven Dials, a diminutive elder, who gathereth profit unto himself daily, by lending to the poor: in common _parlance_, a pawnbroker; or, poetically speaking, "_My Uncle!_" This Mr. Simmons received the petticoat; held it up to the light; observed that "it might well be called a _bum-be-seen_ petticoat, for the moths had riddled[15] it sadly;" and finally, he lent the money required; but when she applied to redeem the petticoat, he told her it was lost, and refused to make her any compensation for it. Mr. Simmons, in his defence, admitted having received the petticoat, and also having lost it; but he declared Mrs. Priscilla Williams had deluged him with abominable abuse; and he humbly submitted that the said abuse ought to go as a set-off against the lost petticoat. Mrs. Priscilla Williams protested against any such settlement as that. She readily admitted having "blown Mr. Simmons up a bit," and she thought he richly deserved it; for he d----d her and her petticoat too, in the most _notoriousest_ way imaginable:--"I shouldn't have minded his d----g me," she added, "because it couldn't hurt me, but I thought it extremely _ongenteel_ in him to d----n my _petticoat_." The magistrate ordered that Mr. Simmons should pay the value of the petticoat, with full costs of suit. "INCHING IT BACKERT." Two apprentice boys in the service of a very respectable tradesman in Museum-street, together with a little _night-walker_ were charged by an Irish watchman with kicking up a great big row and clatter, at Charing-cross, at half-past twelve o'clock in the morning; and, what was still worse, with laughing _at_, and using bad words _to_ the said watchman, when he very civilly told them to "be off of his bate;" and "moreover and above, with _inching_ it _backert_ in the teeth of him." "And pray what is '_inching_ it _backert_?'" asked his worship. "Fait, your honour, an' this it is"--replied honest Mahoney, shuffling his feet backwards, inch by inch. His worship observed, that he had never heard the verb "_inching_" used before, and therefore he had asked for an explanation. "I suppose you conjugate it '_I inch--thou inchest--he inches_,' don't you, Mr. Mahoney?" "Your honour knows the rights of every thing," replied Mr. Mahoney; and the case proceeded. It appeared that the two lads had obtained leave of their master to go home for clean linen, and had taken that opportunity of taking a twelvepenny peep at the wonders of Astley's Amphitheatre; and that, in their return to their master's house, they were _picked_ up by the little _night-walker_; that she, being known to Mr. Mahoney as "a noisy customer," he told her to go off and leave the lads alone; whereupon she _trated_ Mr. Mahoney with some abuse, and the lads taking her part, they were all three carried to the watch-house. The worthy magistrate read them an excellent lesson on the impropriety of their conduct, and prevailed upon their master to forgive them. This done, they were discharged; and the lady was sent to Bridewell--she being well known as most depraved and disorderly. MR. HUMPHREY BRUMMEL AND TERENCE O'CONNOR. Mr. Humphrey Brummel, a tall, gaunt old gentleman, of pedagogue-ish exterior, with each particular hair standing on end, like quills upon the fretful porcupine, was charged by Mr. Terence O'Connor, a Covent-garden watchman, with having been _extramely_ disorderly under the _pehazies_ (piazzas) during the night. The magistrate inquired as to the nature of his disorderliness, and Mr. Terence O'Connor explained it to be--"_spaching_ to the lads, and _frullishing_ his stick about like a merry Andrew." It also appeared that he continued these eccentricities from midnight till four in the morning, "_clane_ contrary to all sorts of _dacency_;" and therefore Mr. Terence O'Connor lodged him in the watch-house. Mr. Humphrey Brummel in his defence said, he took shelter under the Piazza from the inclemency of the weather: and it was very possible that, whilst there, he might have endeavoured to cheer the loneliness of the hour by an audible repetition of some appropriate passages from the poets. But he was totally unconscious of offence, and he solemnly declared that instead of "_spaching_ to the lads," he stationed himself in a door-way far apart from every living soul; and had not Mr. Terence O'Connor been so over officious, he should have gone quietly to his bed, and his worship would not have been put to the pain of listening to such a frivolous charge. "An' please your worship," exclaimed Mr. Terence O'Connor, "he says he's got a _nact_ of _Parlyment_ in his pocket, what'll lay me by the heels, an' I hope your worship will make him _prove his words_!" "I will do my best," replied his worship, smiling, and at the same time asking Mr. Brummel what Act of Parliament he alluded to. "Lord love you, sir," replied the tall old man, "I never alluded to any Act of Parliament; but I did threaten to report him to your worship for sleeping on his post." "Is it true, O'Connor, that you really do sleep whilst on duty?" asked his worship. "_Ounly_ that time I got no sleep in the day," replied the night guardian, blushing as intensely as a fresh-washed Munster potato. "You are both fool and knave, Mr. O'Connor," observed his worship--"a _knave_ for sleeping when you are paid to keep awake, and a _fool_ for wantonly bringing this complaint against yourself." Mr. Humphrey Brummel was then discharged without a fee; and Mr. Terence O'Connor was dismissed with an assurance that his _watching_ should be _watched_ in future, and that he should be suspended if caught napping. CUPID IN CHAMBERS. A pretty little aquiline-faced, "gazelle-eyed" damsel, was brought in by one of the St. Clement Danes' constables, charged with creating a riot in the chambers of Mr. Snuggs, of Clement's Inn. Master Constable knew nothing of the alleged riot, save and except what Mr. Snuggs had told him; and so he was ordered to stand aside; but Mr. Snuggs himself told a long and lamentable story of the sufferings he had endured from the fair prisoner. He had originally engaged her as a servant to attend to the domestic department at his chambers; but she took advantage of his _partiality_ for her services, and made the chambers too hot to hold him, as it were;--she disturbed his studies by her loquacity; she lived intemperately; she set him at defiance; she got her relations to help her to persecute him; and, if he only attempted to remonstrate with her, she raised the whole neighbourhood about his ears! He concluded by expressing a hope that his worship would put a stop to her doings. The magistrate thought there must be something very strange in all this; for what man of any spirit would suffer the serenity of his chambers and his mind to be so disturbed by a little gipsy of an Abigail, "when he himself might his _quietus_ make with a bare _warning_." He therefore put a question, or two, to Mr. Snuggs, touching the "partiality" he had spoken of. Mr. Snuggs replied afar off--somewhat approaching to the obscure; but not so the fair troubler of his peace and his chambers. She gave his worship to understand, in good round terms, that she was the veritable _mamma_ of sundry _little Snuggses_; and that Mr. Snuggs was neither more nor less than a gay deceiver. She denied that she had ever "kicked up a row" in his chambers--she had merely told him of his faults and his failings; and she hoped his worship would not think of separating her from her children. The magistrate immediately dismissed the charge; the damsel smiled triumphantly; and Mr. Snuggs, like a tall elderly gentleman as he was, stalked out of the office, sighing--as who should say, "The Gods are just, and of our pleasant vices make instruments to scourge us!" FLORENCE O'SHAUGHNESSY. This was a proceeding wherein one Mrs. Florence O'Shaughnessy sought "_purtection behint_ the law _agen_ the thumpings of her _oun_ lawful husband," Mr. Phelim O'Shaughnessy, of the parish of St. Giles, labourer. Phelim O'Shaughnessy was a clean-made, curly-pated, good-tempered little fellow, in a new flannel jacket, white apron, and duck trousers. His wife, Florence, was about his own size, no whit behind him in cleanliness, very pretty, and she had a voice--plaintive as a turtledove's. "--An' plase your honour," said she, "this is Phelim O'Shaughnessy, the husband to myself, that was when he married me; and is--barring the _bating_ he gave me yesterday, just for nothing at all, your honour, that I knows of--_ounly_ that he listens to bad folks, the neighbours of us; and bad folks they are sure enough, your honour, for that same; and your honour'll be plased just to do me the kindness to make them _hould_ their _pace_ and not be after taking away the senses of my _oun_ husband from me, to make him look upon me like a stranger, your honour--for what would I be then?" Poor Florence would have gone on murmuring forth her little griefs in this manner by the hour together, if his worship would have listened to her. But the office was crowded with business, and he reminded her that the warrant she had sued for, charged her husband with having beat her; and she must confine herself to making good that charge, if she wished to have him punished for so doing. "Your honour," said Florence, with a low courtesy, "it isn't myself that would hurt a hair of the head of him; _ounly_ that your honour would hear the rights of it, and tell Phelim he shouldn't be after _bating_ me for the likes of them. And here he is to the fore, your honour, for that same." The magistrate found it would be vain to think of hearing "the rights of it" from Florence; and therefore he asked Phelim what he had to say to it. Now Phelim was a man of few words. He had listened calmly to all Florence had been saying, and it was not till the magistrate had twice put the question to him, that he left off smoothing his dusty hat, and then, looking steadfastly in his worship's face, he replied, "Och! it's all about the threepence ha'penny, your honour. It was Saturday night when I gave her every farthing of the wages I earned that week--and so I does every Saturday night, come when it may, your honour--and when I ax'd her on Monday morning to give me threepence ha'penny, to get me a pint of beer and the little loaf, _bekase_ I was going to a long job in the city, and didn't know what time I'd be back to my _oun_ place, she wouldn't give it me any how, your honour; and sure I did give her a clout or two." "But you would not do so again, I am sure, Phelim," observed his worship. "You should remember that she is your wife, whom you have vowed to protect and cherish; and besides, you know it is disgraceful in any man to strike a woman--especially in an _Irishman_. You must give me your solemn promise, Phelim, that you will not strike her again." "Sure I'd be a _baste_ if I _whopp'd_ her again, your honour," replied Phelim, "when I just thought of a _skame_ to do without it.--It's _ounly_ keeping the threepence ha'penny in my _oun_ pocket, your honour, and I'll have no occasion to _bate_ it out of her at all." The bystanders laughed at this _skame_ of Phelim's, and even the magistrate smiled, as he good-humouredly told Florence, that, though he believed her to be an excellent wife, he thought that she was a little too hard in refusing her husband such a trifle as threepence half-penny when he was going to work so far from home. Florence smiled also; but there was a thoughtful sadness in her smile; and, when the laughter had subsided, she told his worship, that it was not the "_coppers_," nor the bit of a "_bating_" Phelim had given her, that she cared about. He had _harkened_ to bad tales about her, she said, and had sworn never to be good to her till she said "two words" to him. His worship asked her if her husband supposed she was untrue to him. She replied that he did, and implored the magistrate to let her swear to her fidelity! His worship told her he was sure there was no need of any such ceremony--"Phelim," said he, "has too much good sense to listen to any idle stories about you." Still, however, poor Florence would not be pacified; and snatching the Gospels from the table, she pressed the sacred volume fervidly to her lips, and then raising her eyes, she exclaimed--"So help me God! that, barring Phelim and myself, I don't know man from woman." All this while Phelim stood hanging down his head, and fumbling at the buckle of his hat in the simplest manner imaginable. "For shame, Phelim!" said the magistrate, as Florence made an end of her oath--"For shame, Phelim!--How can you stand there and see the distress of such a wife, without coming forward and assuring her of your confidence?--Give her your hand, man, and comfort her as she deserves." Phelim stretched forth his hand--Florence grasped it almost convulsively, and raising it to her lips, all chapped and sun-burnt as it was, she kissed it--they looked each other in the face for a moment--burst into tears, and hastily left the office arm-in-arm. CORINTHIANISM. Mr. Christopher Clutterbuck and Mr. Dionysius Dobbs were charged with having created a great uproar and disturbance in the lobbies of Drury-lane Theatre on the previous evening, and with having grievously assaulted certain peace-officers, who attempted to quell the said disturbance, by taking the said Christopher Clutterbuck and Dionysius Dobbs into custody. These gentlemen were _Corinthians_--that is to say, in the fashion of the time, gentlemen who were "_up_, _down_, and _fly_ to every thing." They were brought from Covent Garden watch-house, together with a gang of young thieves, disorderly cobblers, drunken prostitutes, houseless vagabonds, and other off-scourings of society; and a very respectable appearance they made.--Christopher Clutterbuck, a long, sturdy, burly-boned, short-visaged, curly-headed, whiskerless subject, with a hat of that cut called a _kiddy shallow_, and an enormous pair of bull's-eye spectacles; and Dionysius Dobbs, a lean, lack-beardical, long-faced, sunken-cheeked, hollow-eyed, cossack-waisted concern, with a very gentlemanly imperfection of vision, and a silver eye-glass to correspond. And there they were, for nearly an hour before the arrival of the magistrate, crammed among the tagrag-and-bobtail in the common waiting room, or _sweating_-room, as it is sometimes more properly called.--Mr. Kit Clutterbuck, strutting to and fro, with arms a-kimbo, as vigorous as a turkey-cock; and Dionysius Dobbs, lolling upon one of the forms, lifting his eye-glass from time to time, and gasping like an expiring magpie; whilst the torn and bemudded _toggery_ of each of them, all tacked together with pins, gave ample proof of their love of "_Life_." The magistrates having taken their seats, the demolished Corinthians were ushered into their presence, and a charge, of which the following is the substance, was exhibited against them. Between the third and fourth acts of the play--which happened very appropriately to be _Wild Oats_--they were swaggering about the lobbies, insulting every body that came in their way; the "big one"--that is to say, Mr. Kit Clutterbuck--offering to _mill_ "any body in the world," and repeatedly exclaiming--"Oh! that a man of my own powers would come athwart me!" and the "thin one" (that's Mr. Dionysius Dobbs) lisping responsively--"That's your sort! Go it, Kitty my _covy_!" Nobody taking the challenge, _Kitty my covy_, in the overflowing of his Corinthianism, seized his friend, the delicate Mr. Dionysius Dobbs, and dashing him against the wall of the lobby, shattered one of the lamps with his empty _knowledge-box_. Dionysius Dobbs took the concussion in good part; but Mr. Spring, the box book-keeper, who happened to witness the feat, was not so well pleased, and sent for Bond, the officer, to remove them. Bond prevailed upon them to be a little more quiet; and the loss of the lamp was overlooked. But in a quarter of an hour after, he found them taking indelicate liberties with the wretched women in the saloons, sparring, bellowing, and capering, like a pair of drunken _ourang-outangs_, as he said, to the great danger of the mirrors, and the scandal of the _saloon itself_. He again attempted to remonstrate with them; but all he could get from them was a challenge to fight, from _Kitty my covy_; and therefore he called for the assistance of his brother officers, determined to remove them entirely from the theatre. A posse of other officers came to his assistance; and then began what the Corinthians called a _prime spree_--viz., Billingsgate bellowings, black eyes, broken coxcombs, and rending of garments; Kitty Clutterbuck swinging his arms about like the sails of a windmill; Dionysius Dobbs shrieking and clinging to the balustrades like a monkey in hysterics; and the officers dragging at their collars in front, and twisting at their tails behind; and in this fashion they were, by degrees, _worked_ out of the theatre into the street. And then, as they had been so very obstreperous and Corinthianish, the officers determined to deposit them in the disorderly dépôt of the watch-house. In their way thither, Kitty Clutterbuck got hold of an officer's hand, and gave it such a twist that three of the fingers were dislocated, and the tendons of the wrist very seriously injured. When they got into the watch-house, Kitty conducted himself more like a mad bull than any thing else--butting and bellowing at every thing that came in his way. His honour, the nocturnal constable, therefore, ordered that he should be put down below--in the subterranean _boudoir_; but Mr. Christopher Clutterbuck blew up the boudoir, and his honour too, in good set terms, and threatened his honour, moreover, with the high displeasure of a certain noble marquis. "Tut! none of your gammon!" retorted his honour; and Mr. Christopher Clutterbuck was forthwith "quoited down stairs like a shove-groat shilling;" but not before he had grievously avenged himself on the persons of his _quoiters_. There were five of them engaged in the service, and every one of them came off halting. These matters having been duly set forth in evidence before the magistrates, they called upon the conquered constable-quelled Corinthians for their defence. Whereupon Mr. Christopher Clutterbuck, with many propitiatory deviations from the perpendicular, delivered himself thus:-- "Your worships--that is to say, your worships, I--_hem_! I beg pardon, your worships, but I don't know. It is extremely awkward--all I can say is--that is, all I have to offer is, that I--belong to--to his Majesty's service, _hem_! But unfortunately--unfortunately, your worships, have not been in the habit of being much in _town_, and--the fact is, your worships, I really don't know exactly; but this gentleman (Mr. Dionysius Dobbs) is my friend--my particular friend, and a gentleman, as you perceive--that is, he is a gentleman, I assure you. I suppose your worships, we were not in our regular senses--certainly we could not be--we were not so sober as we might have been at sometimes, I suppose; but the fact is, no doubt, I imagine, we must make amends for any damage we have done, certainly." Mr. Dionysius Dobbs said nothing. Once or twice he essayed to speak, but what he had to say stuck in his throat. So he gasped piteously; and looked unutterable things, with an aspect so droopingly lack-a-daisical, that the very officers seemed sorry for him. Their worships, however, commented severely upon their misdeeds, and ordered that they should put in good and sufficient bail for their appearance at the Quarter Sessions, there to answer to five distinct indictments for assault. Mr. Christopher Clutterbuck in 100_l._, with two sureties in 50_l._ each; and Mr. Dionysius Dobbs in 80_l._, with two sureties in 40_l._ each. They had no bail ready, and were locked up all day, among other unfortunates, in the iron room. In the evening they gave the required bail; and, meanwhile, the Grand Jury returned five true bills against them. But they were never brought to trial; for, before the next Sessions, they found means to make their peace with the injured officers, at an expense of some forty or fifty pounds. And this is worshipful _Corinthianism_. A DEBT OF HONOUR. This was a proceeding, by warrant, for an assault and battery, arising out of the non-settlement of a debt of honour. Mr. Elias Simmons, the complainant, is of the children of Israel; a fat, round man, of a pleasant countenance, and addicted to luxuriating in brown stout and a pipe, in the little back parlour at the Cannon Tavern--a comfortable public-house, somewhere in Knightsbridge. The defendant, Mr. Jacques Breton, is a native of Switzerland; tall, gaunt, and elderly, with a nice sense of honour, "sudden and quick in quarrel," and, withal, in the practice of sometimes taking a half-gill of old sherry in a goblet of pure spring water, at the Cannon Tavern aforesaid. He appeared before the magistrate with a large black silk handkerchief bound round his head, so as to cover one of his eyes. On the day named in the warrant, it being between four and five o'clock in the afternoon, Mr. Elias Simmons was in the little back parlour at the tavern aforesaid, luxuriating as aforesaid, and several other gentlemen, then and there assembled, were luxuriating in like manner, when the door opened, and in stalked Mr. Jacques Breton; who, having seated himself, rang the bell and ordered his sherry and water as usual. Now it so happened that Mr. Jacques Breton was indebted to Mr. Elias Simmons in the sum of two shillings and sixpence; and, moreover, the said debt had been standing almost time immemorial, so that Mr. Elias Simmons was weary of waiting for it; and, as it was a "_debt of honour_," he began to entertain doubts that Mr. Jacques Breton meant to avail himself of that circumstance, and _forget_ to pay it. He did not presume to say that such was the case, but he entertained that opinion; and the moment he saw Mr. Jacques Breton enter the room, he determined in his own mind to put it to the proof. Howbeit, knowing Mr. Jacques Breton's constitutional irascibility, and unwilling to wound his feelings before the English gentlemen present, he addressed him in French, viz., "_Monsieur--voulez-vous--donner moi--mon leetel demiécu, monsieur?_" To which civil interrogation--put with all the good humour in the world--Mr. Jacques Breton instantly replied, "_Ahah! sacré! vat? you want to 'front me!_"--and seizing a heavy _cue_ from a bagatelle board on the table, he grasped it in both hands, and, before the company could interfere, he gave Mr. Elias Simmons a "thundering _thwack_" on the bare head, which shivered his tobacco-pipe into a thousand pieces, and laid him prostrate among the spittoons! For this outrageous and totally unanticipated attack, Mr. Elias Simmons now sought redress from the laws of that country in which he has the honour of sojourning. The magistrate having strictly inquired whether no other provocation had been given, and having been assured there had not, asked Mr. Jacques Breton what he had to say in excuse for such violence? Mr. Jacques Breton prepared for his defence by throwing back his head and lifting up the black silk handkerchief before-mentioned; and having placed himself in this unpicturesque position, he began--"_Ahah! monsieur_--see--he broke my eye! _Voilà, monsieur!_ see my eye! _Voilà!_" It was very evident that beneath his black handkerchief he had a dreadful black eye, and the magistrate asked how he came by it? The witnesses replied that it was done in disarming him of the _cue_, whilst complainant was still sprawling among the spittoons. Mr. Jacques Breton proceeded with his defence. "I vas ver much vex at Monsieur Simmon," said he, "because I vood pay ven it satisfied myself. I vas so mush up--vat you call d--n angry, dat de taut come I vood punise him, ahah. But, monsieur, de _strike_ vas not sufficient to murder von littel--von vara littel fly!" Monsieur Jacques Breton had nothing better to offer in his defence, and after having repeated the same things half-a-dozen times over, he was delivered into the iron custody of the turnkey till he should find bail for his appearance at the Sessions. CHEAP DINING. A person of very respectable exterior was brought before the magistrate, charged with assaulting the waiter, and destroying the property, of an eating-house proprietor in the neighbourhood of Covent-garden. Eating-houses, properly so called, are, as is well known to the initiated, vulgarly denominated "_slap-bang_ shops;" and certainly the affair of the defendant, in the present case, was a genuine slap-bang adventure. The gentleman went into the house in question, and called for some roast beef, "under-done, and not too fat." The waiter instantly brought him what they call "a _plate_" of roast beef--several good jolly slapping slices, swimming in twelve-water gravy, and duly displayed upon an ordinary-sized dinner plate. "What the devil do you bring me such an infernal quantity for?" asked the gentleman. "Do you think I'm a coal porter, or a ploughman? Take it away, you vagabond! and bring me a more christian-like quantity--about half as much." "Master doesn't make _half_ plates, sir," replied the waiter. "Then I shall have none!" rejoined the gentleman, and resuming his gloves, hat, and stick, he was about to make his exit in a rage; but the waiter, with plate of beef in hand, and napkin under arm, placed himself at the head of the stairs, seeking to cut off his retreat with a "Please to pay me for the beef, sir; it was cut by your orders, and you mustn't go till you have paid for it. It only comes to ninepence, sir, _wedgittubles_ and all." "Stand out of my way, you scoundrel! or I'll knock you down!" said the gentleman. "I shan't, sir; you only wants to bilk[16] master, and bolt," replied the waiter. This was enough. In the next instant, a kick from the enraged gentleman sent the plate of beef spinning up to the ceiling; the waiter seized the gentleman by the collar, the gentleman grasped the waiter by the throat, and they struggled together for a moment, and then, down stairs they trundled together, slap bang on to a table just covered with smoking hot dishes of roast and boiled: the table was upset with the concussion, and in the next moment, the half-strangled combatants lay sprawling upon the floor, in the midst of shoulders of mutton, pieces of beef, _dabs_ of boiled cabbage, broken platters, capsized mustard-pots, and many other odd things too tedious to mention. [Illustration] [Illustration: CHEAP DINING.] The master-cook stood aghast at the horrible clatter occasioned by this comical catastrophe, and the ruin which accompanied it; but he was soon sufficiently recovered from his astonishment to gather the gentleman up again; and then, having had him well wiped down, he gave him in charge to a constable. The constable carried him before the magistrate, as a matter of course, and the master-cook now sought compensation in damages for the injury done to his plates, dishes, and victuals, and the waiter sought a reparation for the bodily injury he had sustained. The magistrate directed the gentleman to find bail to answer the complaint of the waiter at the Sessions; but he refused to make any order with respect to the damages upon the eatables; inasmuch as the waiter appeared to be as deeply implicated in that part of the business as the gentleman. THE GENTLEMAN AND HIS BOOTS. One morning in the dog-days, a gentleman presented himself before the magistrate to claim redress against a bootmaker, who, he said, had done him irreparable injury, and had wantonly inflicted upon him unheard-of torments--torments fit only for the howling inhabitants of _Tartarus_!--This unfortunate gentleman had walked or rather _waddled_ into the office slip-shod, in green morocco slippers: whilst he spoke, he stood first upon one foot, and then upon the other; and there was such a manifestation of intense suffering in his voice, his countenance and his gesture, that every person present pitied him. He said he had been miserable enough to have a dispute with his boot-maker, about a pair of boots which he had sent the rascal to repair; and in that dispute he expressed himself more warmly, perhaps, than the occasion warranted; but he little thought he was to suffer for it in the way he had done. Some days after the dispute above-mentioned, the boot-maker sent the boots home; and, on the next morning, he put them on, and walked out with the intention of calling upon several friends, with whom he had particular appointments. But he had not walked more than two or three hundred yards, when his feet began to feel "cursedly uncomfortable;" and the more he walked and tried not to notice them, the more uncomfortable they became. What the plague could be the matter with the boots, he could not imagine! They were quite large enough, and the leather seemed soft and pliable; and yet, had they been made of iron, and two sizes too small for him, he could not have felt more uncomfortable. Nevertheless--though with less and less of comfort, he still walked, and walked, until his walk became a downright ridiculous hobble; and at last, without having called upon a single friend, he returned home in as lamentable a condition as Peter Pindar's pea-perplexed Pilgrim-- "His eyes in tears, his cheeks and brows in sweat, Deep sympathizing with his groaning feet!" "Bring the boot jack, Molly!"--he exclaimed, in a paroxysm of perspiration. Molly brought it in a moment, and, with eager anticipation of ease, he stuck his heel into it; but, alas! he no sooner began to pull than his agonies were increased tenfold! and the boot-jack was kicked away in despair. In two minutes he tried it again--and again he suffered the most excruciating torment. Oh! miserable state!--Hercules himself could not have suffered more whilst writhing in the poisoned shirt; and had the unlucky boot-maker been there at that moment, it is a hundred to one but he would have undergone the fate of the hapless Lychas--at least he would have stood a good chance of being well pulled by the nose, and perhaps knocked down with the boot-jack. At last--for it is miserable to dwell upon such horrors--at last, the gentleman, sweating at every pore, and wound up almost to madness, thrust his heel once more into the yawning jack, and shutting his eyes, he pulled with such a desperate might, that his foot came forth indeed--but it came forth completely _flayed_. Not only the stocking, but the skin was left behind--and even his very corns were torn up by the roots! Can any one imagine a sharper operation than this must have been? And then to be obliged to undergo a similar operation on the other foot, too!--Really it makes one perspire only to think of it. However, it was inevitable[17]--the other foot was torn away in the same miserable manner, and it came forth from the bottom of the confounded boot almost as skinless as an anatomical preparation! "And now, Sir," said the gentleman, when he had told his story thus far--"and now, Sir, what do you suppose was the cause of all this misery?" "Upon my word," replied the magistrate, "I cannot imagine--I never heard of such a case before." "Why, Sir," continued the gentleman, "it was _cobbler's wax_!" "Cobbler's wax!" echoed his worship. "Cobbler's wax, Sir!" re-echoed the gentleman.--"The rascally boot-maker, in pure revenge for the scolding I gave him--had, with _malice prepense_, lined the foot of each boot with cobbler's wax! and I trust, Sir, you will punish him soundly for such unwarrantable wickedness." The magistrate observed that it was altogether a new case; and, though it certainly was a most unpleasant one, he feared it could not be brought within his jurisdiction. The gentleman suggested that, it would probably come under the Act for _preventing the wanton destruction of property_. His stockings were utterly destroyed; his boots were totally spoiled; and his feet were cruelly scarified! All this had been done wantonly and wilfully, he said; and in corroboration of the premises, he now produced from his pocket the dangling remains of the stockings he wore on the agonizing occasion. The stockings were utterly spoiled; and after much urging on the part of the gentleman, his worship consented that a summons should be issued for the boot-maker's appearance. However, it came to nothing; for in half an hour after, the gentleman waddled back to the office, and said the boot-maker and he had come to an _éclaircissement_ which would render his worship's interference unnecessary. What was the nature of that _éclaircissement_ did not appear; but certainly the boot-maker who could have the heart to put a poor gentleman to so much misery ought no longer to call himself one of the "_gentle_ craft." BEAUTY AND THE BROOMSTICK. Mrs. Mary Evans was brought before the magistrate on a warrant charging her with an assault on the person of Miss Jemima Jennings. Mrs. Mary Evans was a tall thin matron, somewhat declining into the vale of years; but her countenance--especially the most prominent part of it, which was very prominent indeed--was still blooming with spirituous comforts. Miss Jemima Jennings was a very pretty mild-spoken young woman, with a countenance blooming with youth. Miss Jemima deposed, that on a certain day named, she _happened_ to be going along a certain street, and, as the weather was very hot, she _happened_ to go into a certain public-house to take a glass of Henry Meux and Co.'s entire. She there _happened_ to see a gentleman, who very politely asked her to take a glass of _something short_;[18] telling her it would _squench_ her thirst better than porter. She resisted his invitation for some time; but at length she consented to take a drop of something short--a cool _dodger of cloves and brandy_;[19] and having drank it, she thanked the gentleman for his politeness, and went on her way--pretty considerably refreshed. Next day, she _happened_ to go into the same public-house again--not with any expectation of meeting the same gentleman again, but with the sole intention of taking a dodger of cloves and brandy on her own account--she having derived great comfort from the one she took on the preceding day. It so _happened_ that the gentleman was not there; at which she was very much pleased; for she could not "bear the _highdear_ of being _beholding_ to one gentleman two days together." Whilst she was taking her cloves and brandy, thinking of nothing at all but how very nice it was, who should come in but the defendant, Mrs. Evans, with an "I want to speak to _you_, young woman." Now she, Miss Jemima, thought this very comical, for the lady was a perfect stranger to her. However, she followed her, up one street, and down another, till at last Mrs. Evans opened the door of a house and said, "pray walk in, _Mem_;" and in she did walk, wondering what all this could mean. Mrs. Evans, having closed the door, made her a low courtesy, and said, "Have the kindness to walk this way, _Mem_;" and Miss Jemima followed her along the passage to an inner apartment, like a lamb to the slaughter-house, as she said; for they had no sooner entered the room, than Mrs. Evans seized a _broomstick_, and without uttering a single word, began to belabour her over the back and shoulders with all her might! Miss Jemima shrieked or _squeeked_, as she called it, for help; but not a soul came to her assistance; and she was obliged to defend herself as well as she could with her hands alone, till Mrs. Evans dropped her broomstick for lack of breath; and then she, Miss Jemima, made her way out of the house, covered with bruises and wonder. This was the unprovoked assault complained of and for this Miss Jemima Jennings claimed redress at the hands of the magistrate. Mrs. Evans made a very voluble defence. She was cursed with a husband, she said, who--though she had brought him twelve children--was continually hankering after other women. On Monday last he went out, taking with him six _goolden_ sovereigns, which she had put by to pay her coal-merchant, and he did not come near home for three whole days thereafter. Some of her neighbours told her that he had been seen courting the complainant (Miss Jemima) with cloves and brandy; and she was so _hasperated_ at hearing this, that she certainly did entice Miss Jemima to her house, and _bansell_ her with the broomstick as she had described. In conclusion, she admitted that she was wrong in so doing, but her passion got the better of her judgment, and she hoped his worship would consider that as an excuse. It was very hard, she said, for a woman at her time of life to be neglected for such _creatures_. The magistrate told her he thought she ought not to have proceeded to such a violent outrage upon the complainant, without better proof that she was the cause of her husband's faithlessness; but as jealousy was an ungovernable passion, and as she appeared to repent of her violence, he would order the warrant to be suspended for a day or two, in the hope that she would in that time make her peace with the complainant, and save herself further trouble and expense. THE COCKNEY AND THE CAPTAIN. Captain J---- F----, a gallant officer, who had lost an eye in the service of his country, and was residing with his family in the pleasant village of Mortlake, was brought before the magistrate, on a warrant, charging him with having assaulted and beaten one Samuel Cooper, who called himself "a London shop-keeper, in a small way, residing in _Vitechapple_." Samuel Cooper, it appears, went out to ruralise one fine sunny day, and having strolled as far as Mortlake, he called upon a friend of his, a little fat man in a brown bob wig, who keeps a little shop in the neighbourhood of that village. It is a sweet little cottage, with a little garden in front of it, well stored with potherbs, "gilli-flowers gentle and rosemarie;" and has a little wicket gate opening to the road. His bob-wigg'd friend was _mighty_ glad to see him, and invited him to stay to dinner; an invitation which was gladly accepted, for Samuel Cooper was come out to make a day of it. They had a dish of very nice beans and bacon for dinner--broad Windsors, and a prime cut of gammon; and having chatted an hour or two, and finished a couple of pots of mild porter, Samuel Cooper walked out into the little garden in front of the cottage, and leaned over the little wicket-gate, enjoying the beauties of the prospect and a lovely evening, whilst his bob-wigg'd friend was busied with some little matters in his shop. As Samuel Cooper was thus leaning over the gate--pondering, no doubt, on the possibility of getting back to _Vitechapple_, without paying coach-hire--he was aware of two ladies coming along the lane. One of these ladies was a considerable distance behind the other; and when the foremost of them came nearly opposite to the place where Samuel Cooper stood, she stooped--apparently without seeing him--and began rectifying the lace of one of her boots, which appeared to have got loose in walking. Now, whether Samuel Cooper is a man prone to gallantry, or whether the delightful evening, the beans and bacon, and the mild porter, opened his heart more than usual, we know not--but so it was, that when he saw the lady stoop, and begin doing something at her foot, he suddenly called to her, "Shall I tie up your boot-lace for you, Ma'am?" Unlucky Samuel Cooper! The words had scarcely passed his lips when the lady raised herself, looked round for a moment, gave a loud shriek, and ran off down the lane with the speed of an antelope--followed by the loitering lady whom Samuel had seen in the distance. Samuel Cooper looked after them as they ran, and smiled to think that women should be so "_timmersome_." But he soon had cause to smile on the other side of his mouth, as it were; for in the next moment Captain F---- rushed into the garden, exclaiming, "You rascal! how dare you insult a lady?" and before the astonished Samuel could reply, he received the gallant Captain's clenched fist full on the centre of his nose, and down he went--all amongst his bob-wigg'd friend's gilliflowers! The Captain then walked away; and the luckless Samuel gathered himself up, leaned his head over the wicket-gate, and there he stood bleeding for more than half an hour, bemoaned both by himself and his bob-wigg'd friend. This was the violence he complained of. He assured his worship that he had not the most distant idea of insulting the lady, and he was utterly astonished at the consequences that ensued. "Thou shalt be punished for thus frighting me, A _woman_, naturally born to fears; And though thou now confess thou didst but jest, With my vex'd spirits I cannot make a truce, But they will quake and tremble all this day,"-- said Lady Constance to William Longsword, Earl of Salisbury, when he merely told her there was a wedding in hand; and what would she have said had the noble Earl startled her with such an offer as Samuel Cooper's? But, may be, honest Samuel has tied up the boot-laces of many a buxom lass at _Vitechapple_, and he thought he might do the same kind service for the ladies at Mortlake. Ah! simple Samuel Cooper! The whole of his statement, as far as the Captain was concerned, was fully substantiated by his bob-wigg'd friend, whose garden had been watered, as it were, with Samuel's innocent blood; and then, Captain F---- was called upon for his defence. The gallant Captain gave a rather different account of the affair: and took off something from Samuel's veracity. The Captain said his wife and sister had gone to visit a friend at some distance on the afternoon in question, and some time afterwards he set out with the intention of meeting and accompanying them home; but a sudden shower coming on, he took shelter in the house of a brother officer on the road. Whilst he remained there, he saw his wife and sister pass by, and he was just preparing to follow them when he heard his wife shriek. Rushing instantly from the house, he met both the ladies running back again with great trepidation and alarm. He hastily inquired what was the matter. They told him as hastily, that they had been grossly insulted by the complainant, Samuel, who still stood chuckling at the gate. He naturally felt very angry, and immediately went up to Samuel, and taking him gently by the lappel of his coat, he said to him, "Now my good fellow, unless you make an apology to the ladies, for your insult, I certainly will chastise you." "Boo!"--said the boorish Samuel--"I'll see 'em d--d first!" and as he said this he threw his arms up in such a manner that his elbow struck the Captain on the chin; whereupon the Captain knocked him down, as above stated; and he submitted that any other man would have done the same under the same circumstances. The magistrate viewed the matter in the same light. He told Samuel, his conduct to the lady was extremely impertinent; and his manner, when remonstrated with, grossly insolent; and therefore he should discharge the warrant, leaving him to seek his remedy at the Quarter Sessions, if he thought proper. Samuel stared, and appeared inclined to reply, but seeing it was useless, he left the office in silence, wondering more than ever; and his bob-wigg'd friend slowly followed him. JEMMY SULLIVAN. A jocund little Irishman, with dark sparkling eyes and black glossy well-curled poll, dressed in a carter's frock, and heavy travel-stained shoes, was brought in by some of the patrol, who had found him strolling about Long-acre, in the dusk of the evening, apparently without either aim or object, and laden with a large bundle tied up in a very handsome shawl. This bundle contained seven gowns, sundry shawls, handkerchiefs, hose, &c., and a smartly-trimmed straw-bonnet nearly new; and the patrol declared, that from the very unsatisfactory manner in which he accounted for his possession of these articles, they verily believed he had stolen them. They also pointed out to the magistrate a round hole, about the size of a shilling, in the side of his hat crown, which they strongly suspected had been made by a pistol-ball. "What is your name, friend?" said his worship, to the brilliant-eyed, smiling prisoner. "Jemmy Sullivan! your honour," was the instantaneous reply, in a rich Tipperary brogue, and a tone so loud, that all the office echoed, "Jemmy Sullivan!" "And pray, where did you bring these clothes from, and to whom do they belong?" "From Portsmouth, your honour--and they belongs to the wife o' me." The magistrate doubted the correctness of this statement--it was not likely that the wife of such a man could have such a wardrobe. "Sure enough it's the truth, every bit of it, your honour," replied Jemmy Sullivan. "How came this hole in your hat?" asked his worship. "Is it the hole your honour's axing about?--'Faith, then, the mice made it, to get at the bread and the cheese, your honour--bad luck to 'em!" "What! do you carry your bread and cheese in your hat?" "No, 'faith, your honour, not a bit of it any time, barrin that time the mice stole it all; and then, your honour, it was not in it, that's the hat, at that same time, but on the shelf, your honour, and I'd none of it left for me breakfast at all. Gad's blood, says I to meself, but ye shan't do that to me again, says I, for I'll put it under me hat all the night; and so I did, your honour; but bad luck to them, the craturs, they bored the hole clane through the side of it, which your honour's axing about." "Are you sure it was not on _your head_ when the ball was fired at it?" asked his worship, without seeming to have listened to his bread and cheese adventure. "Was it on me head, your honour! Faith if it was, meself wouldn't be here spaking to you about the mice," replied Jemmy Sullivan. The officers, in searching his pockets, had found a number of English and Irish pawnbrokers' duplicates; and the magistrate, selecting one of them, asked,-- "Where did you get this ticket for a pelisse?" "Bought it, your honour, of Myke Dermot, in Donaghadee--_He's a bagpipes_, your honour." "And pray what are you?" "A tailor, your honour," was the reply. But one of the patrol, who is skilful in such matters, having examined his hands, declared, that if he was a tailor, he had not used the needle for twelve months at least. "What have you to say to that, Mr. Sullivan?" asked his worship. "Bad luck to the _tailoring_, your honour, it wouldn't agree with me at all, anyhow, and I discharged meself clane out of it, by the same token, Sir." "And how have you got your living since?" "I walks down be the water-side, your honour, an gets me little bits o' reeds an things, and ties 'em up like little bagpipes, and plays on 'em, your honour, _Thady you Gander_ an _Gramachree_, and the likes of 'em; an the jontelmen plases to hear me, your honour; an some gives me a shilling, an some half-a-crown, may be, an some buys the little bagpipes for themselves, your honour." Honest Jemmy endeavoured to make the nature of these "little bagpipes" very plain to his honour; but he did not seem to understand it exactly himself, and so he made nothing of it. Neither could he account for his bringing his wife's wardrobe up to London whilst she remained herself in Portsmouth; and eventually he was committed for further examination. Even this order for his imprisonment he took in perfect good humour; and having carefully counted the ten or twelve shillings which the magistrate ordered to be returned to him, he replaced them at the very bottom of his pocket, and said, "I hopes your honour'll take care o' me things?" The magistrate assured him he would, and honest Jemmy Sullivan then followed the turnkey as blithely as if he had been going to Donnybrook Fair instead of to prison. This poor fellow was kept in prison nearly a month, during which time his wife came to London, and not hearing anything of him at the place they had appointed for their meeting, she went over to Ireland in search of him. At length Jemmy was discharged because there was no evidence against him; but his clothes were not given up to him till long after. ONE OF THE FANCY. A poor harmless translator of old shoes was placed at the bar by a city officer, upon a charge of having stolen, or otherwise improperly obtained, a cheque for 300_l._ from one Jonathan Freshfield, _Esquire_, "one of the Fancy." This Jonathan Freshfield, Esq., was a diminutive, forked-radish sort of a young man, very fashionably attired, or, as he would say, _kiddily togg'd_; and, though it was scarcely noon, he was rather _queer in the attic_; that is to say, not exactly sober. He stated his case in this manner:--"Here--I wish this fellow to say how he got hold o' my cheque for three hundred--that's all, you know; let him come that, and I shall be satisfied. Rum go--had it last night, missed it this morning--d----d rum go! Here--here it is, see; payable at Hankey's--all right--grabbed him myself. Went to Hankey's two hours 'fore Bank opened--waited two hours--sat upon little stool--wouldn't be done, you know. In he comes with it--grabs him! There he was--looked like a fool. 'Hallo!' says I, 'how did you come by it?' Mum. Hadn't a word, you know. Only let him come it now, all about it, and I'm satisfied. Don't like to be done--a rum go, but can't stand it--that's all." The city officer said he had been sent for to Hankey's to take the prisoner into custody; and having done so he carried him before the Lord Mayor; but as it appeared the offence, if there was any, had been committed in the county, his Lordship had referred the matter to Bow-street. The magistrate asked to see the cheque, as the Esquire called it. The officer produced it, and it proved not to be a cheque, but an acknowledgment from Messrs. Hankey and Co. that they had received 300_l._ from Jonathan Freshfield, Esq., for which they would account to him on demand. "Pray, have you an account at Hankey's, Mr. Freshfield?" asked the magistrate. Mr. Freshfield replied, "Who, I? not a bit of it. I'm from the country, you know. D--n town!--Had enough of it almost. Diddled in this manner!--it's a _sick'ner_. Got it again though--only want to know how that fellow, the long one there, came by it. Put the _blunt_ at Hankey's, to be safe--'cause wouldn't be done, and then lost the cheque!--that's a rum go--isn't it, your worship?" The magistrate asked the prisoner how he came by it. He said he lodged at _Mister_ Burn's, the _fighting man's_, in Windmill-street, and two gentlemen there, whom he did not know, gave him the cheque to get cashed. His worship directed an officer to go to Burn's house and inquire about it. In about half an hour he returned with _Mister_ Burn in company. "Burn, do you know anything of this business?" asked the magistrate.--"Who was it gave this paper to the man at the bar?" "Who gave it to him, your worship?" said Mister Burn, "Why, I did." "You did!--and pray how did you come by it?"--"Why, I won it, your worship--won it by _shaking in the hat_;" replied Mister Burn, squeezing the sides of his hat together, and giving it a hearty shake to show his worship the trick of it. The magistrate looked at Mr. Freshfield; Mr. Freshfield looked at Mister Burn; Mister Burn looked boldly round at everybody as if nothing was the matter, and at last, Mr. Freshfield ejaculated--"Well, that's a rum go, however! D--n me, never thought of that, you know. Don't believe it, though. Coming it strong, eh! Burn? May be, though--won't be sure." After soliloquising some time in this style, he began a long history of his having gone from Spring's to Burn's, and Burn's to Spring's, and betting upon the "match for Monday;" and taking the long odds at one place and giving them at another, till the magistrate and everybody else was quite weary of it. So his worship discharged the prisoner; recommended _Mister_ Burn not to addict himself to "shaking in the hat," directed the city officer to return Mr. Freshfield his 300_l._ "cheque," and advised Mr. Freshfield to put it into his pocket, and return to his native woods as soon as possible. A SUNDAY'S RIDE. Mr. Lester, a respectable elderly man of considerable property, residing at Battersea-rise, applied to the magistrate for an assault warrant against a person whom he described as a high-flying linen-draper, carrying on business in Parliament-street. The warrant was granted upon his affidavit, and Mr. Highflyer was shortly after brought up in custody; but as the magistrate had been called from the bench for a few minutes, he seized that opportunity of making an _atonement_ for his misconduct to the party complaining, and so escaped the Sessions, though the assault and outrage he had committed were certainly most sessionable.[20] It appeared that this Mr. Highflyer had determined on taking his spouse for a ride in a gig--we beg his pardon, in a _tilbury_,--one Sunday, and that they did take a ride in a tilbury accordingly. They trotted gaily along in connubial comfort till they had almost reached Battersea-rise; but there all the connubial comfort evaporated: for--whether it was that the motion of the tilbury swung away Mr. Highflyer's ordinary notions of connubial concord, or whether the expansion of prospect around him produced a corresponding expansion of the amatory principle within him, we know not--but so it was, that about a quarter of a mile on this side Battersea-rise, he bowed very gallantly to a pretty young woman who was passing; and she familiarly nodded in return. Now this might be all very innocent, but his wife thought otherwise; and she took so much umbrage at it, that high words ensued. In short the "green-eyed monster" took possession of all her perceptions; and Mr. Highflyer, in the buoyancy of his heart and tilbury, carried it with such a high hand--so cavalierly as it were, that his lady declared she would not ride another inch with such a faithless creature, and insisted upon his setting her down directly. And cruel Mr. Highflyer did set her down _instanter_;--instead of trying to pacify her, and convince her of her error, he coolly set her down and drove on without her. This was nearly opposite Mr. Lester's house on Battersea-rise; and as Mr. Lester looked through his window he saw the lady sitting on a low wall by the road-side, weeping and sobbing most piteously. Mr. Lester, though as sturdy a John Bull as ever thrust carver into smoking sirloin, has much of the spirit of chivalry in his composition, and seeing a lady in such a distressing situation, he sallied forth and offered her a temporary asylum in his hospitable little parlour. The weeping lady thankfully accepted his offer; but he had no sooner seated her carefully on his sofa than she fell into hysterics, and it required all the skill of his wife, his daughters, and his handmaidens, to bring her to her senses again. She did recover, however, but it was only to renew her sighs and tears; and neither Mr. Lester nor his wife knew what to make of it, when a thundering rap at the door nearly shook all the glass out of the windows, and in the next moment Mr. Highflyer stalked loftily into the parlour. At the sight of him Mrs. Highflyer went off into hysterics again, and Mr. Highflyer, in his endeavours to recover her from the fit, conducted himself so _at-homeishly_, that Mr. Lester did not half like it.--He called about him for all sorts of things, tore the sofa cover, threw the cushions about the room, upset the china tea things, and broke the pole of the fire screen! At length Mr. Lester's anger got the better of his hospitality, and he reminded Mr. Highflyer that he was not in his own house. "Damn the house!" exclaimed Mr. Highflyer, "what the devil do I care whose house it is? I am a gentleman and nothing else, and I shall do what I like--here or anywhere else!" "No, Sir!" said the astonished Mr. Lester, "No, Sir, you shall not, and no _gentleman_ would have done as you have done already." I'faith this was enough--the words had scarcely passed Mr. Lester's teeth, when three of those teeth were loosened to their very foundation by a blow from the gentlemanly fist of Mr. Highflyer. "Take that, Sir!" said he, "and if you don't like it, I'll fight you with either sword or pistols!" The astonished Mr. Lester was still more astonished at this treatment; but being no match in _thews_ and _sinews_ for Mr. Highflyer, he flew to the poker, and had it not been for the interference of the ladies, Mr. Highflyer would doubtless have been laid low. As it was, the affair went off in a clamorous palaver; after which Mr. and Mrs. Highflyer returned to town in the tilbury, highly dissatisfied with their day's pleasure; and Mr. Lester went to bed, wondering that there should be such queer people in the world. It was reported among the officers that the peace-offering for all this was _ten sovereigns_; and if so, Mr. Highflyer got off cheaply. DISAPPOINTED LOVE. Mr. Owen M'Carthy appeared in custody before the Bench, to answer the complaint of Mrs. Margaret Reading, spinster. Mr. Owen M'Carthy is five feet two without his shoes, and sixty-seven years old; but--as he himself observed--"sound as the big bell of St. Paul's, both in mind and body." The lady has seen sixty-five winters pass away; and in all that time she has so conducted herself that no living creature can say, "black is the white of her eye"--at least that is her opinion; and surely she ought to know. It appeared by her evidence that Mr. Owen M'Carthy and she reside under the same roof, and have for many years been upon the most friendly terms; till, in evil hour, Mr. Owen M'Carthy, who was then a widower, took unto himself a second love--a second _wife_ he called her; but Mrs. Margaret Reading declared it was no such thing. Well, this second wife, or mistress, be it which it will, according to Mrs. Margaret Reading's account, is "a born devil;" and takes every opportunity of treating Mrs. Margaret Reading in the most ridiculous manner--such as calling her a frumpish old fool, spitting at her as she goes up and downstairs, &c., and in all this Mr. Owen M'Carthy, forgetting the kindness that formerly existed between them, encourages her. One day Mrs. Margaret Reading went up to their apartment, determined to give them the telling of some of their faults; but she had scarcely opened her mouth, when Mr. Owen M'Carthy bounced up from his chair, and gave her such a push, that she tumbled down, rolled on to the landing-place, and it was God's mercy she did not trundle downstairs. This was the assault complained of, and she called upon the magistrate to punish him _sewerely_. Mr. Owen M'Carthy in his defence said, "May it plase your honour, when the wife that I had twenty-seven years died, this ould woman and another was living in the place, and they both made love to me extramely. But I thought to myself, thinks I, your honour, sure and what would I do with two ould women at one and the same time? Well, then, your wortchip, says I, in that case I'll ounly have one of 'em, and that will be Judy M'Craw; bekase, your wortchip, she was the comlier one of the two, and I larnt she'd the best carackter for peaceableness; and I married her; and, saving your wortchip's presence, she's my lawful wife at this same time, and like to be, sure enough, to the end of it. Well, your honour, bekase of this, Mrs. Reading bother'd me exsaadingly, and wouldn't be quiet for her jealousy, and was always making _corruptions_ between me and Mrs. Owen M'Carthy that is; and so, when she comed up with her phillaloo botheration, about nothing in the world but I wouldn't have her, I put my hand out, and 'go along wid you, Misthress Margaret,' says I; and with that she laade herself clane down o' the floor, and rolled herself out of it just in no time, your honour, at all." Mrs. Margaret had nothing to say against this, and she was non-suited. TOM CRIB AND THE COPPERSMITHS. The Champion of England--not he who, gallantly armed, rode proudly through ranks of assembled chivalry, and challenged the world in defence of his sovereign; but the champion of England's prouder pugilism--the belted hero of the prize ring--the man whose fist is fate--the--in a word, honest Tom Crib, entered the office covered with mud, and holding, in his giant grasp, a little, well-bemudded, wriggling coppersmith, named William Bull.--"And please your worships," said the Champion, "this here little rascal (_shaking him_) comes into my tap-room, with two or three dirty chaps of the same sort, and got so sweet upon themselves with drinking beer, that they must needs go into the parlour to drink grog amongst the gentlemen, your worships! and because I wouldn't stand that, this here little rascal (_shaking him again_) smashes two panes of glass to shivers, and then tried to bolt, but it wouldn't do." [Illustration] The Champion was desired to loose his hold upon the coppersmith, which he did instantly; but he still regarded him with a look of angry indignation, whilst the saucy little coppersmith, adjusting his disordered jacket, exclaimed, "My eyes, Mister Tommy! let us ever catch you at Bristol again, and we'll _zarve_ you out for this!" Mr. Bull--Bill Bull, he called himself--was ordered to be quiet, on pain of being instantly locked up; and other witnesses of the affair were examined, by whose evidence the Champion's account of it was fully substantiated, with an additional circumstance or two, which he, with his usual modesty, had omitted to mention, viz. that he, with his own right arm, cleared his house of three coxcombical coppersmiths in a minute, and that when the fourth, Mr. Bill Bull, milled the glaze and bolted, the Champion himself pursued with the fleetness of a wild elephant, caught the scampering coppersmith by the "_scuff_ of the neck," and falling with him to the earth, they rolled over and over in the mud, till the impetus of their fall was spent, and then they got up again; and this was the way in which they came to be so muddily encased. [Illustration] The coppersmith had nothing to say for himself except that he thought himself "as good a man as Mister Tommy _any day_," and that he had as much right to drink grog in a parlour, as any _other_ gentleman. The magistrate commended the Champion's conduct; told him he should be protected from insult and outrage in his business; and ordered the pot-valiant coppersmith to be locked up until he should pay for the windows he had demolished. SOLOMON AND DESDEMONA. An elderly man, brown as a fresh-roasted coffee-berry, a poll that bespoke him of the race of wandering gipsies, and "the darkness of whose Oriental eye accorded with his _gipsy_ origin," advanced towards the table, bowing at every step, and said, "May it please your vorship's honour, I'm Mister Lovell, your vorship (_another bow_), knife-grinder and chair-bottomer, your vorship." Having so said, he smiled and bowed again; and then, shading the lower part of his brown shining visage with his rusty hat, he stood smiling and bowing, and bowing and smiling; but whatever else he had to say, refused to be said. At length, seemingly to his great relief, the magistrate asked him what he wanted. "Your vorship, I am Mister Lovell, the knife-grinder, your vorship, and I _vantz_ you to give me a little bit of 'sistance to get me back my _vife_, _vot_ I _vere_ lawfully married to last Monday _vere_ a _veek_, at _Soreditch_ Church:--that's _vot_ I _vantz_, your vorship." "Yours is a very unusual application, indeed, friend," said the magistrate; "I am frequently requested to _part_ man and wife, but I do not recollect that I was ever once asked to bring them together." "Vell, your vorship," replied Mr. Lovell, "but mine's a werry hard case--a werry hard case, indeed! Here's the certifykit, your vorship." His worship told Mr. Lovell he wanted no voucher in proof of what he said. He opened the certificate, however, and found it fairly set forth therein, that on a certain day specified, "Solomon Lovell, bachelor, and Desdemona Cocks, spinster," were duly married by banns in Shoreditch Church. "And pray, what is become of the 'gentle Desdemona?'" asked his worship, as he returned the certificate to Mr. Lovell, who instantly crammed it back again into the sow-skin purse from which he had taken it; and then having deposited it safely in the very bottom of his left-hand breast-pocket, he proceeded to lay open his entire grievance. It was a lengthy, and rather unconnected narrative, but we gathered from it that Mr. Solomon Lovell absolutely loved the gentle Desdemona; and but for that, "he would not his _unhoused_ free condition have put into circumscription and confine,"--"not on no account whatever." But the friends of Desdemona, who were in the _costermongering_ line, thought the match too _low_ for her; and they had not been united more than three happy days, when those friends cruelly contrived to _inwiggle_ her _away_ from his arms, and shut her up in a garret in Charles Street, Drury Lane, where they still continued to detain her, in spite of her unceasing tears, and his most earnest remonstrances. "Of what age is the lady?" asked the magistrate. "Your vorship, she'll be _forty-three_ come a fortnight a'ter next Bart'lemy fair." "Then she is no _chicken_! and she certainly could come to you, if she was inclined to do so." "No, your vorship, she's no chicken, but she's desperate tender, though; and they'd kill and murder her, if she vasn't to keep herself quiet." "Is she very disconsolate under her bereavement?" "_Anan_, your vorship," said Solomon. "Does she grieve much?" "Oh! desperately, as your vorship may natt'rully suppose, when ve'd only come together three days." "Is she very handsome?" This was a question which seemed rather to bother the love-lorn Solomon. He simpered and sighed, and looked down and looked up, and nibbled the edge of his hat; and when the question had been repeated the third time, he replied, "I don't know 'xactly, your vorship--she's reckoned so. And I reckon--I reckon I vouldn't a married her if I didn't think so, your vorship!" After some further question and reply, in which he earnestly entreated that an officer might be sent with him to enforce his claim, and get the gentle Desdemona out of the garret by force of arms, the magistrate told him he could do nothing for him; whereupon he gathered up his features into a frown, put the lid upon his knowledge-box, and stalked out of the office, exclaiming, "Then by goles, I'll go to Marlborough-street! for I vont be diddled out of my vife in this ere manner, howsomever." A COACHMAN'S CONSCIENCE. A hackney coachman appeared before the Bench, upon a summons to answer the complaint of a gentleman from whom he had extorted _seven_ shillings and sixpence for a _four_ shilling fare! "How could you think of attempting such an impudent extortion!" asked the magistrate. "Why, your worship," replied honest _Coachee_, "I'll tell you how it was--I knows I'm guilty, but I'll tell you how it was, and I hopes you'll take it into your consideration, and not be too hard upon me. The gemman's sarvent what rode on the box wi' me, said to me, says he, as we were toddling a little ways down Oxford-street, your worship, says he to me, says he, 'Coachee,' says he, 'there's a _weddun_ (wedding) in _this_ job, so you needn't be afeard of laying it on pretty thick; and then, you know, you can tip me a _bob_ for my own cheek.'" "And pray what is a _bob_?" asked his worship. "Why a _shilling_, your honour, all the world over! When he ax'd me to stand a bob, your worship, I thought he was a rummish sort of a customer, but howsomever I took the hint; and when I set the gemman down I ax'd seven-and-sixpence, instead of a four shillings, God forgive me! But I thought I couldn't in conscience ax less?" "And pray," asked the magistrate, "did you give the servant the shilling you had promised him?" "No, your worship, I wouldn't give him anything; 'cause I thought he didn't desarve it, after putting me up to diddle his own master in that manner!" The gentleman said it was certainly true that on the day in question he had been present at a wedding; but he had received an excellent character with the servant, and as he had now lived with him several years, during which time his whole conduct had been unexceptionable, he would not believe him capable of making such an unprincipled proposition. The magistrate said he had little doubt that it was a mere invention of the coachman's; and even admitting his story to be true, it would be no palliation of his offence. Honest Coachee was then fined twenty shillings for the pliability of his _conscience_, and he left the office, observing, "I'll take 'nation good care how I gets into this here sort of a scrape again!" DANCING DONAGHU. Michael--or as he himself called it, "_Mykle_ Donaghu," was brought up on a warrant for assaulting and beating James Davis. Mr. Davis is a tall, gaunt, lank-haired, melancholy, middle-aged Englishman. _Mykle_, on the contrary, is a short, plump, curly-headed, bushy-whiskered, merry little Irishman. They both lodge in the same house--_Mykle_ uppermost, and thence comes the grievance; for _Mykle_, when he is _beery_--and seldom's the time he is not--is given to dancing. Mr. Davis is a man of staid and serious habits, who goes to bed every night when the clock strikes ten, and every night--just as he gets into his first sleep--home comes sprightly _Mykle_, brimful of beer, and begins dancing his "Irish _fandangoes_" about the room overhead, till he shakes down great patches of the ceiling upon poor Mr. Davis below. Nay, it was stated by a _credible_ witness, that he sometimes danced so vigorously as to shake down the ceilings in the adjoining house! Mr. Davis bore these irregularities as long as he could, but at last his patience, as he said, was quite entirely exhausted, and he ventured to tell _Mykle_ that he would bear it no longer; when, what does _Mykle_ do, but seize the _poker_, and threaten to "_Kennedy_ him"[21] if he dared to interfere with his private amusements. Mr. Davis, quiet as he is, had too much spirit to let any man swagger over him in this manner; and, whilst _Mykle_ was "shelalegh-ing about" with his poker, he attempted to take it from him; and in the attempt he received sundry thumps on the head and shoulders, which made his eyes strike fire. Thus far was Mr. Davis's statement; and now for _Mykle_ Donaghu:-- "Plase your honour," said he, "is it bekase a man canna dance if he's merry?--and Misther Davis, says I, is it myself that isna' to dance the bit bekase the lazy likes of ye canna get yer sleep before sun down? I shall go to the bed in reasonable time, when I like me self, Misther Davis, says I. Come out o' that, ye Irish Grecian, says he--come out o' that, and I'll give it to ye! And he pulls the coat off him, and shakes his fist in the face of me; and come out o' that, says he, again, and I'll give it t' ye. Faith, Mr. Davis, says I, and if ye will give it to me, ye sha'n't give it me for nothin, for be th' powers I shall _Kennedy_ ye, my jewel; and I took Kennedy to myself, and he had his fists in his own hands, y'r honour, and faith it wouldn't be aisy to say which of us had the best of it," &c. Some witnesses brought by Mr. Davis, admitted that Mr. Davis had challenged _Mykle_ to come out of his room, and that something like a regular fight had taken place between them; and, therefore, the magistrate dismissed the warrant. "But, Michael," said his worship, "do not let me hear any more of your tricks; drink less beer in future."--"I _sholl_, Sir!" said _Mykle_. "And, Michael, let me advise you to go home in better time in future."--"I _sholl_, Sir!" "And, above all, Michael, get another lodging as soon as you can; and take care that your amusements do not disturb your neighbours." "I _sholl_, Sir!" reiterated honest _Mykle_, and making a bow--so low that the tattered hat he held in his own right hand almost touched the floor, whilst his left leg mounted into the air behind--he gave his worship St. Patrick's benison, and let the office a merrier man than he entered it. A MISS-ADVENTURE. Among the watch-house prisoners from St. Mary-le-Strand, was a young gentleman, who was charged with having beaten a lady. He was a fine, blooming, well-grown, genteelly-clad young gentleman--a very Adonis of the woods; and his name was Smith--William Augustus Smith, as we understood. His case had been thus registered in the charge-book, by his honour the Night Constable of St. Mary-le-Strand:-- "Mr. Smith charges Miss Charlotte Long with picking him up and striking him; and Miss Charlotte Long charges Mr. Smith with knocking her down." Of course it was a "cross-charge;" and his honour the Night Constable of course detained both parties; and, moreover, was coarse enough "to shut them up down below." But that was no great matter; for Mr. Smith's bloom suffered no deterioration in consequence; and as for the lady, as his honour the Night Constable said, why she was "_manured_ to the place."[22] It appeared that on Saturday night Mr. Smith went to one of the Theatres; and after the Theatre was closed, he went to the Rainbow to sup; and, after the supper was over, he returned through Temple-bar, towards his home in the West, arm in arm with a friend; and that friend was smoking a cigar. In this way they walked along very comfortably--"by none offended, and offending none"--quietly discussing the beauty of the night, and the merits of the players, and the supper, and the wine, and the waiters at the Rainbow, and every thing of that sort, until, just as they emerged from beneath the arch-way of Temple-bar, Miss Charlotte Long, in passing, squeezed the dexter hand of his smoking friend. Now, whether it was that his smoking friend had "a hydrophobia" of ladies in general, or whether he _smoked_ Miss Charlotte Long's _character_ in particular, Mr. Smith could not say; but so it was, that Miss Charlotte Long no sooner squeezed his smoking friend's hand, than his smoking friend _smoked_ Miss Charlotte Long's _countenance_, by puffing a cloud from his cigar at it. Mr. Smith could not, in justice, be held responsible for his friend's want of gallantry; but nevertheless Miss Charlotte Long instantly gave Mr. Smith such a smack on his nice round blooming cheek, that all the avenues of the Temple echoed to the blow; and he, fearing the smack would be repeated pushed her from him, and she lost her balance. "And this is the whole truth of the matter," quoth Mr. Smith. Miss Charlotte Long, on the other hand, declared that she never touched the filthy fist of the smoker--but that as she was quietly walking along, he rudely puffed the smoke in her face--a thing which she could not a-bear--and then Mr. Smith knocked her down as flat as possible--like a brute as he was. The worthy magistrate having listened to these counter-statements with great patience, expressed a wish to see the smoker, and that gentleman immediately came forward; but unfortunately _his_ recollection of the affair had entirely evaporated with the fumes of his own cigar; and eventually the double charge was dismissed, upon each party paying their own fees; the magistrate admonishing Mr. Smith to keep better hours in future, if he valued either his morals or his complexion. THE WEDDING RING. Mrs. Catherine Casey was charged with having purloined Mrs. Judith O'Leary's wedding ring. The ladies are both natives of "the Emerald gem of the western world"--the green land of shamrocks and shilelaghs. They came to this country together in the days of their youth; they toiled together year after year in the sunny harvest fields; they got comfortable husbands to them; they grew old together; they ate, they drank, they smoked together; they were gossips--"sworn gossips and friends." "But what is friendship but a name!" saith the poet.--Let Mrs. Judith O'Leary tell her own tale. "Yer honour, this is Misthress Casey--the gossip she was to me many a long year in ould Ireland and since we comed to this; and much is it I made of her at all times, your honour--for we got our bits o' livings, and we ate, and slept, and we drink't together"-- "And got _drunk_ together," said his worship. "Faith did we, your honour--and wonst _too often_;" rejoined Mrs. Judith O'Leary, making an _illigant_ curt'sy. "T'other day, your honour, we were taking the drops at the Blue Pig, and talking of the ould consarns, and the talk came up, and the drops went down softly and swately--that's the throats of us, your honour; and by-and-by, says Misthress Casey to me, says she--'Misthress O'Leary,' says she to me, 'let's be home to our own place.'--'And so I will, Misthress Casey,' says I--'ounly we'll have t'other drop with the three halfpence that's left in the bottom of it,'--that's the pocket your honour. 'Gad's blood, we'll have t'other drop, gossip,' says I to her. And sure we had, and it was a drop too much for the head of me--it went round like the hind wheel of an _ackney_--rowling and rowling, your honour, and I rowl'd home mighty queer that day; and I laid meself down on my own bed; and the child I had be my own lawful husband, Tom Leary, laid be the side of me fast asleep--ounly sober as a judge was the child at that same time--why shouldn't it? And when I waked up, says I to me--'how comed I here,' says I, 'in my own bed,' says I, 'before dark?' says I to myself; but I couldn't tell, for the life of me, your honour, in regard of the gin--that's the _blue ruin_, as Misther Jenkins the pratur marchant calls it, your honour. 'Well,' says I to meself, 'sure I'll get up,' says I, 'for what's the use of lying here like a baste,' says I, 'when Tom Leary isn't in it, and is coming to it may be?' And I got up and shook meself, and got the water to wash my hands, and I looked at 'em--that's the fingers, but d--l a _ring_ was on 'em! '_Deevle_ burn ye, Kate Casey,' thinks I to myself, 'but ye've got the bit of gould from me at last!' and I went to her place--that's in Bainbridge-street, your honour; 'and Misthress Casey,' says I, 'where's me _ring_?' 'What ring?' says she.--'My wedding ring that I got with Tom Leary,' says I.--'_Deevle_ a know I know!' says she.--'Don't be tellin the lie to the face of me,' says I, 'for sure there's them that seen ye _slither_ it off the finger of me,' says I.--'Be the mother of Moses! it's a graat lie!' says she.--'Thank ye, Misthress Casey,' says I.--'Take _that_ for yerself, Mrs. O'Leary,' says she"-- "And what was _that_?" asked his worship. "Faith, a beautiful blow on the mouth of me!" your honour, replied Mrs. O'Leary--laying hold of her upper lip, and turning it inside out for his worship's inspection. But his worship declined inspecting it; and Mrs. O'Leary, having let her lip down again, proceeded to state that, having got this beautiful thump on the mouth of her, she did not choose to have any more to say to Mrs. Casey, but forthwith handed her over to an officer. The Officer in question said he had learned that Mrs. Casey pawned a wedding ring on the day of the row, but she redeemed it in a few hours afterwards, and that was all the pawnbroker knew about it. Whilst Mrs. O'Leary was telling her story, Mrs. Casey could hardly be restrained from opening upon her at almost every sentence. She seemed to be bursting with words; and, no doubt, it was a great relief to her when his worship at length gave her leave to speak by asking, "Where is this poor woman's ring?" "Honour bright! your worship," replied Mrs. Casey, in a voice as melodious as a cracked bagpipe--"Honour bright! your worship; _deevle's_ the bit I knows about it at all! Och! Mrs. O'Leary, but yer a bad one after all of it," &c. "You knows you'll say any thing but your prayers, Mrs. O'Leary, and meself never to find it out till this present time!--Your worship, she gived the ring to a _man she has_!" "Och! an is it the likes of _me_, with three childer and Tom Leary!" cried Mrs. O'Leary, lifting up her hands and eyes in astonishment at the scandal. Mrs. Casey persisted in her story, and at last the charge was dismissed for want of evidence.--In ten minutes after, they were seen together at "The Grapes," in Bow-street, taking their drops, as good friends as ever they were. FLAGELLATION _versus_ PHYSIC. W. C., Esq., a gentleman of family and fortune, was brought up in custody of an officer, charged with assaulting Mr. H., a highly respectable surgeon and apothecary, residing in the Strand. Either party was attended by a solicitor, and the following is a "succinct synopsis" of the affair. Mr. H. is an elderly personage, of very gentlemanly deportment, and Mr. C. is a tall, athletic gentleman, in the full bloom of five-and-twenty, or thereabout. Some three or four yeas ago, Mr. H. had the honour of curing Mr. C. of some indisposition--no matter what; but the _honour_ was all he had for his services; for though he sent in his bill, amounting only to 7_l._ 3_s._, Mr. C. neglected to discharge it. He, however, made _promises_ in plenty, time after time; and if Mr. H. could have fed upon this "_cameleon's_ dish," it would have been all very well, and this assault would never have happened. But he could not--he had no relish for it--he knew that nobody could "fatten capons so;" and therefore he determined to have something more substantial. In consequence of this determination, he lost no opportunity of dunning Mr. C. for the money; but unfortunately the opportunities were very rare, as Mr. C. was fond of variety, and had a knack of frequently, very frequently, changing his residence; so that Mr. H. never knew "where to have him." At length, on Wednesday morning last, he heard he was in town, and he instantly sent one of his young men to his lodgings, with an earnest demand of payment. The young man returned, saying Mr. C. was not risen, nor would he be up till after eleven o'clock. At eleven o'clock Mr. H. himself went out, with the intention of repeating the demand in person; and, on his way, he met Mr. C. in the Strand, who, on perceiving Mr. H., immediately crossed over to the opposite side of the street. Mr. H. crossed also, or, rather, like-wise--and so they met full butt, as it were; whereupon Mr. H., after the usual salutation of well-bred people, requested instant payment of his account. Mr. C. said it was not convenient to him to pay it at that moment. "Will you give me your word of honour that you will pay it in a week?" demanded Mr. H. "I tell you, Sir, it shall be paid in a few days," replied Mr. C. "Well, Sir, I'll tell you what--if it is not paid in the course of a week, I will put it into the hands of my solicitor!" rejoined Mr. H. "Sir!" retorted Mr. C., "if you say that again I will flog you round the place--I will flog you every time I meet you; and if it was not for the disagreeableness of raising a crowd around us, I would flog you now, Sir!" And, so saying, he held his stick over the head of Mr. H. in token thereof. This was the whole amount of the assault complained of--for it did not appear that he did flog, neither did it appear how Mr. H. "backed out of the concern." Mr. C. began his defence by observing that the account had not been standing more than _two_ years; whereas Mr. H. had called it _three_ or _four_ years. The account itself, he added, was a mere trumpery affair, not of the slightest consequence to him; in proof whereof he was ready to pay it that moment, before the magistrate-- "Oh! I shall take care to _make_ you pay it!" exclaimed the agitated Mr. H. SIR R. BIRNIE.--Had you not better receive the money now it is offered to you, Mr. H.?--You know the old adage says, "If you will not when you may," &c. Mr. H. thanked his worship for his suggestion, and said--to be sure--that was another affair--and if Mr. C. were actually to tender him the money--he did not know that he should, altogether, refuse it. Mr. C. instantly took out a handful of sovereigns, and tossed the amount of the claim down upon the table; and it as instantly slided into the right-hand breeches pocket of Mr. H. This interesting ceremony ended, Mr. C. resumed his defence. He denied that he had menaced Mr. H. in the violent manner he had described. It was true he had raised his stick for a moment, but it was only in consequence of Mr. H. exclaiming, loud enough to be heard by many people passing, "Oh! Sir--everybody knows what you are!" SIR R. BIRNIE said the affair hardly amounted to a breach of the peace, and unless Mr. H. could swear that he went in "bodily fear" of Mr. C., he certainly should not feel justified in holding the latter gentleman to bail. "_Bodily fear!_" cried Mr. H.--and snatching up his hat he left the office, uttering something which to us sounded very much like "_Fudge!_" TOM SAYERS. Tom Sayers, a fellow of lofty dimensions was brought up on an assault warrant, charged with having broken the nose of one Mr. Bybie Garmondsway, against the peace, &c. Tom Sayers is a man who, during the late Peninsular war, "sought the bubble reputation, e'en in the cannon's mouth," as a British grenadier. Whether he found it or not, we are unable to say; but certain it is that he now enjoys the reputation of being an admirable culinary bricklayer--a dexterous setter of kitchen ranges; and with this reputation he is fully satisfied--handling his trowel, and dandling his little ones, and cherishing his wife, and drinking his beer, in peace and thankfulness. Mr. Bybie Garmondsway, notwithstanding his uncommon name, is as common a looking concern as possible--a dirty little land-lubber in a seaman's dress, with a queer nose, queerly decorated on this occasion with divers broad straps of sticking-plaister--_à la Baron Munchausen_. "An please your worship," said Mr. Bybie Garmondsway, with his hat grasped in both hands, and giving the floor a long scrape with his off foot--"an please your worship, last Tuesday night, as ever was, I goz into the Crown, in Seven Diles, thinking of nothin at all." "Very likely,"--said his worship. "Thinking of nothin at all," continued Mr. Bybie Garmondsway, "an ax'd for a pint of porter; an there were this here gentleman, Mr. Sayers, singing a song; an, becoz I said the song was all _gammon_, he punch'd my head, as your worship may see by my nose, an the landlord chucked me out before I'd half drink'd my beer!--an that's the whole truth about it, as Mr. Sayers can't deny if he's a mind to speak." "I shall speak when his honour gives me orders," said tall Tom Sayers--drawing up himself to his full height, squaring his shoulders, turning out his toes, and placing his thumbs exactly in line with the seams of his dusty trousers--"I shall speak when his honour gives me orders." His honour told him he was ready to hear anything he might have to say. "Thank your honour," said honest Tom Sayers--with a hand-over-brow salute, and without losing the twentieth part of an inch in his altitude--"thank your honour! Your honour sees that I had been setting a stove grate and oven, for the landlord of the Crown here; with which setting he was pleased to say he was very well satisfied: and he asked me to take a pint of beer in token of the same. Just then, in comes my wife, with my child in her arms, to see whether I had done my job, and to walk home with me. I was pleased to see her, your honour--God bless her!--and I was pleased to see my child, and I was pleased that the landlord was pleased with my work; and so I took the child on my knee, and my wife and I sat down, side by side on the settle, to drink the pint of beer the landlord had given me. There he is! If I tell a lie, let him say so." His worship told him he believed every word he had said. "Why, thank your honour again, and I'll not disgrace your belief," rejoined the veteran grenadier. "As I was saying, your honour, I and my wife sat down kindly to drink the pint of beer--the beer the landlord gave me, your honour, because I had done my duty by his oven; and the child sat laughing on my knee, and an old comrade came in, and we drank together in memory of old times abroad, and in the pride of my heart--God forgive me!--I sung the '_Battle of Barossa Plains_.'--It was a battle I served in, your honour, to the best of my ability, and my comrade had served by the side of me; and we thought no harm or offence to anybody. But this _thing_ here--half sailor and half _scamp_ (meaning Mr. Bybie Garmondsway), he must begin _mocking_ me whilst I was singing, and insulting all land battles whatever. I asked him to be quiet, and he wouldn't; and after a bit the landlord marched him out, and told him to go home to his own quarters. Three times the landlord turned the envious lubber out, but he was no sooner out than he was in again, challenging me to fight. At last, your honour, I put down the child, and made a charge upon him, thinking to put him out in the street--for as to _fighting_ with such a thing! that's neither here nor there; but I no sooner got hold of him, than, like a false lubber as he is, he turned about and tried to--to do me a private injury, your honour!--and then, sure enough, I did let fly my fist at his face; and, I if have done wrong, I must answer for it." The landlord substantiated every part of honest Tom's story, and the magistrate instantly dismissed the complaint; at the same time telling Mr. Bybie Garmondsway that a civil tongue was the best preventive of a bruised nose. THE DUST WHOPPER AND THE WATERMAN. Mr. Daniel Butcher, "a jolly young waterman," was charged with assaulting Mr. Robert Wingrove, a carpet beater--commonly called "Bob Wingrove, the _dust-whopper_." Mr. Bob Wingrove deposed thus:--"Your worship, I beats carpets and does portering, by which means I was looking out of my window yesterday afternoon, when I saw a servant _gal_[23] go by, which belongs to a house what I beats for, by which means I runs down stairs to speak to her, and Dan Butcher, this here chap in the scarlet jacket, comes up to me, and without saying '_by_ your leave,' or '_with_ your leave,' he took me two smacks in the head, right and left." "Why did he strike you?" asked the magistrate. "Aye, that's what I wants to know, your worship!" replied Mr. Bob. "Then suppose you ask him now," rejoined his worship; "ask him, why he gave you the two smacks, as you call them." Mr. Bob, turned, and looked Mr. Dan in the face, as though about to put the question to him; but Mr. Dan smiled him out of countenance, and Mr. Bob, turning back to his worship, said--"It's no use axing him anything, your worship, for he's got a spite agen me ever since I was in prison for saying a few words to a servant _gal_ what brought me here on a peace warrant, by which means he never sees me but he peeps through his fingers at me, as much as to say, 'who peep'd through the prison bars?'--He's a great blackguard, though he's a little chap, your worship; and he never meets my wife, Mrs. Wingrove, but he cries--'Here's a charming young broom!' when my wife is _not a charming young broom_--as all her neighbours can testify, but as honest a woman as ever broke bread--only that, like all other women, your worship, she likes a drop of something comfortable now and then." Mr. Bob's landlady corroborated all his evidence general and particular, and her evidence closed the case for the prosecution. Mr. Dan Butcher, in his defence, admitted that he _took_ Mr. Bob Wingrove _two smacks in the head_, as that gentleman had deposed, but he assured his worship they were in return for a _punch in the stomach_ which Mr. Bob Wingrove had _lent_ him; and he called two witnesses to prove that Mr. Bob was the aggressor. Both these witnesses declared that Dan Butcher was walking quietly under Mr. Bob's window, singing a song, and "giving no offence to nobody," when Mr. Bob ran down stairs, and struck him in the bowels "without any _privy-cation_ whatsoever." "And pray what song was he singing?" asked his worship; "I have no doubt it was a song intended to insult him." "Your worship, I don't know what song it was," replied the first witness--"it was a funny sort of song enough, and there was a _tithery um_ at the end of it." The second witness, however, after much pressing, admitted that it was a song called "_Bob's in the watch-house_," and made by one of the Hungerford-stairs poets in commemoration of poor Mr. Bob's imprisonment. Mr. Dan could not deny that he sung this song vexatiously, and he was ordered to find bail--So, then, it was Mr. _Bob's_ turn to sing "_Dan's_ in the watch-house." A GROWN GENTLEMAN. A very precise, well-dressed young man presented himself before the magistrates, saying he had a very great desire to punish a Mr. Bradbury for _extortion_, _abuse_, and _assault_, and he would be particularly obliged to his worship if he would assist him in so doing. His worship desired him to describe the nature of his complaint more minutely; whereupon the gentleman went into a long and rather melancholy story, from which it appeared-- Firstly, that Mr. Bradbury lives in the Strand, and is famous for teaching _grown_ gentlemen to write a fine free hand in six lessons, for the trifling sum of one guinea, though they might previously be only capable of scrawling "pot-hooks and links."--Secondly, that the applicant being in this unfortunate predicament, applied to Mr. Bradbury for his assistance.--Thirdly, that Mr. Bradbury undertook to make him a ready writer for the sum of one guinea; and also to teach him how to make a pen, without any additional charge.--Fourthly, that he went through his six lessons in writing, when Mr. Bradbury demanded his guinea.--Fifthly, that he gave Mr. Bradbury a sovereign and a half-crown, desiring him to take his guinea therefrom.--Sixthly, that Mr. Bradbury, instead of returning him one shilling and sixpence, returned him a sixpence only, stating that he retained the extra shilling for stationery; this was the "_extortion_" he complained of.--Seventhly, that he remonstrated with Mr. Bradbury on this stationery charge; and moreover complained to him that he had not sufficiently instructed him in the art of making a good pen.--Eighthly, that Mr. Bradbury replied he should teach him no more, for he had not conducted himself like a _gentleman_.--Ninthly, that he told Mr. Bradbury he should summon him before the Lord Mayor.--Tenthly, that Mr. Bradbury replied, that he cared no more for the Lord Mayor or the Lord _Horse_ either, than he did for him. This was the "_abuse_" he complained of.--Eleventhly, that, on his attempting to remonstrate farther, Mr. Bradbury got up from his desk, clenched his fist, and told him if he did not walk off quietly, he would "_bundle_ him down stairs." This was the "_assault_" he complained of; and having stated all this, he respectfully submitted that he had made out his case. "And pray, Sir," asked the magistrate, "did he, in effect, '_bundle_' you down stairs?" "No, Sir," replied the gentleman, "but I think he would if I had not walked away very rapidly." "Then, Sir, I am sorry I cannot accommodate you by interfering," rejoined his worship;--"if you had undergone the _bundling_ operation, something might have been done, perhaps; but as it is, I don't see that you have any redress for your manifold grievances, except you sue him in the Court of Conscience for the recovery of the _shilling's-worth_ of stationery; and the issue of that measure would, in my opinion, be very doubtful." The gentleman looked at his worship, then at his own hat, then at his worship again, and then he slowly withdrew; seemingly quite at a loss what to make of the matter. DRURY-LANE MISSES. Mrs. Margaret Bunce, a lean, dirty, slatternly matron, apparently between fifty and sixty years old, complained that she had been grossly assaulted by Miss Eliza Pritchard and Miss Hannah Maria Bagwell--a pair of little stunted damsels from the back settlements of Drury-lane; who, according to their own account, maintain themselves "very _cumfuttably_ by going a _charrin_." "Please your worship," said Mrs. Bunce, "I lives in Short's Gardens, and these ladies lives in Charles-street, and I can get no comfort for 'em night nor day. They'm always at me for everlasting, go out when I will; and yesterday _arter_noon they pounced upon me as I was standing in _Doory_-lane, and give me this here black eye; and my nose has been as yellow as a _marygoold_ ever since, as your worship may see." "Have you any witness?" asked the magistrate. "Yes, your worship--I was standing talking to this 'ere _lady_ at the very time," replied Mrs. Bunce, pointing to a meagre young woman in a ragged hurden apron, a worn-out man's coat, and an old muddy hat, something in the form of a barber's basin. "I was talking to this 'ere lady at the very time." The _lady_ came forward, dabbed a court'sy, and wiped her face with the corner of her apron. "Oh! _this_ lady," said his worship; "and what may _your_ name be, Miss?"--"Julia Legge, your worship."--"And pray may I ask what occupation you follow--Miss Julia Legge?" "I sells _vauter creeses_ and _sweeps crossings_, your worship," replied the gentle Julia; and then she wiped her weather-beaten charms again, and substantiated every word Mrs. Margaret Bunce had uttered. "_Miss_ Eliza Pritchard and _Miss_ Hannah Maria Bagwell, what have you to say for yourselves?" asked the magistrate. They answered--"in a joint and corporate voice," "Vy, your Vorship, ve've this 'ere to say--as ve never did _nuthin_ o' the sort; and that there lady (Miss Julia Legge) vasn't there at the time." Mrs. Bunce and the gentle Julia hearing this, lifted up their eyes and hands in astonishment, and opened a fresh volley of evidence, which concluded with a declaration from Mrs. Bunce, that she never went to see her own mother that they did not lie in wait for and attack her. "Your _mother_!" said the magistrate, "why how old are _you_?" "_Me_, your worship--why I'm turned of forty." "And pray how old may your mother be?" "Why, your worship," replied Mrs. Bunce, doubtingly, "I reckon she must be _fifty_--or thereabouts!" There was a general and very ungallant burst of laughter at the broad guess; and poor Mrs. Bunce seemed a good deal confused; but at length the gentle Julia took upon her fair self to say that Mrs. Bunce's mother was _seventy-eight_, to her own certain knowledge. At last it was ordered that the young ladies, Miss Eliza Pritchard and Miss Hannah Maria Bagwell, should find bail to keep the peace towards Mrs. Margaret Bunce; and not being prepared with any, they followed the turnkey to his stronghold, weeping as they went. A SMALL TASTE OF JIMAKEY. A new-booted, yellow-vested, blue-coated, red-headed, rosy-faced, buckish young bricklayer, was brought up from the neighbourhood of Cranford-bridge, charged by one _Tom Nagle_ with having robbed him, on the King's highway, of ten shillings in money, and one bottle of "the best _Jimakey_ rum." Tom Nagle is an honest, hard-faced, sandy-whiskered Emeralder, who takes out a drop of the rum or the whiskey, now and then, into the country, to make an honest penny of that same. "It so happened that, one Tuesday night, he went into the Queen's Head, at Cranford, with a bottle of the best _Jimakey_ rum in his little basket. There was a lovely sweet fire in the chimney, and the buckish young bricklayer was there sitting before it, with a face like a full moon at the rising, and a yard-and-a-half _backey_-pipe sticking out of the middle of it. And there was the parish-clerk, and the blacksmith of Cranford, and many other jontlemen _blowing_ their _steamers_, and taking their drops mighty convanient at that same time. So Tom Nagle sat down amongst them, and _took his drops_ 'mighty convanient' too. He drained off one pot of _heavy wet_,[24] and then another, and another, and he blew a bigger cloud than any of them; and at the last, he introduced his bottle of _Jimakey_, in the hope that some of the jontlemen would _dale_ with him--but they wouldn't. They only bother'd him--bad luck to 'em, and wouldn't dale with him at all; so he put out his pipe, and departed. Then, as he was walking away from fore-anent the door of the place, the buckish young bricklayer comes out after him, and says he, 'Hallo! Tom Nagle,' says he, 'what shall I give you for the rum?'--that's the _Jimakey_ he was axing about. 'Four and sixpence,' says Tom Nagle, says he, 'and ye shall have the corck and the bottle into it,' says he.--'No,' says the bricklayer 'I sha'n't give thee four and sixpence, but I'll give ye just a shilling for a small _taaste_ of it.'--'No,' says Tom Nagle, 'get along wid ye,' says he--'fait ye sha'n't have any _taaste_ of it at all,' says he. Then the buckish young bricklayer, bad luck to him! took the bottle from Tom Nagle by force, and took a taste of it, just in no time to spake of, and slithered his fist into Tom Nagle's breeches pocket, and pulled out ten shillings from the bottom of it; and split back again along the road--with the shillings in one hand, and the bottle of _Jimakey_ in the other, and Tom Nagle went to look for a constable. In reply to all this it was stated, by the buckish young bricklayer, and the parish clerk, and two other witnesses, that Tom Nagle was neither more nor less than a bit of a smuggler, and a great pest to all the country round about Cranford for many miles; that on the night in question he was very much the worse for the beer, and that the company at the Queen's Head did certainly joke him about his spirituous calling; that he was very angry in consequence; that he went out of the house in a passion; that the bricklayer followed him, and having given him a shilling for a taste of his rum, he took the bottle from him--telling him, "in a lark," that he would inform against him, for selling spirits without a license. It was further stated, that the bottle was carried back to the Queen's Head, and safely deposited with the landlord, to be re-delivered to Tom Nagle, when he should call for it; and as to the ten-shilling story, it was declared by everybody to be a great fib--a pure invention of Tom Nagle's, and intended by the said Tom as a set-off against the threat of information for selling contraband spirits. The magistrate asked Tom Nagle--"Is it true that you were drunk at the time?" "Yer honour," replied Tom Nagle, "I was _hearty_--but not _drunk_ by no manes--bekase I'd only _three pots_ of the beer, and a small drop of the gin." "Could you walk steadily?" asked his worship. "Is it _that time_, your honour?" said Tom Nagle: "Fait, then, I could walk as well as I can now--and _better_." His worship observed that, however disreputable and illegal Tom Nagle's occupation might be, the bricklayer had done wrong in taking his property from him, and he should therefore take care that he was forthcoming at the Sessions, where Tom Nagle might indict him if he thought proper. Tom Nagle thanked his worship, and the buckish young bricklayer was held to bail. A WHITE SERGEANT, OR PETTICOAT GOVERNMENT. Among the "_disorderlies_" brought before the magistrate from St. Clement's watch-house, was a Mr. H., a very respectable law-stationer. Robert Hunt, a watchman, deposed, that between twelve and one o'clock in the middle of the night, he heard a lady's voice crying "Watch! Watch!--Stop him, Watch!" whereupon he turned himself round about, and seeing the prisoner, Mr. H., running with all his might, he as in duty bound, stopped him full butt, and "civilly seizing him by the collar," told him he must wait a-bit, till "the lady what _skreeked_ should come up." But Mr. H., instead of waiting quietly, as a gentleman ought to do, slipped himself out of his coat, "_momently_ as it were," showed fight, and gave him two or three desperate "punches on the belly" before he knew where he was. This being the case, he "twirled his _rackler_," and other watchmen coming up, Mr. H. was conveyed to the watch-house. [Illustration: PETTICOAT GOVERNMENT.] Mr. H., in his defence, gave rather a different account of the matter. It appeared by his statement that, having occasion to call upon a friend late on Saturday night, he found that friend was gone to a neighbouring tavern, and, without thinking any harm, he followed him thither, and having found him, they sat down to take a friendly glass together; but they had scarcely got through the first glass of cold brandy-and-water, with-a-little-sugar-in-it, when, who should come in but his wife, Mrs. H----y! Now, such a visit, at such an hour, and in such a place, he humbly submitted to the magistrate, was confoundedly annoying. He told Mrs. H. that it was extremely indelicate, and desired that she would return home forthwith, and he would follow her in a few minutes. But no--before all the company she peremptorily refused to stir an inch without him! What was to be done? If he departed with her, every body would laugh at him; and if he remained, she would remain also; thereby making the thing still more ridiculous. In this dilemma he consulted with his friend; his friend advised him to go, his own feelings prompted him to stay; but, as matters were getting worse and worse every minute, he resolved to go--and go he did. In order, however, to show Mrs. H. that he would not quietly succumb to petticoat government, exercised in this vexatious manner, he no sooner got into the street, than he took to his heels and ran away--determined in his own mind not to go home for an hour or two. But here again Mrs. H. got the better of him; for he no sooner began to run, than she began to bawl "Stop him, watch! stop him!" and the watch did stop him--not as the said watch had deposed, by "_civilly_ collaring him," but by grasping him by the cravat, and _sticking_ his knuckles against his throat till he was nearly strangled; and he was verily of opinion that he should literally have died of the said strangulation if some persons had not providentially come to his assistance, and forced the watchman to take his hand from his throat. With respect to the "dreadful _punches_" complained of, he positively denied having inflicted them. Mrs. H., and another lady or two, who, it seems, accompanied her in her tavern expedition, fully substantiated this statement in all its interesting particulars. On the other hand, the watchman called four of his brethren, who all offered to swear that Mr. H. struck him repeatedly. The magistrate was of opinion that the watchman had done his duty well, and called upon Mr. H. to find bail to answer for the assault at the Sessions, unless he could satisfy the watchman for his trouble. Mr. H. said he had no money to bestow on any such purpose; and, feeling himself the aggrieved party, he had rather go before a jury; so he retired in the custody of the turnkey. THE COOK AND THE TAILOR. This was a matter of assault and battery, originating in roast lamb and cauliflower, carried on by means of a misfitting toilinet waistcoat, and ending in battle and bloodshed. [Illustration: PETTICOAT GOVERNMENT.] Mr. Ellerbach, the defendant, a tailor (by _trade_), small in person and fashionably attired, with his dexter arm gracefully suspended in a black silk sling, was brought up by the nocturnals of St. Martin's watch-house, and placed before the bench. Whereupon Mr. Arundel, the complainant, "a good portly man, and corpulent; of a cheerful look, a pleasing eye, and a most noble carriage," being first duly sworn, deposed, that he was the proprietor of an eating house (commonly called a _slap-bang_ shop); and that the defendant, Mr. Ellerbach, being indebted to him for sundry plates of roast lamb and cauliflower, he, the complainant, expressed a strong desire to have the said plates of roast lamb and cauliflower paid for without delay; inasmuch as he was fully aware that when a good dinner had answered the purpose for which it was taken, it was speedily forgotten, especially when taken on _tick_. He, therefore, as aforesaid, expressed a strong desire to be paid; which so incensed Mr. Ellerbach, that he came into his shop, as he, the complainant, was standing in the midst of his men, and, after having kicked up a great dust, threatened to beat the whole lot. Complainant having no inclination to be beaten, ordered him to depart in peace, and pay for the lamb and cauliflower when convenient. But the defendant's voice was still for war; he d----d the lamb and cauliflower, "vain-gloriously;" and when one of complainant's cooks went towards him, with the kind intention of pursuading him to be quiet, he took up his fist and struck the unoffending cook right on the mouth. The blood gushed forth in a torrent; and, whilst poor _cookey_ was looking for his teeth, complainant called in the watch, and defendant was conveyed to durance. Mr. Ellerbach entered upon his reply in a mild tone of impassioned eloquence; he admitted having eaten the lamb and cauliflower, and also that he took it on _tick_--not because he lacked the means of paying for it, even to the uttermost farthing;--but because he had a counter-claim upon the complainant for making him a toilinet waistcoat, which he, the complainant, alleged was a _misfit_, and therefore disputed the payment. Things were in this state, when he, the defendant, sent to complainant's shop for some cold roast beef and pickled cabbage, intending to eat it for his supper, and, to his immense amazement, the messenger returned, stating that complainant not only refused to send it, but had actually threatened to make pickled _cabbage_ of him (the defendant), unless he immediately paid for the lamb and cauliflower. This allusion to _cabbage_ he very naturally took as a reflection--a vulgar reflection upon his profession as a _tailor_, and he, therefore, went to his shop in person, to know what he meant by _pickling_ him. But he had scarcely entered the doors, when he found complainant and his surbordinate cooks all up in arms against him. Complainant called him a scoundrel, and ordered him to depart, without giving him time to demand the explanation he came for; and whilst he was endeavouring to obtain a hearing, one of the cooks made "a contemptuous and rather indecent sort of noise with his mouth;" which so exasperated him, that he certainly did strike the offending cook upon the offending organ; and in so doing he thought himself fully justified. In conclusion, he said, though the cook might have lost a little blood by the blow, and even, perhaps, an odd tooth or so, yet he, himself, at the same time knocked the skin off his own knuckles against cookey's teeth, and strained his thumb so, that he was obliged to carry it in a sling; and therefore he submitted that the assault account ought to be considered as balanced. The magistrate, however, was of a different opinion, and ordered him to find bail for his appearance to answer it at the sessions. Thus, though the cook failed to _pickle_ the tailor, the tailor contrived to place himself in pickle--and in such a pickle as probably _cured_ him of his pugnacious propensities. THE TWO AUTHORS. A man of six feet in height, of seedy exterior, and most melancholious physiognomy--principal contributor of bawdry and balderdash to the "Rambler's Magazine;" sixpence-a-sheet translator of the "Adventures of Chevalier Faublas," _et cetera, et cetera, et cetera_--was brought up in custody, to show cause why he should not be prosecuted for obtaining money under false pretences from one Mr. Robert Wedderburn--tailor and breeches-maker, field-preacher, radical reformer, romance-writer, circulatory-librarian, and ambulatory dealer in drugs, deism, and demoralisation in general. Mr. Robert Wedderburn--or Robertus Wedderburn, as he delighteth to designate himself, is a man of colour--something of the colour of a toad's back, plump and puffy as a porpoise, and the magnitude of his caput makes it manifest that nature cut him out for a counsellor, had not the destinies decreed that he should cut out cloth. He therefore became a tailor and flourished (his shears), but age and fatty infirmity at length unfitted him for the operative department of his profession; his back would no longer bend to the board; his legs refused to let him cross them as he was wont to do; his eyes declined seeing a needle unless it was close to his nose; and though he got spectacles of all sorts, and let go his braces to their utmost limits, he could not manage it any how; and so, since he could no longer sew, he joined the _radicals_ of the day, and, from mending breeches, took to mending the state. His doings in this way made some noise in the world. He it was who had the honour of first inoculating the invincible Carlile with pure Deism; he it was who suffered pains, penalties, prosecutions, and imprisonments for his too liberal promulgation of too liberal politico-theological preachings; and he it will be that will have a place in the list of patriot martyrs of the nineteenth century--if a list of them should ever be published. _Shelved_, with the rest of the radicals, he turned his thoughts to literature; literature brought him acquainted with the prisoner; his acquaintance with the prisoner brought the prisoner to the bar of this office; and that brings us to the immediate matter at issue. It appeared by the evidence, that Mr. Robertus Wedderburn--being a man, as he himself said, "fruitful in imagination, but no great scholar," was in the habit of cutting out pretty little sixpenny romances, and employing the prisoner to touch them up grammatically. This caused a kind of literary intercourse between them; and at one of their interviews lately--on the subject of a new romance, to be called "Beatrice, or the Bleeding Beauty," the prisoner tendered a pawnbroker's ticket to Mr. Robertus Wedderburn, requesting him to buy it. This ticket purported to be a pledging of thirteen volumes of new novels for the trifling sum of ten shillings, and Mr. Robertus Wedderburn willingly undertook to purchase it for three shillings--wisely considering that these thirteen volumes would be a handsome addition to his little circulating library, and that at a shilling a-piece they were certainly "dog cheap." He therefore paid the prisoner the three shillings; and as soon as he could raise the money, he went to the pawnbroker's to redeem the books; when, to his utter astonishment, he found instead of _thirteen_ there were only _three_!--that the prisoner had taken the liberty of placing a 1 before the 3 on the ticket, thereby converting 3 into 13; that the three books were thus pledged for their full value; and that Mr. Robertus Wedderburn was of course bamboozled of his blunt--in the vulgar, "cheated of his money." The magistrate, having listened with great patience to the premises, asked the prisoner what he had to say for himself; and, as he only played with his hat-band in reply, he was remanded until the evening, in order that the pawnbroker might attend. In the evening he was again placed at the bar; but there was no pawnbroker in attendance; and Mr. Wedderburn begged leave to withdraw the prosecution--he having been satisfied by the bounty of the prisoner's patron. The magistrate then commented severely on the conduct of all the parties, and reluctantly consented to the prisoner's discharge. A BOLD STROKE FOR A SUPPER. A pair of showy young men, _exquisitely_ attired, with their exquisite attire cased in street mud, and their crops _à-la-Titus_ filled with bits of straw, were brought up from one of the lower apartments (commonly called the _Black "hole"_) in Covent-garden watch-house; where they had passed the night in doleful durance, merely because their appetites were in better order than their finances--or, in plain terms, because they had eaten more supper than they could pay for. They gave their names _John Bright_ and _Henry Walsh_, gents.--the former of Queen's-square, and the latter of----"nowhere in particular." The following is the story of the little adventure which brought them under the _surveillance_ of the police. On Sunday night these gallants went into the Imperial Hotel, Piazza, Covent-garden, and asked if "Mr. Kecksy" was there. They were told that he was not; at which they expressed much surprise. They then ordered a "rite jollie supper;" and when it was ready they ate it up, washing it down with three bottles of prime old port. Nevertheless, they frequently cast an anxious eye towards the door, and talked from time to time of the unaccountable absence of "Mr. Kecksy." At length they became what is classically called "_Bacchi plenus_," and the landlord thought it was then time to send up the bill. He sent it up accordingly; but they tossed it in the waiter's face, and ordered him to send up the landlord, Mr. Joy. Mr. Joy obeyed their summons, and demanded to know their pleasure. "Joy, my hearty! you must put up _this_ to Kecksy.--He invited us, and by G--d he shall pay," was the jovial reply. "Upon my word, gentlemen, this is too bad--Mr. Kecksy has not been here these many weeks; you are utter strangers to me, and I cannot think of letting you go without paying," replied Mr. Joy. "You can't!--then I'll tell you what, my old boy, we shall _tip you the double_ and _bolt_, by all that's comical!" retorted one of the bucks. This kind of phraseology put their gentility quite out of the question with Mr. Joy, and without further ceremony he ordered one of his waiters to call in a watchman. This was a measure the supper-eaters had not calculated upon, and they became indignantly anxious to put their threat of "tipping him the double" into immediate practice; but Mr. Joy and his waiters opposed their retreat; upon which they threatened to kick Mr. Joy downstairs, and throw his waiters out of the window; and they had actually commenced proceedings in this way when the watchman made his appearance and took them in charge. They now moderated their choler a little, and proposed that somebody should accompany them home, where they would pay the bill. This was acceded to on the part of Mr. Joy, and an extra watchman agreed to accompany them, with one of the waiters, for that purpose. But they had scarcely left the hotel before they suddenly _bolted_ in different directions, and would inevitably have _tipped_ their pursuers _the double_ at last, had it not been for the rattles of the watchmen. As it was, one of them was caught as he was scampering up Bow-street, and the other was found ingloriously concealed among the sheds in the market. Farther parley was not attempted on either side. They were forthwith conveyed to the watch-house, and there they conducted themselves so "_obstropolously_," that the constable of the night found it necessary to have them put down below, "instead of letting them sit by the fire like _gentlemen_." This was the substance of the evidence for the prosecution, and the muddy _watch_-worn defendants were asked by the magistrates what they had to say to it. They replied that they were actually invited to supper at that hotel, by their friend Mr. Kecksy, who was very well known to the landlord, and they fully expected he would have come in during the supper, or otherwise they would not have ordered the supper. They had, however, offered the landlord their address, and had assured him he should be paid in the morning. "Then pay it now"--said the magistrate--"the morning is arrived!" The defendants looked blank--and did not offer to pay. Mr. Joy observed, that their story about Mr. Kecksy was a mere absurdity, as that gentleman was _out of town_. "He is not out of town," said one of the supper-eaters, "for I saw him yesterday afternoon." "The fact is, your worship, he is in the King's Bench prison," said Mr. Joy. "That is false, Sir!--He is not," exclaimed the supper-eater. "Where is he, then?" said his worship. "Why, Sir, he is--in the _Rules_!" replied the supper eater. Every soul in the office laughed at this nice distinction; and the magistrate cut the matter short by telling Mr. Joy he could not detain the gentlemen for the amount of their _supper_, as it was a simple contract debt; but he could hold them to bail for the _assault_. They were accordingly ordered to find bail, and not being prepared with any, they were consigned to the attentions of the turnkey, without any order for their breakfast. CUPBOARD LOVE. Mr. George Pendergast, the principal of a _flue-feaking_ establishment--or, in ordinary phrase, a master chimney-sweeper appeared upon a peace warrant issued at the instance of Mr. Christopher Williamson, a painter--not of pictures, but posts and penthouses. Mr. Christopher Williamson deposed, that on a certain day named, Mr. Pendergast came into his apartments while he and Mrs. Williamson were quietly taking their tea and crumpets, and without any notice whatever, knocked him off of his chair what he was sitting on; and upon his telling Mr. Pendergast he thought such conduct very _ungenteel_, Mr. Pendergast told him to make himself easy, for he would "come it again" as often as he thought proper; from all which, he verily believed that Mr. Pendergast intended to do him some grievous bodily harm, and therefore he prayed the interposition of the law. Mr. Pendergast, who stood before the bench all soot without, and all gin and jollity within, very readily admitted the assault--adding, "I think, your worship, it was time to give him a bit of a floorer when I found my own wife in his _cupboard_!" His worship said if that was the facts it certainly had a rather awkward appearance; but Mr. Williamson assured him Mrs. Pendergast only ran into the cupboard to avoid her husband's violence--"And upon my honour, your worship," said he, "there wasn't a morsel of _Crim. Con._, or anything of that 'ere sort, in the business at all." Mr. Pendergast admitted that he was not much afraid of Mr. Williamson "in the _Crim. Con._ line;" and then went on to detail some other provocations he had received from him: particularly upon one occasion, when Mr. Williamson persuaded him to take a ride on the Thames with him, and because he refused to lend him 10_l._, chucked him overboard right into the river! Mr. Williamson denied this, and said Mr. Pendergast went overboard by accident, being rather top-heavy-ish. Mr. Pendergast was bound, in his own recognizance of 20_l._, to keep the peace towards all the King's subjects generally, and particularly so towards Mr. Christopher Williamson. LOVE IN CHANCERY. About the middle of the year 1821, Horatio, a young apothecary, of a certain city in the West, fell desperately in love with Drusilla, a wealthy damsel of that city; and the damsel returned his passion, though her father forbade her so to do. Then her father, in his anger, had her made a ward in Chancery, and the Lord Chancellor issued an injunction prohibiting Horatio and Drusilla from becoming man and wife. Fathers, and Lord Chancellors, have cruel hearts! and these youthful lovers--instigated, no doubt, by that "giant dwarf, _Dan Cupid_," and, moreover, not having the fear of the _Fleet_ before their eyes--eloped from their native city, with the intention of uniting themselves in defiance of the solemn injunction above-mentioned. Now it appears that they contrived to elude the pursuit that was made after them by the father of Miss Drusilla; and also by the officers of the court, who were anxious to serve the enamoured Horatio with a copy of the Lord Chancellor's injunction. In this predicament application was made to Bishop--"_Indefatigable_ Bishop," as he is sometimes called--one of the principal Bow-street officers, and he soon discovered their retreat. He found them, by some means or other best known to himself, in _Myrtle_-place, or Myrtle-grove, Hoxton. Perhaps it was the name of the place that led him thither; for where could a pair of lovers take refuge more appropriately than in a _myrtle-grove_?-- And "alas! that an _officer's_ cruel eye Should e'er go thither Such sweets to wither!" --But so it was, he did go, and of course he spoiled every thing--indeed, it would seem that he had no sooner made his appearance at the front door of the house, than "_love_ flew out at the window"--the _lady's_ love at least. It was just about dusk, in the evening, when Bishop, armed with full powers for the capture of the lady's person, proceeded in a hackney-coach to the Myrtle Grove above mentioned, and alighting at a short distance from the house in which he believed the lovers were concealed, he left his coach in waiting, and walked in silence towards the house. Not the slightest sound was heard from within, but he had no sooner lifted the knocker, than the door was opened by a young lady fully equipped for travelling--it was the fair fugitive, Drusilla herself! She was surrounded by trunks and band-boxes, and bundles; and, as it afterwards appeared, she was at that very moment waiting the return of her beloved Horatio, who was gone to call a coach to convey them to some other place of refuge. "Your name, I believe Miss, is _Drusilla_ ----, and you are lately arrived from ---- ?" said Bishop, with his accustomed courtesy. "O dear, no, Sir!" exclaimed the lady. "I am Miss Jenkinsop, the daughter of the mistress of this house." Bishop remarked that he had no doubt she was telling a _fib_, and desired her to introduce him forthwith to her alleged mama. No; she could not do this, as she was just going out; but if he would walk into the parlour, her mama would come to him presently. Bishop was not to be _had_ in this way; and so, taking the young lady by the hand, he led her into the parlour, and, having rang the bell, the mistress of the house shortly appeared, who disclaimed all relationship to the young lady, and declared she knew no more of her than that she was the "strange young lady" who came to her house with a "strange young gentleman" a day or two ago, and hired her apartments for a week. The cruel officer now told Drusilla his business, and she wept--for at least a minute and a half; but she no longer denied that she was the identical Drusilla who ran away from ---- with Horatio; and wiping away her tears, she put her hankerchief in her _reticule_, declared she was glad she was caught, and should be very happy to return to her friends, if she was but "sure the _Lord Chancellor_ would do nothing to her." Bishop told her he had no doubt she would be very kindly received, both by the Lord Chancellor and her father; and offering her his hand, she tripped lightly to the coach he had there in waiting for her. The luggage was then put into the coach, and it was just about to drive off, when another coach drove up, and out jumped Horatio. "Oh! Sir," exclaimed the landlady, who was still standing at the door--"Oh! Sir, they have taken away the lady!" "_Who!_--who has taken her?" demanded the astonished lover. "Why _I_ have," replied Bishop, ordering the coachman to drive on;--crack went the whip, and away went the horses with the coach behind them:-- "But who can paint Horatio as he stood, Speechless and fix'd in all the death of woe!" --He did not stand many seconds, however, but ran after the coach like a greyhound, jumped up behind it, and peeping in at the window called mournfully upon Drusilla. "Drusilla, my angel! where are you going?" His angel sat snugly in the corner of the carriage, and made no reply; but Bishop, looking out at the opposite window, said, "Come, come, young chap, don't be rude; or I shall be under the necessity of taking _you_ somewhere--get down from the coach instantly, or I'll take you into custody." Horatio took the hint and jumped down; but, like a true knight, he continued to follow, even on foot, panting and puffing, till the coach stopped in Bow-street; and then his _Drusilla_ having been deposited in a place of safety, without seeing him--for he could not, with all his fervour, keep up with the coach--he attempted a parley with Bishop, about _his share of the luggage_, which had been carried off with the lady. Bishop told him if he would call at the Public Office in Bow-street next morning, he should have "what _belonged_ to him;" and with this promise he departed apparently pretty comfortable. Bishop is a shrewd sort of a subject--his object, in getting Horatio to call at the office, was to give the Chancery Solicitors an opportunity of serving him with a copy of the injunction; and he completely succeeded, for Horatio was punctual in calling for "his share of the _luggage_." He was shown into a private room; where, neither the copy of the injunction nor "his share of the luggage" being ready, he amused himself with a volume of "Coke upon Lyttleton"--instead of pacing the room with his arms folded across his breast to keep his heart down. Indeed it was very evident that he considered himself pretty comfortable under the circumstances. By-the-bye, notwithstanding the desperate adventure he had undertaken, he seemed of a very cool, phlegmatic temperament; and how Drusilla could have fallen so deeply in love with him we cannot imagine; for, though he was nearly six feet high, and had a pleasing obliquity of vision, his nose was embossed with very angry-looking pustules, and his person was spare and uncouth.--But--_de gustibus non est disputandum_. A length, after he had pored over "Coke upon Lyttleton," and "the Statutes at Large," for about an hour and a half, the Chancery Solicitor arrived and served him with a copy of the injunction; and, had it been a tavern bill of fare, he could not have taken it more comfortably. He opened it; turned it about in different directions; looked at it both on the outside and the inside, played leisurely with the red tape that bound it, and then--thrust it into his coat pocket. "I have sent for your proportion of the luggage, Sir, and it will be here directly," said Bishop. Horatio gave a nod, as much as to say "thank ye," and then he looked out at the weather. In a minute or two his share of the "_luggage_" arrived. It consisted of a little band-box, and some unwashed shirts and cravats tied up in an old silk handkerchief. Horatio opened the hand-box. There was a well-worn hat in it, two pairs of cotton stockings, and three pairs of gloves--that, somehow or other, had lost the ends of the fingers; and there was, moreover, a very nice pair of yellow morocco slippers, nearly new. Horatio turned over these things some time, seemingly in a sort of brown study; and at last, he remarked that there was a piece of Irish cloth which he did not see amongst them. Bishop said he understood the Irish cloth belonged to the lady. "No, Sir," said Horatio, "it belongs to me. It was to make me some shirts. But it is of no _great_ consequence--let her keep it!" As he said this, he sighed a little; and Bishop--willing to console him for the loss of his love as much as possible--sent for the piece of Irish cloth and delivered it to him. Horatio tied it up in his bundle; put the bundle under his arm; and, balancing the band-box on the palm of his hand, he stalked forth into the street, with the Lord Chancellor's injunction sticking out of his hinder pocket like the handle of a stewpan. Unfortunately for the picturesque, however, as he was crossing the street, the wind, which was then rather high, blew the band-box from his hand. Horatio attempted to catch it before it fell to the ground; but, instead of doing so he struck it--up it went in the air, off flew the lid, and the old hat, the stockings, the fingerless gloves, and the yellow morocco slippers, were scattered on the muddy pavement. Horatio--the luckless Horatio--gathered them up as quickly as the wind, and the carts, and the coaches would permit; but, whilst he was busied in getting them together, the _injunction_ dropped from his pocket. At last he managed to cram them, injunction and all, into the band-box; and, calling a coach, he set off for the White Horse Cellar, with the intention, no doubt, of returning to the culling of simples at home--for he was manifestly a young man who, like his namesake in the play, could take Fortune's _buffets_ as thankfully as her _rewards_. The lady, in the course of the day, was delivered to her friends in town; and thus ended the loves of Horatio and Drusilla. KITTY KAVANAGH. There was a pretty, though homely Irish girl, named _Kitty Kavanagh_, brought before the magistrate on a charge of having stolen a small piece of coarse calico from a Mrs. Dermody. Kitty Kavanagh is the daughter of a watchman; and she and her father lodge in the same house as Mrs. Dermody. The piece of calico formed "the _canopy_" of Mrs. Dermody's tester bed. One day lately, Mrs. Dermody missed the canopy--it was taken away even whilst Mr. Dermody was in the bed; and, in a day or two after, she found it on Kitty Kavanagh, in the shape of an apron! Mrs. Dermody displayed this apron before his worship, and told him she could swear to the hemming of it--"because it was very _confident_ to be seen by any one." Mr. Dermody offered his evidence; and, being sworn, he said, "Your _wortchip_, it's true, every word of it, what Mrs. Dermody was after telling you, for myself was fast asleep in the bed at that same time." His worship now asked Kitty Kavanagh what she had to say to it; and she replied, in the richest brogue that ever rolled through the red lips of an Irishwoman--"It's herself and her husband comed home _bastely_ drunk, your honour; and her husband _bate_ her, and _kilt_ her your honour; and your honour sees Mrs. Dermody could not get to the bed by herself any how, _bekase_ of the liquor that night, your honour; and Mr. Dermody lay down in the bed by himself, your honour's honour, and Mrs. Dermody lay down in the coort." "But what has all this to do with the stolen linen?" asked his worship; "what have you to say about the piece of linen?" "Is it the bit o' linen your honour's _spaking_ about?" asked Kitty, with infinite _naïveté_--"Och! I found that same at the stair-foot when all the bother was over!" His worship shook his head, as much as to say he feared Kitty was adding falsehood to theft. Her father, the watchman, presented himself; and having expatiated upon the excellent _carackter_ himself and his daughter had hitherto borne in the world he next attacked the reputation of the Dermodys; which he said was all that was "bad and _bastely_;" and then he called two witnesses, who would tell his honour "all the rights of it." His witnesses came forward; they were Patrick Doole and Michael Sullivan. But all that _Misther_ Doole could prove was the drunkenness of the Dermodys on the day of the robbery; and Mr. Sullivan had nothing to say to it at all, only that Kitty Kavanagh was a nice young _cratur_, and her father was just like her for all the world. This was of course all nothing in the face of the fact so distinctly sworn to, and the prisoner was committed for trial.--So the interesting Kitty Kavanagh was sent to gaol, and perhaps lost her character for ever, for a bit of old calico, not worth sixpence. FRENCH AND ENGLISH MIXTURE. Mons. Gaspard Jacques Hercule Flament, a French gentleman with one eye--"_dégraisseur extraordinaire_ to the British public;" was brought before the magistrate to show cause why he should not be committed to prison for neglecting to maintain his wife in that style of elegance and comfort to which she was entitled--or rather, for neglecting her maintenance altogether. The lady, Mrs. Flament, was a pretty, little, black-eyed, sprightly Englishwoman; who, "by some odd whim or other," as she said, fell in love with, and married Mr. Flament, about six years ago. But they never could agree very well; and after five years of connubial misery, they determined to separate--Mr. Flament undertaking to allow her a separate maintenance of ten shillings a-week; with which she was very well content, as she had "a good comfortable mother to fly to." Mr. Flament, however, was not a man of his word; for, though he paid the ten shillings a-week pretty regularly at the outset of their separation, he afterwards reduced it to seven, and latterly to three. This, she humbly submitted to the magistrate, was an income upon which no lady could exist; and, as Mr. Flament was the very best _scourer_ at that moment out of Paris, she did hope his worship would compel him to make her a more suitable allowance. Mr. Flament could speak no English, and so he was attended by a "professor of languages" in a military cloak; and this professor took great pains to convince the magistrate that Mr. Flament was a very poor man, and that Mrs. Flament was a very naughty woman. "She has robbed her husband three times," said the professor,--"shut him up in _de prisonne_ vonce, and made _seex_, seven hondred _grands faux pas_!--Monsieur Flament had better broke de best of his two leg, dan marry such hussey! hussey! as madame his vife!" Mrs. Flament was about to recriminate, but the magistrate prevented her, by observing that, whatever faults she might have, she was the defendant's wife; and by the laws of this country, he was bound to support her. The only question, therefore, was, what sum should be fixed upon; and he thought _seven_ shillings a-week would be an equitable allowance. The professor said Mr. Flament would sooner quit the country than pay any such sum. "Will he?" said the magistrate, "but I will take care he does not; for unless something is agreed upon before he leaves this office, I will commit him to prison; and then we shall see how he will manage to leave the country." The professor asked ten thousand pardons for offending his worship; and begged to observe that madame could earn seventeen shillings a-week for herself, by her own hands. Madame replied, that it was _hat binding_ to which the professor alluded; but she was sorry to say, she was not so far _accomplished_ in it at present, as to be able to earn half that money. After some further conversation, it was agreed that _six_ shillings a-week should be the stipulated allowance; but then the parish must be indemnified. The professor said there was not the least danger that Mons. Flament would run away-- "Then why did you threaten that he would?" asked the magistrate. "I did not mean, Sare, that he should leave the country--the England," replied the professor, "only this town, Sare--that he should go out--into--the country, is all what I mean." The magistrate observed, that it was not the custom in this country to say one thing and mean another-- "Vera true--your worship," replied the smiling professor with a low bow--"but John Bull say many things he does not mean, for all that." His worship smiled also, and did not take the trouble of refuting the slander; and the matter ended in the professor and another friend of Mons. Flament becoming sureties to the parish on his behalf. UNREQUITED LOVE. Mr. Peter Twig--a venerable, rosy-gilled Greenwich pensioner, was charged with having created a great riot and disturbance in and about the attic residence of Mrs. Margaret Muggins; and with having threatened to beat the said Margaret Muggins to a mummy, under pretence of being _in love_ with her. It appeared that Mrs. Muggins--having lost her husband, and being short of money and one leg, was some time an inmate of the parish workhouse; and there she was first seen by Mr. Peter Twig, who no sooner saw her than he felt he was a lost old man, unless he could make Mrs. Muggins his own. He therefore determined to get himself admitted an inmate of the workhouse--for even the walls of a workhouse cannot hold love out; "and what love can do, that dare love attempt." He succeeded in getting into the house, and he succeeded in getting into the good graces of Mrs. Muggins. He told her of the battles in which he had fought--all on the roaring sea: he spoke to her of land perils, and water perils; of fire, and smoke, and grape-shot, and the miseries of six-water grog; and he expatiated on the splinter that knocked off a piece of his nose; and Mrs. Muggins was moved. "She loved him for the dangers he had seen, and he loved her"--because, as he said, he couldn't help it. So they eloped together from the workhouse, and took shelter in a three-pair back,[25] and there they fostered their venerable loves with gin and jugg'd jemmies[26] for three entire weeks. But, before the end of the fourth week, Peter's pension-money, and Mrs. Muggins's love, were all exhausted, and in spite of his tears and entreaties she left him, and went to reside with her married daughter. Poor Peter was inconsolable. He tried to drown his sorrows in max-upon-tick,[27] but it would not do; for his credit was little, and his sorrows were large, and at length he resolved to move Mrs. Muggins to pity him by casting himself at her _foot_. But Mrs. Muggins had a heart as hard as any rock, and she would not see him; and he laid himself down at the threshold of her apartment, and wished the door at the devil! So he-- "Built him a willow cabin at her gate, And called upon his love within the house-- Making the babbling gossip of the air Cry out--Meg Muggins!" And all this gave great offence, not only to Mrs. Muggins and her daughter, but to all the gossips of the neighbourhood; and they insisted upon his bundling himself off, and he would not. Then they attempted to bundle him off themselves, and then he flew into a great rage, and swore he would beat Mrs. Muggins to a mummy and mollify her heart with his _fistes_, since he could not soften it with sighs; and then they gave him into custody of a constable for fear he should do so. These things having been detailed to the magistrate by the daughter and neighbours of Mrs. Muggins--for Mrs. Muggins herself was too much alarmed to appear--his worship asked the forlorn old swain what he had to say to it. "Your honour," replied Peter, "I have been desperately ill-used. She--she knows she has ill-used me: and yet I can't forget she, for the life of me! When a man's in love, your honour, it's of no use talking to him! They may punch me and knock me about, but they can't knock the love out of me; and your honour may send me to quod, but quod won't cure me. What is it I would not do for _she_?--(_Mrs. Muggins_, he would have said, but Mrs. Muggins stuck in his--gizzard). What is it I wouldn't do for she? And yet you see how she uses me. Your honour, I've served my king and country many a long year, and have seen hard service in all parts of the world, and have seen many places took by storm, and it's desperate hard to be used a _thisns_ after all!" His worship admitted that it was very hard; but as it was evident the lady was determined not to yield, it behoved him to raise the siege and go into quiet quarters, for he certainly would not be allowed to take _her_ by _storm_. Peter declared he had no intention of taking her by storm; and said if she would only write him an answer to the letter he had _shoved_ under her door, he would try to be content. His accusers undertook that the letter should be answered--if it could be found; and eventually Peter was discharged, with an admonition to cease from pestering Mrs. Muggins, on pain of imprisonment. A DUN AT SUPPER TIME. Mr. John Dunn appeared upon a warrant to answer the complaint of Mrs. Amelia Groutage. Mrs. Amelia Groutage is an elderly lady of some sixteen stone or thereabout, and short in proportion--or, more properly speaking, out of proportion; for it is a doubt whether her breadth is not nearly equal to her height. We are thus particular in her admeasurement, because it materially influenced the decision on her complaint. She deposed, that upon her going to Mr. Dunn's house to demand payment of some money he owed her, he took her _round the waist_ with _one_ arm, whilst he gave her a violent blow on her shoulder with the other, and then turned her out of door. The magistrate expressed some doubt whether so small a man as Mr. Dunn could encircle her waist with _one_ arm; but she assured him it was the fact; and so Mr. Dunn was called upon for his defence. Mr. Dunn had such a multitude of words at his command, and used them so lavishly, that we cannot pretend to give his defence _verbatim_; but we gathered, that he and Mrs. Groutage lived within seven or eight doors of each other, and that the account between them is a disputed balance. Nevertheless, they had lived upon good neighbourly terms with each other up to last Tuesday night. On that night, Mr. Dunn had a little supper party at his house, to which Mrs. Groutage was invited, and she came among the rest. After supper, Mrs. Groutage "got very _glumpish_;" and nobody could imagine what ailed her, till at last she was rude enough to ask Mr. Dunn when he meant to pay her what he owed her; and threatened that if he did not pay her that very moment, she would summon him to Court next morning. The company were, of course, quite shocked at this sort of conversation; and Mr. Dunn, determined not to have the harmony of the evening destroyed in this manner, went quietly behind the angry and ill-bred Mrs. Groutage, threw _both_ his arms round her waist, fairly carried her out of the house, and set her down at her own door! This was the only violence he offered to her; and any injury she had received was entirely owing to her own kicking and plunging, and clinging to the door-posts as he carried her along. [Illustration: A DUN AT SUPPER TIME.] This statement was confirmed by a host of witnesses, and Mrs. Groutage was _nonsuited_. THE CANTAB AND THE TURKS. A pair of venerably-bearded Turks, in the full costume of the East, appeared before the magistrate, attended by one of the porters belonging to the Home Secretary of State's Office, who informed his worship, that one of the under secretaries had desired they should be conducted before him; they having some complaint to make against a member of the University of Cambridge. Neither of the Asiatics could speak a syllable of English, but they were accompanied by a man who offered himself as their interpreter, and who also called himself a Turk--though he was an exact personification of an English stage-coachman,--a sturdy, curly-headed, red-faced, knowing-looking fellow, in topp'd boots, bird's-eye _fogle_, and poodle _benjamin_. To this man one of the strangers talked for nearly a quarter of an hour, with astonishing volubility, and most redundant gesticulation; and, having concluded, the man delivered the following narrative--partly in English, partly in French, partly in Arabic, and partly in a dialect of his own, composed of all the others:-- The Turks, in the course of their travels, had sojourned some days at Cambridge; and whilst there had sold about ten pounds worth of their merchandise to a "_college-man_"--a collegian, whose name and address they produced. The "college-man" did not pay them for the merchandise; but promised to be ready with the money on a future day. When the day arrived, however, he was "gone somewhere away," and they could not find him. Some days more elapsed before he made himself visible; and then another day of payment was appointed; but when that day came, he was gone away again. In short, as the interpreter said, he was "always far off, round about in the countries--sometimes here, and sometimes there, sometimes everywhere, and sometimes nowhere at all." In all these eccentricities the poor Turks endeavoured to keep up with him; and urged the chase so warmly, that it would appear he began at length to grow confoundedly tired of it; and, hopeless of exhausting their patience by this kind of wild-goose chase, he hit upon the following queer contrivance to rid himself of their troublesome presence:--Having apologized for the delay that had occurred, he appointed to meet them on the following morning at a certain public-house, about five miles from Cambridge, on the road to London. The Turks were exact in keeping their appointment, and they had not waited long before "the college-man" made his appearance. He was accompanied by a young woman; and he proposed to the Turks that they should escort this young woman to London and take great care of her, as she was very _dear_ to him, and wait altogether at the White Horse Cellar, Piccadilly, till he joined them; that he would follow them in a day or two at farthest, and immediately on his arrival in town he would give them a cheque upon his banker for the original debt, and the travelling expenses altogether! This would have been a comical proposition to have made to an Englishman, but it answered very well with the poor Turks, and they readily agreed to it--not doubting but he would keep his word when they had a lady in pawn who was so very "_dear_" to him; and they took their departure for the metropolis by the first coach that passed; the "college-man" taking a tender farewell of the lady, and the simple _Mussulmen_ escorting her along the road with as much care as though they had been conducting some fair Circassian to the Seraglio of the Grand Seignor! They arrived at the White Horse Cellar in due course, and waited day after day for the arrival of "the college-man;" but to their _astonishment_ he never came, and their patience and faith evaporating together, they at length sought redress, by applying to the Secretary of State, as above stated. The magistrate said, it appeared that the collegian, by this unprincipled trick, had "killed two birds with one stone,"--he had rid himself of his creditor and his mistress at once. The stratagem, he said, was the more unprincipled, inasmuch as it was played off upon foreigners, who were utterly ignorant of the customs of the country, but unfortunately it did not come within his jurisdiction, and therefore he could render no assistance. His worship then recommended them to apply to a solicitor; and the interpreter tried hard to make them understand the nature of a solicitor, but the strangers only shook their turban'd heads and shrugged their shoulders in reply; and, so doing, they walked out of the office. JOHN BROWN. One of the churchwardens of St. Anne's, Soho, appeared in custody before the magistrate, to answer the complaint of John Brown. John Brown--or, more courteously speaking, Mr. John Brown--is landlord of a respectable inn, in Essex, and a jolly landlord he is--plump, unctuous, and rosy; and being at that time blessed with a fine pair of bloodshot eyes, his countenance looked as glowingly rubicund as a full-blown Patagonian peony. John Brown, it appeared, had a correspondent in London, named B--, who some time before accepted a bill in his favour, and within a few days, John Brown had received a letter from a Mr. D., informing him that his friend Mr. B. would not be able to honour his acceptance, because _Mrs. B. had eloped_! This was sad news for John Brown. He felt for his friend who had lost his wife; he felt more for himself, who was likely to lose his money; and, what with the wife and the money, and the money and the wife, he was puzzled exceedingly. But he was not the man to sit idly twirling his thumbs and bothering his brains, when there was a chance of mending the matter by using his legs; and so, having set his affairs at home in order, he came bang up at once to London, determined (like King Lear) to do something--though what he knew not. In the first place, he called upon Mr. D., for Mr. B. was from home--roving round the country in search of his faithless spouse, poor man! John Brown and Mr. D. laid their heads together; and, indeed, John Brown could not have come more opportunely, for Mr. D. had just got intelligence that the runagate Mrs. B., and her paramour, Lieutenant H., were concealed at No. 19, Carlisle-street, Soho. "Ho! ho!" thought John Brown to himself, "now I'll do the business genteelly--I'll get poor B. his wife again--I'll _baste_ the blackguard that took her away, and I'll get my bill honoured, _all quite regular_." Full of this hope and expectation, he instantly sallied forth on his way to No. 19, Carlisle-street, Soho; but, unfortunately, John Brown's memory "lacked retention"--the number of the house imperceptibly evaporated as he went along--by the time he reached Carlisle-street, _ten_ of the nineteen had completely vanished from his recollection, and so he boldly knocked at the door of No. 9. Now No. 9 was the residence of a most respectable maiden lady, the daughter of a late magistrate, and of very retired habits. But what was all that to John Brown? he had as little doubt of his having mistaken the house as he had of his own existence. The door was opened by one of the maid-servants, and John Brown, with his fine flaming physiognomy, strode manfully into the hall. The girl, with the open door still in her hand, stared after him with surprise.--"Shut the door, young woman!" said the peremptory John Brown, "shut the door, young woman, and show me up to the _missis_." "My mistress, Sir!" said the astonished girl;--"it's impossible--she is not up." "Aye, that won't do for me," replied John Brown, "I must, and I will see her directly--so show me up stairs!" The girl became alarmed, and called her fellow-servant; whilst John Brown continued marching about the hall, wiping the dewy moisture from his blushing brows, and vociferating aloud, "You baggages! you know all about it! But I won't be gammoned!--you know the _missis_ is in bed with Lieutenant H.! But I'll have him out in spite of you!" At length the two girls together prevailed upon him to moderate his choler a little, and write a note to their mistress. They furnished him with pen, ink, and paper, and he set about it lustily; but he wrote and wrote, and could write nothing to his mind. He threw his coat off, and tried again; but still it would not do. Then he recollected that he had been bled the day before, and that the bandage might possibly impede the flow of his thoughts as well as the motion of his pen. Up goes his shirt sleeve in an instant; and stretching out his brawny arm, he ordered the girls to unloose the bandage; but by this time they had no doubt that honest John Brown was neither more nor less than a madman, and one of them slipped out of door and requested Mr. N., the churchwarden, who resided immediately opposite, to come to him. The churchwarden came, just as John Brown had managed to unroll the bandage from his arm himself, and was taking pen in hand to have another try at writing. He demanded John Brown's business there, and John Brown told him all about it without bating an inch. When he had done, the churchwarden told him he was either mad, or was labouring under some gross mistake. John Brown was doubly fired at this--his countenance, from a glowing red, became of a mahogany tint, and he manifested symptoms of kicking up a row. But the churchwarden was not to be frightened by "the blustering of a _turkey-cock_;" and so, quietly grasping John Brown by the arm, he "_walked_ him out of the house;" and walked him, and walked him along the street, till he had walked him into the office of the lady's solicitor, in order that he might be dealt with according to law for his strange intrusion into her house. But the solicitor happened to be from home, and John Brown was suffered to go at large; whereupon he repaired to the nearest tavern, took a bumper of brandy and water to reconglomerate his faculties, and then applied at this office for a warrant against the churchwarden,--who, as he said, had dared to walk him out of one house into another. The magistrate having heard the business from beginning to end, with great patience, dismissed the warrant, and told John Brown he might think himself well off that it was no worse. This is the end of John Brown's adventures, as far as we are acquainted with them. JOHN SAUNDERS ON HORSEBACK: A NARRATIVE; Showing how, like John Gilpin, he went further than he intended, and got safe home again. _Mr. John Saunders_, a remarkably soft-spoken, mild young man, of demure carriage, slender proportions, and rather respectable appearance, was placed at the bar, under a (not very violent) suspicion of having stolen a horse; but it turned out that the suspicion was groundless, and that instead of John Saunders stealing the horse, the horse stole John Saunders! It appeared that as Mr. Stephen Marchant, of Turnham-green, was riding quietly homewards from town, between eight and nine o'clock in the evening, his horse got a pebble in one of his feet, which made him go lame, and Mr. Marchant alighted to extract it. Whilst he was busied in this operation, who should come up offering assistance but John Saunders, with a large white band-box in one hand, and an umbrella in the other. Mr. Marchant accepted his help with many thanks; and John Saunders, setting down his band-box in the road, began grubbing away at the unlucky pebble with the spike of his umbrella, whilst Mr. Marchant held up the foot of the horse; and he grubbed and grubbed at it, so earnestly, that at last the spike of the umbrella "broke off as short as a carrot." Well, what was to be done now? Why Mr. Marchant, thinking he could knock out the pebble with a large stone, asked John Saunders to hold the horse whilst he looked for one; and John Saunders readily undertook to do so; but whilst Mr. Marchant was groping about, in the dark, for the stone, he saw, to his utter astonishment, John Saunders on the back of the horse, scampering away towards Kensington as if the deuce was in him--his umbrella tucked close under his arm, and his great white band-box banging about from side to side _like mad_, as he said. Mr. Marchant stood aghast for a moment, and then followed, crying "Stop thief! Stop thief!" with all his might. Every horseman on the road, the horse-patrol and many foot passengers, hearing this cry, scampered after John Saunders with might and main, and the hue and cry sounded far and wide-- "Stop thief! stop thief!--a highwayman!" Not one of them was mute; And all and each that passed that way Did join in the pursuit. And still, as fast as he drew near, 'Twas wonderful to view How in a trice the turnpike men Their gates wide open threw. --Tramp! tramp! away he went, through merry Kensington, down Phillimore Place, dashing by Holland House, and so away for Hammersmith, with a continually increasing rabble rout at his heels. But John Saunders gained upon them at every bound of his steed; he shot through Hammersmith-gate with the rapidity of lightning, and wheeling round to the left, down Fulham-lane, he got so far a-head of his pursuers, that they could see nothing but his great white band-box--as it went bobbing and swinging from side to side at his back. Down Fulham-lane, however, they followed him, slap bang!--and on they went, hallooing and hooting, through mud and through mire, through fog and moonshine, till at last he took a desperate leap over the fence of a ploughed field; and when the foremost of his pursuers came up to the gap, even the bobbing of his band-box was invisible!--In _plain_ terms, he fairly "tipped 'em the double"--he was vanished; and Mr. Marchant having thus lost his horse, was under the annoying necessity of--getting home how he could. On the following morning Mr. Marchant repaired to town on foot, to give notice of the robbery to the police; and almost the first object that caught his eye, on getting into Piccadilly, was John Saunders--still mounted on his Bucephalus, but without either band-box or umbrella. He stared at John Saunders--John Saunders stared at him; and they gradually drew near to each other without a word being uttered on either side. Having conglomerated, John Saunders offered him his horse again--telling him he had "mounted it by accident," and it ran away with him; that he wished it at the _dooce_, almost, for taking him so far from home; and that he was come to town for the sole purpose of advertising in the _noosepapers_ for its owner. When he had told the astonished Mr. Marchant all this, he dismounted; gave the bridle rein into Mr. Merchant's hand, and then produced the manuscript of his intended advertisement. But Mr. Marchant having no idea of a man's "mounting a horse by _accident_," seized John Saunders by the collar, and gave him in charge to one of the passing patrol, who brought him to this office. So far was Mr. Marchant's statement of the affair; and, he having concluded, John Saunders was called upon for his defence. John Saunders, as we have already stated, was a remarkably mild, quiet young man; and he told a story--or rather a story was drawn out of him bit by bit, of which the following is the substance:--He resided with his mama at Clapham--was himself "brought up in the glass line," (and truly he seemed as _transparent_ as glass,) but was then out of business. On the afternoon preceding the night on which he met with Mr. Marchant and his wicked horse, his _mama_ sent him to her milliner's, at Kensington, to bring home a bonnet and feathers which she had sent there to be "done up." He went to Kensington--called upon a friend, who gave him some Scotch ale--went to the milliner, who put the bonnet and feathers in a large white band-box, and he was quietly returning home to Clapham with it, when he fell in with the gentleman, and his horse with a pebble in his foot: but he wished he never had fallen in with them; for he had been made very miserable by it. He offered his services to get the pebble out, and spoiled his umbrella; he undertook to hold the horse while the gentleman looked for a stone, and the Scotch ale, having got into his head, as he supposed, induced him to get on the horse's back--quite contrary to his intention. The horse ran away with him directly--directly contrary to the way he wished to go--he was hurried along, in a dreadful manner, he knew not whither, till the horse stopped at Brompton; and then he found that the large white band-box was worn almost to tatters by its excessive agitation on horseback, and that one of the feathers of his mother's bonnet was sadly broken. He then considered within himself that it would be impossible to find the gentleman to whom the horse belonged that night; and, having bought a new band-box for his mother's bonnet, he rode home to Clapham, put the horse in a butcher's stable, gave it some corn, had his own supper, and went to bed dreadfully tired. In the morning he got up early, wrote an advertisement about the horse, and was coming to town to put it in the papers, when he met the gentleman, who was very angry with him, and gave him into custody. Mr. Marchant, in reply, said he was inclined to believe his story, but he thought it right he should be told authoritatively that he was not to play such pranks with impunity. The magistrate, therefore, gave John Saunders a suitable admonition, and dismissed him. 'PON MY HONOUR IT'S TRUE. A German mechanic having laid information at this office that a countryman of his, named Schultz, residing in Green Street, Leicester Square, was kept in a state of durance, in his own house, by an Englishwoman, who, he verily believed, had a design both upon his life and property, the magistrate sent some officers to bring the parties before him. They accordingly proceeded to the house, but the English lady peremptorily refused them admission, and it was several hours before they were able to effect an entrance. At length, however, they brought the parties to the office in a hackney coach--for the lady was too magnificent to walk, and the poor old German was so afflicted with paralysis, that he was carried before the magistrate on the back of one of his countrymen. He was indeed a miserable object--his limbs utterly useless--his eyes dull and unnaturally protruding--his beard unshaved--his hair matted with feathers--and his whole person disgustingly filthy. The lady, on the contrary, was a fine bouncing woman, of rather handsome countenance, gaily dressed in a fashionable bonnet and plume, and her fat white fingers covered with glittering rings. Nevertheless she bodily professed that she _loved_ the poor emaciated, dirty, paralytic old man; and she affirmed that all her attentions to him were purely disinterested. He was exactly in the same state, she said, when she first became acquainted with him, five years ago--not worth a single sixpence, over head and ears in debt, half crazy, of filthy habits, lame, old, and impotent--and yet she _loved_ him--loved him for himself alone. ("Oh! who doth know the bent of woman's phantasy?" as Master Spenser saith.) She delivered these _fibs_--for fibs they surely must be--in the short, quick, _staccato_ manner, perfectly at her ease, and alternately munching an orange and blowing her nose between every word. She had a solicitor, too, in attendance upon her--a little wee man, inclining to threescore, who evidently spent more in hair-powder than in soap; and to him she appealed at the close of every sentence she uttered--"'Pon my honour it's true!--there's my solicitor, ask him;" and the solicitor as regularly bowed his powdered little head in assent. The wretched old German stated, that this lady came as a lodger to his house in the first instance, and took every opportunity of attending to him in his illness; till at length, finding she had ingratiated herself with him, she proposed to him to make her his wife. This he very ungallantly declined; and she contented herself with only passing for his wife, and assuming more than the privileges of one. She turned out his lodgers, and got creatures of her own in lieu of them. She forbade his friends and countrymen from coming near him. She pretended they only wanted to rob him, and prevailed on him to make his will, leaving all his property to her; and having accomplished this, she confined him in a little room, fed him scantily, and beat him whenever he remonstrated with her on her altered conduct. In conclusion, he expressed his thankfulness that he had been rescued from her tyranny, and implored the magistrate to protect him from her in future. The magistrate said he could easily afford protection to his person, but he wished to protect his property also. The solicitor here informed his worship, that the complainant had no property to protect--inasmuch as he had given the lady a bill of sale of all he possessed, in consideration of a hundred pounds she had lent him at different times. This, the wretched old foreigner denied. He declared that she had never lent him but 13_l._, and even that she forced upon him; that he knew nothing of any bill of sale, and that she had taken away the lease of his house, and hid it. A long desultory altercation ensued, and eventually this disinterested lady was ordered to find bail for repeatedly assaulting the object of her love; and not being prepared with any, she was delivered into the custody of the gaoler, whilst the old man was carried out of the office again on the back of his countryman. BEER--NOT BODIES. A poor hunchback'd little printer, whose dreary destinies have driven him to seek an asylum in St. Clement's workhouse, was brought before the magistrate, charged on suspicion of being a _resurrection man_. His accusers, a couple of large-sized watchmen, told the following story; or rather, a story to the following effect:--In the dead of the night, "when churchyards yawn, and graves give up their dead," a man came to these watchmen and told them, he verily believed there were three resurrection men at work among the graves in the burial-ground adjoining St. Clement's workhouse--that identical burying-ground which contains all that is left in this world of the once merry Joe Miller. The watchmen, having received this intelligence, and trimmed their lanterns, went straightway to the burial-ground, and clambering over the iron railing, they searched the whole place, grave by grave, until at last they found--not three stout resurrection men, with pick-axes and spades; but one solitary being--the poor hunchbacked unfortunate little pauper printer above mentioned. He was sitting, all alone, on the top-mast round of a ladder; which ladder was reared against the window of a house bordering on the burial-ground; and in that window there was a dim glimmering light; and, therefore, the watchmen took the moping little man into custody, and had him away to the watch-house.--For they had heard that bodies had often been conveyed away from the burial-ground through the windows of that house, and so out at the front door in St. Clement's-lane, and away at once to the dissecting-rooms--Guy's Hospital, perchance, or the cadaverous halls of Blenheim-street. Bodies, now-a-days, as they said, fetched a big price, and who so likely to be tempted by a big price as a poor pennyless pauper; _ergo_, the little hunchback printer, being a poor pennyless pauper, and being at such a time of night in such a place, with a ladder reared against such a house, offering every facility for such a purpose, must, no doubt, be concerned in some such deadly doings. And, as a further proof, if any were wanting, one of the watchmen concluded his evidence in these remarkable words:-- "Your worships, I have no doubt in the world, that at _some future time_ bodies _have been taken_ through that very house!" Whereupon, Sir RICHARD observed, that the opinion would have had more weight, if the _tenses_ had been less confused. It afterwards appeared, however, that _future_ and _former_ were synonymous terms in this watchman's vocabulary, and so his opinion became intelligible. Mr. Minshull now asked the pauper printer what he was doing in the burial-ground at that time of night; adding, "I am afraid, my friend, you were there with the intention of stealing dead bodies." "Not a bit of 'em, your worship--not a bit of 'em," replied the printer--"Lord bless you, Sir!--it was _beer_, and not _bodies_, that I was looking for!" He then told his story; from which it appeared that the master of the workhouse had treated him and the other paupers with a modicum of beer on the preceding evening in honour of the season, for it was Christmas-eve; and this small taste stimulating their stomachs for more, little hunchback undertook to forage for some, after the master should be gone to bed. Accordingly, when the master was fast asleep, little hunchback crept down stairs with a subscription of tenpence in one hand, and "the workhouse can" in the other; and with the assistance of the lamplighter's ladder he got out of the yard into the burial-ground. He then pulled the ladder after him, and reared it against a house in which he saw a light; and, tapping gently at the window, it was opened by a gentleman in a white nightcap, to whom little hunchback said, "Beg pardon, Sir! but would you be kind enough to get us half-a-gallon of mild beer, in this 'ere can?" "The gentleman said he would, and welcome," continued he; "and God knows, I was sitting on the top of the ladder, waiting for it, and thinking of nothing in the world but the beer, when the watchmen came and took me." The magistrate sent for the master of the workhouse, and the several persons implicated, and they confirming the poor printer's story, he was discharged; but Mr. Minshull admonished the master not to let the lamplighter's ladder be used in the same way again, even though he should be obliged to carry it into his own bed-chamber. MOLLY LOWE. The following very touching instance of the irresistible force of love was brought under the notice of the magistrate some time in the winter of the years 1823 and 1824. There lives in the Strand--or there did live at the time above-mentioned--a very respectable young tradesman, whose name has nothing at all to do with this affair;--let it suffice, that he occupied a large and lofty house; and being a bachelor, he employed a housekeeper, whose name was Molly Lowe; and this Molly Lowe is the heroine of our story. Molly Lowe, then, is a woman of staid and serious demeanour; plain in her person, neat in her dress, past forty, and a spinster. For these reasons, all and sundry, her young master placed implicit confidence in her, and gave up the entire management of his household affairs to her direction. In his opinion Molly Lowe was an immaculate matron, and full proof against every thing--except superfine souchong, with the least drop of brandy in the world in it. But this opinion of his was a very fallacious one,--neither man nor woman, be their age and uprightness what it may, can ever be proof against love. And so it turned out in this instance-- "For Love, the disturber of high and of low, Who shoots at the peasant as well as the beau," --let fly a sharp arrow at _Molly Lowe_; and her forty years' frost melted before the youthful charms of James Wright--a drum-boy in the First or Grenadier Regiment of Foot Guards, commanded by his Royal Highness the Duke of York! The first notice her master received of this change in Molly Lowe's temperature he received in an anonymous letter, signed "Microscopicus;" which letter--after lamenting the multitude of sins that spring up everywhere like mushrooms--from the _button_ to the _broad black flap_, informed him that Molly Lowe had fallen in love with the little drummer aforesaid, and earnestly recommended him to nip her iniquity in the bud. "And you need not take my _ipse dixit_ in the matter at all," continued the letter of Mr. Microscopicus, "for if you will return home any evening unexpectedly, you will find _Molly_ and her _moppet_ junketing together on the contents of your larder." The master had little faith in this epistle; for, as he said, the thing was so improbable; and he was half inclined to think that Mr. Microscopicus was either some meddling methodistical miscreant, or some discarded lover of Molly's youthful days. But well knowing that nothing is impossible, and that more unlikely matrons than Molly have been entangled in the toils of love, he put the epistle in his pocket, and determined to keep a sharp look-out on Molly's movements in future. [Illustration: MOLLY LOWE.] Several days passed without his discovering anything; and he was just beginning to feel satisfied that Mr. Microscopicus was what he had supposed him to be, when, one evening, his curiosity was strangely excited by Molly's absence from her ordinary occupations.--What could be the meaning of it? Every time she was called, she came down from her bed-room, instead of up from the kitchen; and every time, she seemed more and more cross at being "call'd about so." "What _can_ you be doing up stairs so much, Molly?" said her master. "Nothing," replied Molly. "Then what makes you go there so often?--What--have--you--got in your head, Molly?" "Lord bless me, nothing!" was Molly's invariable reply; and at every succeeding question she grew more waspish than before. But her master was not satisfied with this simple nothing--he felt quite sure there must be something wrong. So, calling his shopmen together, he ascended with them to Molly Lowe's bed-room; and there, to Molly Lowe's confusion, he found the identical drummer stowed away like Falstaff, in a buck-basket! There he lay--sword, cap, and belt, complete, coil'd up hilt to point, head to heel, in the bottom of the buck-basket, and covered over with a mountain of foul clothes!--"It was a miracle he escaped suffocation!" The buck-basket stood in a little closet, and they drew him forth from his----but "comparisons are _odorous_,"--it is enough, that they pulled him out, set him up on end, and shook him well; and that the master, turning to Molly Lowe, said "Molly! Molly! I never could have expected this!" "Bless _me_!" replied Molly Lowe--suffused with deep mahogany blushes, and bristling about like an angry turkey-cock--"Bless _me_! what a fuss there is about a bit of a boy!--He's my sister in law's own cousin, and I sent him up stairs because there were some ladies coming to look at the first floor; and where was the mighty harm of that?--And I'd have you to know, Sir, that you use me very ill, Sir!--and I won't bear it any longer, Sir! and"----And here she took out her handkerchief, held it to her eyes, and rushed out of the room in hysterics. The enamoured drummer seemed quite dumbfounded by the catastrophe; he attempted no defence; and, as Molly's master was by no means satisfied with her matronly account of the matter, the poor youth--all reeking from his hot bed, was handed over to a constable who shut him up for the night in the cold and comfortless watch-house. Oh! what a miserable Molly must Molly Lowe have been that night! In the morning the drummer was brought before the magistrate, to whom all these matters were related; and the constable added, that the drummer had confessed to him that he had often been to drink tea and sup with Molly Lowe; that she was over head-and-ears in love with him; that she had bought him a watch, with gold chain and seals, and had given him more than three pounds in money; and that she had assured him she was indeed his own cousin, by her sister-in-law's side, only seven times removed; but of that he knew nothing, having never heard of her till she met him one Sunday evening and asked him to come to tea. His worship observed, that this was a very _ungallant_ confession--to say the least of it; and he then asked if Molly was in attendance. Her master replied that she was not--as he meant to content himself with discharging her from his service. He was not aware that he had been actually robbed, either by her or her young admirer; but he had brought the youth before his worship, because he thought he deserved some punishment for his impudent intrusion. The magistrate said, he thought Molly was the most deserving of punishment; but he asked the poor lad what he had to say to it. He replied, that Mrs. Lowe asked him to come to see her, and he went; that she was very kind to him, and gave him tea and things up stairs; and that he was very glad when they came and pulled him out of the dirty clothes, for he had been under them more than two hours. His worship ordered that notice of his situation should be sent to his regiment; and in the evening he was delivered into the custody of the _drum-corporal_, who attended to receive him. And thus ended the amour of Molly Lowe. [Illustration] A WEARY BENEDICT. Of all the miseries, or vices, which are daily brought to this office for relief or correction, there are none that give the magistrates more trouble than the miseries of matrimony--and the trouble is the more painful, inasmuch as, in nine cases out of ten, it never leads to any satisfactory result. Scarcely a day passes without some connubial _devilry_, or other, being submitted to their judgment either by man or woman--members of the married public of this metropolis; and in almost every case their prayer is, total separation--a comfort which a magistrate has it not in his power to bestow. It is only your wealthy couples who can shake off their fetters--the needy ones must wear them for life. A weary Benedict of this latter class--a large middle-aged man, of lachrymose physiognomy, respectful demeanour, and decent attire, presented himself before the magistrate, one gloomy December morning, to request some relief from his wedded woes. He had waited more than two hours among the crowd at the lower end of the office, whilst the ordinary business was going on without manifesting the slightest impatience; and when the hurry and bustle was over, he sedately approached the table, and told the magistrate, in a confidential under-tone, that he wished to consult him on a subject of the utmost importance-- "Speak out, Sir!" said the magistrate, "I am ready to hear you." "Your worship, I am a _married man_," began the applicant--compressing his lips to keep down a rebellious sigh, which thereupon forced its way through his nostrils--rushing-ly indignant at his attempt to confine it--"I am a _married man_, your worship!" "Well, Sir, and what of that?" said his worship.--"So much the better for you, if you have a good wife." "Ah, Sir!" ejaculated the poor man, "I have been married eighteen years--and eighteen years of unmixed misery they have been to me! I thought to have lived in paradise, as it were; but I could not have been more miserable if I had lived in--the _other_ place!" He paused--sighed again--and then, taking out a ragged pocket handkerchief, he stood silently wiping his forehead until the magistrate roused him from his reverie by saying, "My good friend, I am very sorry for you, but what would you have _me_ do?" "I don't know, Sir," he replied, despondingly, "but I was told I could get some relief by applying here." "If you wish to get divorced, I cannot do that for you," rejoined his worship:--"we should have little time for any thing else, I fear, if we could divorce all the unhappy couples who apply to us!" "I have no doubt of it," said the man--"no doubt in the world of it! But, your worship, I don't wish to put my wife away so as to disgrace her. I would allow her a comfortable maintenance, if she would only leave me in peace." "That you must agree upon between yourselves," observed the magistrate--"I cannot assist you in the negotiation, nor can I interfere at all between you, unless she has committed some breach of the peace--Has she struck you? or are you afraid she should attempt to take away your life?" "I don't know whether she means to take away my life, or not," replied he, "but she is eternally beating me whenever she is tipsy; and that is almost every day!" "Then why do you let her drink?" "Ah! your worship, it's fine talking! I have long discontinued keeping anything drinkable in the house, except water and milk, and what is the consequence?--Why that my head is continually covered with bumps and bruises; and my chairs, tables, linen, and looking glasses, are daily converted into _gin_!" "My good friend," said his worship, somewhat impatient of the subject--"my good friend, I really cannot do anything for you. You married her 'for better or for worse, to have and to hold until death shall you part,' and you must bear your misfortune as well as you can. I repeat, I--can--do--nothing for you." "Then I am a very miserable man!" ejaculated the poor fellow, and turning from the table he heaved another sigh, so piteous and profound, that the discharge did seem to stretch his care-stuffed breast almost to bursting. THE GOLDSMITH AND THE TAILOR. An elderly goldsmith of rather choleric temperament, though well to do in the world, was brought before the magistrate on a warrant, wherein he was charged with having perpetrated an assault and battery on the person of one Mr. John Carpue, a student in tailory, or "a tailor's apprentice," as the ancients used to say. And this was the manner of it:-- The goldsmith was indebted to a celebrated professor of tailory in the vicinity of Bond-street, for sundry exquisitely-cut garments, furnished to him as per order. This account had been kept open so long, that latterly, it had become "somewhat musty"--just as a jar of any other _preserves_ would do if kept open too long; and therefore the professor sent one of his junior students to the goldsmith, requesting it might be closed--in _plain_ terms, he wished to have the "tippery" for his "toggery." The goldsmith took the request angrily; and instead of sending the junior student back with the money in his pocket, he sent him back with "a flea in his ear." The professor thought this conduct extremely rude and ungoldsmithlike; and after two or three days' cogitation he sent his _senior_ student, Mr. John Carpue, with a more peremptory message. The senior student went, saw the goldsmith, delivered the professor's message, and paused for a reply. The goldsmith lowered angrily upon him, as he had done upon the other, and ejaculated something about "confounded coxcombs." The tailor "saw his anger rise--his glowing cheeks and ardent eyes," but, instead of succumbing to his choler, he stood his ground firmly; and boldly repeated his message with a few aggravatory flourishes of his own; whereupon, the goldsmith, not having the fear of the Quarter Sessions before his eyes, seized the tailor-student by his cutting-arm, and ejected him from the room; at the same time endeavouring to shut the door upon him. "I ar'n't to be bundled off without the money in this manner," exclaimed the student. "If you don't go along, I'll break your neck downstairs!" exclaimed the goldsmith. The tailor contumaciously set his back against the door to prevent its closing; the goldsmith tried with all his might to close it; the tailor squeaked out his anger; the goldsmith grunted out his indignation; the door creaked and strained between them; and in all probability it would have been forced off its hinges, and, perhaps, totally spoiled for ever, if the goldsmith had not, with great presence of mind, popped his fist through the opening, right into the tailor's masticatory apparatus. The tailor fell; the door was closed; the goldsmith returned quietly to his seat; and then the tailor--having gathered himself up, and shrieked a parting malediction through the key-hole--went back to Bond-street, quite discomfited. This was the assault and battery complained of; and the goldsmith, in his defence, said the tailor refused to leave his house when he told him, and upon his attempting to show him the door, the young _buckramite_ rudely seized him by the collar; which rudeness he returned of course. The magistrate held the assault justifiable under such circumstances, and so the poor "student in tailory" was non-_suited_. THE RAPE OF THE WIG. One Bob Jenkinson, the son of an honest law-writer-- "A youth condemn'd his father's soul to cross, Who _picks a pocket_ when he should _engross_!" --was charged with having taken unto himself property to which he had no right or title whatever--to wit, a _barrister's wig_. It appeared by the evidence, that Bob Jenkinson--hopeful Bob, his friends call him; was prowling about Temple Bar in the dead of the night, seeking something for his "pickers and stealers" to do. Presently he was aware of a solitary gentleman approaching the Bar from the city side; and instantly concealed himself in the shade of the archway, he determined to try his luck upon him. The gentleman, so approaching, was a barrister, residing in the Pump-court of the Temple; and he came slowly, and soberly on--wrapped (probably) in professional meditations, little thinking danger was so near him. As he passed through the archway, Bob Jenkinson popp'd from his hiding-place, crept softly after him on tip-toe, slided his hand smoothly into his right-hand coat-pocket, and drew forth--a _wig_! Like _Filch_ in the opera--he dipp'd for a _fogle_ and prigg'd a _wig_! It was not a forensic wig, but a scratch wig, _à la Titus_--one that any closely cropped gentleman might carry in his pocket to clap on occasionally, when sitting in a theatre, or any other place where currents of cold air prevail. Small as it was, however, the barrister felt it depart. He put his hand to his pocket and found it wigless; and there, close by his side, stood Bob Jenkinson with the wig in his hand--wig-struck, as it were; for had the prize been a bandana, or a snuff-box, or any _ordinary_ pocket-property, Bob would have bolted with it _instanter_. "What do you mean by that--you scoundrel?" said the barrister. Bob dropped the wig; the barrister took it up; and having re-pocketed it he deliberately gave unlucky Bob in charge to the watch. Robert had not a word to say in his defence, and the magistrate committed him for trial. A BRUMMYJUM OUTRIDER. One Mr. Peter Muttlebury, a personage with the exterior of a hackney coachman, of the _down_-est cut, but who called himself "a _Brummyjum_ out-rider," was brought before the magistrate one snowy morning, charged with having _borrowed_, with intent to _steal_, an eight guinea inlaid gold and silver snuff-box, with its contents, viz., almost half an ounce of high-dried Irish, from a Mr. William Wilkins--a very small gentleman in a very large cloak, worn military-wise--after the present highly picturesque fashion, which makes a man-milliner look as magnificent as a Field-Marshal. It appears that Mr. William Wilkins, having been out on Friday night--spending his evening, as it is called--repaired at five o'clock in the morning to Rowbotham's "_final finish_," in James-street, Covent-garden, just by way of finishing himself. He found the saloons full of good company. There were assembled the Marquis of Paramatta, Viscount Toongab, the celebrated Lord Mops, from Cheapside, Sir Francis Fogleshifter, Sir Sidney Cove, Mr. Gluckman the bass singer, Mr. Phelim O'Toole the strong-backed Knight of the Knot, and Mrs. Judith M'Craw, Dunstable Charlotte, Peg Protheroe, Kitty Parenthesis, Sally Succinct, and many other fair nymphs of the piazza. There was singing and drinking _galore_--"We are the lads," and hot elder wine, and coffee of the best, went merrily round; Mr. Gluckman, and Dunstable Charlotte, and my Lord Mops, "roused the _morning lark_ in a catch;" and old Father Time, with his companion old Winter, in the _lily-white benjamin_,[28] were held in utter scorn by every body. Mr. William Wilkins enjoyed the fun vastly; in token whereof he handed round his high-dried Irish to the ladies and gentlemen liberally; and then sat himself down to half a pint of smoking hot elder-wine among a select company of ladies in one of the side saloons. Presently came the "Brummyjum outrider" to him, with a low bow, and a "Mr. Gluckman, will be obliged to you, Sir, for another pinch of your high-dried." "With infinite pleasure," replied Mr. William Wilkins, handing over his eight guinea snuff-box to the Brummyjum out-rider. Mr. William Wilkins then finished his smoking hot elder, and repaired to the general company again--not doubting but his snuff-box was safe with Mr. Gluckman; but, to his utter astonishment, neither Mr. Gluckman, nor my Lord Mops, nor the Marquis, nor the Viscount, nor any of the ladies, knew any thing about it. Mr. Gluckman declared he had never sent for it; nobody knew the "Brummyjum outrider," nor could he be found; Mr. William Wilkins said it was uncommon improper, and every body ought to be searched; my Lord Mops said "the _highdear_ of such a thing was cursed _low_;" the ladies voted Mr. William Wilkins a bore; and Mr. William Wilkins walked away, _cleaned out_ and completely _finished_. He wandered to this office, and communicated his woes to the patrol in waiting; and in two or three hours thereafter they succeeded in apprehending the "Brummyjum outrider," but no snuff-box could they find upon him. The Brummyjum outrider, in his defence before the magistrate, persisted in saying that Mr. Gluckman asked him to borrow the box, and having borrowed it, he delivered it to Mr. Gluckman; and what became of it afterwards he knew not. The magistrate said he had little doubt but he obtained possession of it with a felonious intent, and committed him for further examination, in order that Mr. Gluckman might come forward to explain, or deny, the part it was alleged he had taken in the transaction; but eventually the matter was arranged among themselves without any impeachment of Mr. Gluckman's character, and the "Brummyjum outrider" was discharged. PAT CRAWLEY'S MULE. Mr. Phelim O'Callaghan appeared before the magistrate to show cause why he should not be charged with having stolen Mr. Pat Crawley's mule. Mr. Pat Crawley, according to his own account, was "a Scotchman, born of Irish parents in the Saut-market o'Glasgow." They, dying, left him a pedlar's pack and a brown donkey; and, ever since, he has followed the profession of _Autolycus_--a frequenter of fairs, wakes, and wassellings, and a snapper-up of unconsidered trifles. Latterly he has travelled in this manner from the Salt-market in Glasgow quite down to Penzance in Cornwall; gather gear as he went, and increasing his worldly goods at every village by the way. At Penzance he sold his donkey and bought a mule; and, travelling on towards London, he arrived at the house of Mr. Phelim O'Callaghan, in Buckeridge-street, St. Giles's. Now Mr. Phelim O'Callaghan being his seventh cousin by the mother's side, he thought he and his mule would be perfectly safe under his roof; and the more especially as Mr. Phelim O'Callaghan expressed great joy at the sight of him. So Mr. Pat Crawley put his mule in Mr. Phelim O'Callaghan's little stable at the back of his place--rubbed it down; supped it up; and then went out to enjoy himself with a mutchkin o' whiskey at the Change-house fornent the corner. At the Change-house he found the ingle bleezing finely, and the whiskey o' the best, and the gude wife unco sonsie, and so many of his mother's cousins came in to see him, that mutchkin followed after mutchkin till they reemed in his noddle a bit; and at the last o't he gang'd to his bed, at Mr. Phelim O'Callaghan's, with a black eye and an empty purse--having lost seven good gowden sovereigns he didna ken how! In the morning he got up at break o' day, thinking to saddle his mule and gang his ways fra the town; but the mule was gone, and no one ken'd where! The magistrate condoled with him on his loss, and recommended him to be more careful of his property in future; and then asked Mr. Phelim O'Callaghan what had become of the mule? "Yer honour's axing me about the mule," replied Mr. Phelim O'Callaghan, "an I knows nothing about her at all--barrin Pat Crawley put her in the stable himself along with the _dunkies_." "The _dunkies_! what do you mean by dunkies?" asked his worship. "Them are little bits o' things--little bits o' mules--dunkies, your honour, as carries the cabbages and purraters about; and I told him, says I, Pat Crawley, says I, de'il a bit of a lock there is to it--that's the door, your honour: an Pat, says I, buy your own lock, says I, or her'll be off may be; and he woudn't, your honour, and so she was--" "Was what?" "_Off_, your honour, sure enough--that's the mule, your honour, bad luck to her!" One of the patrole said he had been called in by Mr. Pat Crawley, upon the discovery of his loss, and he had examined Mr. O'Callaghan's premises in consequence; and as there was no other way from the stable but through Mr. O'Callaghan's _house_, he was of opinion that the mule could not have been taken away without Mr. O'Callaghan's connivance. Mr. O'Callaghan declared he knew nothing whatever of it, and his worship might have a six months' _carrakter_ of him any day in the week. His worship, however, told Mr. O'Callaghan that he must either find the mule or remain in custody; and he left the office under the surveillance of the officer and Mr. Pat Crawley himself. They adjourned to a neighbouring public house, whence Mr. O'Callaghan despatched a messenger of his own to St. Giles's, and in two hours after the mule was brought down to the office and safely re-delivered to Mr. Pat Crawley--and thereupon Mr. Phelim O'Callaghan was discharged; upon which he exclaimed--"Bad luck to the mule for _getting_ out of _that_! and long life to your honour for _letting_ me out of _this_!" THE TEMPLAR AND THE COOK. This was a matter of assault, battery, riot, and false imprisonment, between Theodosius Todd, Esq. and Mr. John Cutmore. Mr. Theodosius Todd is a gentleman, it is said, of considerable property; rather diminutive in stature, and very fond of cold boiled ham. Mr. John Cutmore is a vender of cold boiled ham, and many other good things, at a large house near Temple Bar--a house well known to many a kitchenless bachelor. Mr. Theodosius Todd having complained to the magistrate that he had been violently assaulted by Mr. John Cutmore, the magistrate granted his warrant to bring Mr. Cutmore before him, when Mr. Cutmore pleaded _justifiable collaring_, and thereupon issue was joined. It appeared by the evidence for the prosecution, that on a certain day named, Mr. Todd sent his servant boy, from his chambers in the Temple, to the shop of Mr. Cutmore, for a quarter of a pound of cold boiled ham--fully intending to take the said ham for a lunch in the form of a sandwich, between slices of bread, or bread and butter, as the case might be. He, moreover, instructed his servant boy to bring ham of the very best quality, and he made no stipulation whatever with regard to price. In due time the boy returned with a quarter of a pound of ham; but it was by no means of such quality, or complexion, as Mr. Todd had anticipated; and he therefore sent it back again, with a request, either that it should be exchanged for some of a better quality, or the money returned forthwith. In answer to this very reasonable request, Mr. Cutmore sent word that Mr. Todd did not know good ham when he saw it, and he should neither exchange it nor return the money. Mr. Todd sent the boy a second time, and a second time Mr. Cutmore returned the same contumacious answer. By this time the ham began to exude copiously through the smoky fly-spotted bit of paper in which it was wrapped, and Mr. Todd felt very much annoyed at the predicament in which he found himself--as any man naturally would do under the circumstances. There was lunch-time sliding rapidly away unsatisfied; and there was the ham melting away as rapidly; and there was the boy with his time wasted, and the yellow unctuous juices of the ham dripping from between his fingers; and there was money uselessly expended; and there was the unprovoked contumely of the ham-monger to be endured--forming altogether such a concatenation of provocatives as is rarely to be met with. And in this light Mr. Todd viewed the matter. So he wrapped up the greasy cause of all these miseries in a clean half-sheet of foolscap, and slipping it carefully into the breast pocket of his surtout, he set out for the ham-shop, determined to seek redress by stratagem, since it was not to be had otherwise, and at the same time procure something fit for a lunch, without incurring further expense. With this determination he went into the shop, where, it seems, he was quite unknown, and pointing to a beautiful and nicely-corned buttock of beef which stood on the counter, he quietly desired Mr. Cutmore to cut him a quarter of a pound of it in nice thin slices for a sandwich. Mr. Cutmore did as he was desired--he cut the beef in delicate slices, fit for the mouth of a princess, and wrapping them up in a clean piece of paper, he laid them down before Mr. Todd, rubbed his hands, and waited smilingly for the money. "Thank you, Sir," said the wily Mr. Todd, coolly thrusting the packet of cold beef into his breast pocket, and at the same time throwing the sweating packet of ham upon the counter,--"thank you, Sir! and there is your nasty _dab_ of ham in exchange for it!" And having so said, he stalked out of the shop, buttoning up his coat (to keep his beef safe), and exulting in the success of his stratagem. Mr. Cutmore stood aghast for a moment; and then, all hot as his own mustard, he sprung over the counter, rushed into the street--with the powder flying from his hair at every step, and his snow-white apron streaming in the wind--caught Mr. Todd just as he was popping through Temple-bar, seized him by the collar, and, without uttering a word, began dragging him back towards his shop, and at every step giving him a shake, just as a thorough-bred terrier shakes a half-expiring rat when it feebly resists his violence. The scuffle soon created a crowd, and some took one side, some the other; but the cook was too much for the Templar--he pulled him by main force into his shop, and kept him shut up in his larder till he paid the uttermost farthing! This was the case for the prosecution. Mr. Cutmore, in his defence, began by expatiating on the superior excellence of his ham in general, and on the slices sent to the complainant in particular. He had the honour, he said, of serving many gentlemen in the Temple exclusively with ham; and it was a well-known fact, that there were no better judges in existence. Mr. Todd's servant brought him word that the ham was _mighty_ (mite-y), and he returned him for answer, that he did not know what he meant by the word. The fact was, that the ham was as good as ever was cut, and Mr. Todd knew nothing about the article. He was ready to admit that Mr. Todd's statement was generally correct, but he conceived he was justified in treating him as he had done, inasmuch as he had carried off his beef without paying for it; and as to the ham pretended to be given in exchange for it, whether the said ham was good or bad, there was nothing to prove to him that it was bought at his shop. The magistrate thought Mr. Todd's _ruse de boeuf_ a very derogatory proceeding for a Templar; but as Mr. Cutmore had perhaps used more violence than was absolutely necessary in seeking redress, he recommended them to retire, and compromise their differences without further expense and exposure. Mr. Todd expressed his readiness to treat; but the angry cook refused his overtures with indignation, and the matter ended in his being bound in his own recognizance for his appearance at the Sessions, to answer any complaint that might be preferred against him. A HAGGLING CUSTOMER. A linen-draper was brought before the magistrate charged with having assaulted an Israelitish damsel--one Miss Rebecca Myers. The fair Rebecca (fair for one of her nation, though evidently not much addicted to the use of soap) stated with many tears, and a faltering voice, that she went into the defendant's shop to purchase some trifling articles; and because she objected to the price of some of them, he knocked her down with a roll of calico! When she said "knocked her down," she meant he gave her such a blow as _would_ have knocked her down if she had not stood firm; and not content with this, he jumped over the counter, and putting his great paws on her shoulders, he shook her till her head seemed ready to drop off at the top joint, and her brains were addled for an hour after. The magistrate expressed his surprise that a _linendraper_ should treat a lady so boisterously; and asked him what he had to say for himself. The linendraper--who, by the bye, had nothing at all linen-draperish in his appearance, but on the contrary had an aspect remarkably stern and solemn--replied, by stating many little vexations which he had suffered from Miss Rebecca--such, for instance, as ordering him to cut off a quantity of calico, and then refusing to have it--"haggling" customers, of her sort, were more trouble than a little; and enough to ruffle any man's temper; but as to what she had said about the knocking her down, and _all that_, it was a mere tissue of falsehoods. The very head and front of his offending, was "_frisking_" the calico at her, and threatening to send for a constable when she became abusive--"for abusive she was"--said he--"very abusive, though she looks so demure now." The magistrate said he did not understand the word _frisking_ as applied in this case, and ordered the ungallant linendraper to find bail for his appearance at the sessions. STEALING EX-OFFICIO. A sturdy, squalid little fellow, calling himself Timothy Blunt, was brought before the magistrate under the following circumstances:-- The landlord of a public-house in the neighbourhood of Temple Bar, deposed that the prisoner, Timothy Blunt, came into his house that morning, as he was busy serving his customers, and staring in his face for about a minute, addressed him with a--"I say, Mister!--I werrily believes as that ere's a _counterband bandanny_ as you've got round your neck--and as I'm a _necksizeman_, I shall seize it!"--And he instantly did so--to the utter dismay of mine host. "Show me your authority!" cried the almost strangled landlord; but he cried in vain--Timothy Blunt scorned to parley; and tearing off the bandanna, he was walking away with it in triumph, when mine host bethought himself "that it was a rummish sort of a _go_;" and, by the assistance of his customers, gave Timothy Blunt in charge to a constable. Timothy Blunt, in his defence, assured their worships that he was "a real _bony fidy_ excise officer; and that things were gotten to sich a pitch throughout the nation in the smuggling of _bandannies_, that he and his brother _off'sirs_ had strict orders to seize them wheresoever they lighted upon them--whether in pocket or on neck." "Let me see your authority," said the magistrate. "I knows of no law to obleege me to show it," said the sententious Timothy.--"I seizes the bandannies for the king and his _revenny_, and if I'm wrong, why let the king look to it. Besides, that ere authority cost me a matter of five pounds nineteen shillings; and I should be a fool to put it in _jipperdy_ by showing it to every man what asks for it!" The magistrate immediately committed him to take his trial for _stealing_ the bandanna; but nevertheless he marched off to gaol upon excellent terms with himself. A DISTRESSED FATHER. Henry Newberry, a lad, only thirteen years old, and _Edward Chidley_, aged seventeen, were full committed for trial, charged with stealing a silver tea-pot from the house of a gentleman, in Grosvenor Place. There was nothing extraordinary in the circumstances of the robbery.--Young Newberry was observed to go down into the area of the house, whilst his companion kept watch, and they were caught endeavouring to conceal the tea-pot under some rubbish in the Five-fields, Chelsea; but the case was made peculiarly interesting by the unsophisticated distress of Newberry's father. The poor old man, who it seems had been a soldier, and was at this time a journeyman paviour, refused at first to believe that his son had committed the crime imputed to him, and was very clamorous against the witnesses; but as their evidence proceeded, he himself appeared to become gradually convinced. He listened with intense anxiety to the various details; and when they were finished, he fixed his eyes in silence, for a second or two, upon his son, and turning to the magistrate, with his eyes swimming in tears, he exclaimed-- "I have carried him many a score miles on my knapsack, your honour!" [Illustration] There was something so deeply pathetic in the tone with which this fond reminiscence was uttered by the old soldier, that every person present, even the very gaoler himself, was affected by it. "I have carried him many score miles on my knapsack, your honour," repeated the poor fellow, whilst he brushed away the tears from his cheek with his rough unwashed hand, "but it's all over now!--He has _done_--and--so have I!" The magistrate asked him something of his story. He said he had formerly driven a stage-coach, in the north of Ireland, and had a small share in the proprietorship of the coach. In this time of his prosperity he married a young woman with a little property, but he failed in business, and, after enduring many troubles, he enlisted as a private soldier in the 18th, or Royal Irish Regiment of Foot, and went on foreign service, taking with him his wife and four children--Henry (the prisoner) being his second son, and his "darling pride." At the end of nine years he was discharged, in this country, without a pension, or a friend in the world; and coming to London, he, with some trouble, got employed as a paviour, by "the gentlemen who manage the streets at Mary-la-bonne." "Two years ago, your honour," he continued, "my poor wife was wearied out with the world, and she deceased from me, and I was left alone with the children; and every night after I had done work I washed their faces, and put them to bed, and washed their little bits o'things, and hanged them o' the line to dry, myself--for I'd no money, your honour, and so I could not have a housekeeper to do for them, you know. But, your honour, I was as happy as I well could be, considering my wife was deceased from me, till some bad people came to live at the back of us; and they were always striving to get Henry amongst them, and I was terribly afraid something bad would come of it, as it was but poorly I could do for him; and so I'd made up my mind to take all my children to Ireland.--If he had only held up another week, your honour, we should have gone, and he would have been saved. But now!----" [Illustration: A DISTRESSED FATHER.] Here the poor man looked at his boy again, and wept; and when the magistrate endeavoured to console him by observing that his son would sail for Botany Bay, and probably do well there; he replied somewhat impatiently,--"Aye, it's fine talking, your worship; I pray to the great God he may never sail any where, unless he sails with _me_ to Ireland?" and then, after a moment's thought, he asked, in the humblest tone imaginable, "Doesn't your honour think a little bit of a petition might help him?" The magistrate replied, it possibly might; and added, "If you attend his trial at the Old Bailey, and plead for him as eloquently in word and action as you have done here, I think it would help him still more." "Aye, but then _you_ won't be there, I suppose, will you?" asked the poor fellow, with that familiarity which is in some degree sanctioned by extreme distress; and when his worship replied that he certainly should not be present, he immediately rejoined, "Then--what's the use of it! There will be nobody there who knows _me_; and what _strangers_ will listen to a poor old broken-hearted fellow, who can't speak for crying?" The prisoners were now removed from the bar to be conducted to prison, and his son, who had wept incessantly all the time, called wildly to him, "Father! Father!" as if he expected that his father could snatch him out of the iron grasp of the law. But the old man remained rivetted, as it were, to the spot on which he stood with his eyes fixed on the lad until the door had closed upon him; and then putting on his hat, unconscious where he was, and crushing it down over his brows, he began wandering round the room in a state of stupor. The officers in waiting reminded him that he should not wear his hat in the presence of the magistrate, and he instantly removed it; but he still seemed lost to every thing around him, and, though one or two gentlemen present put money into his bands, he heeded it not, but slowly sauntered out of the office, apparently reckless of every thing[29]. SORROWS OF THE SULLIVANS. Mr. Daniel Sullivan, of Tottenham-court-road, green-grocer, fruiterer, coal and potato-merchant, salt fish and Irish pork-monger, was brought before the magistrate on a peace-warrant issued at the suit of his wife, Mrs. Mary Sullivan. Mrs. Sullivan is an Englishwoman, who, according to her own account, married Mr. Sullivan for love, and has been "blessed with many children by him." But nevertheless, she appeared before the magistrate with her face all scratched and bruised, from the eyes downward to the very tip of her chin; all which scratches and bruises, she said, were the handiwork of her husband. The unfortunate Mary, it appeared, married Mr. Sullivan about seven years ago; at which time he was as polite a young Irishman as ever handled a potato on this side Channel;--he had every thing snug and comfortable about him, and his purse and his person taken together were quite _ondeniable_. She, herself, was a young woman genteelly brought up--abounding in friends, and acquaintance, and silk gowns; with three good bonnets always in use, and black velvet shoes to correspond; welcome wherever she went, whether to dinner, tea, or supper, and made much of by everybody. St. Giles's bells rang merrily at their wedding; a fine fat leg of mutton and capers, plenty of pickled salmon, three ample dishes of salt fish and potatoes, with pies, pudding, and porter of the best, were set forth for the bridal supper; all the most considerablest families in Dyott-street and Church-lane were invited, and everything promised a world of happiness--and, for five whole years, they were happy. She loved--as Lord Byron would say, "She lov'd and was belov'd; she ador'd and she was worshipped;" but Mr. Sullivan was too much like the hero of his Lordship's tale--his affections could not "hold the bent;" and the sixth year had scarcely commenced when poor Mary discovered that she had "outlived his liking." From that time to the present he had treated her continually with the greatest cruelty; and, at last, when by this means he had reduced her from a comely young person to a mere handful of a poor creature, he beat her, and turned her out of doors! This was Mrs. Sullivan's story; and she told it with such pathos, that all who heard it pitied her--except her husband. It was now Mr. Sullivan's turn to speak. Whilst his wife was speaking, he had stood with his back towards her, his arms folded across his breast to keep down his choler, biting his lips, and staring at the blank wall; but, the moment she ceased, he abruptly turned round and, curiously enough, asked the magistrate whether _Misthress_ Sullivan had done _spaking_? "She has," replied his worship; "but suppose you ask her whether she has anything more to say." "I sholl, Sir!" exclaimed the angry Mr. Sullivan.--"Misthress Sullivan, had you any more of it to say?" Mrs. Sullivan raised her eyes to the ceiling, clasped her hands together, and was silent. "Very well, then," continued he--"will I get lave to spake, your honour?" His honour nodded permission, and Mr. Sullivan immediately began a defence, to which it is impossible to do justice; so exuberantly did he suit the action to the word, and the word to the action. "Och! your honour, there is something the matter with me!" he began; at the same time putting two of his fingers perpendicularly over his forehead to intimate that Mrs. Sullivan had played him false. He then went into a long story about a "_Misther Burke_" who lodged in his house, and had taken the liberty of assisting him in his conjugal duties, "without any lave from _him_ at all." It was one night in _partickler_, he said, that he himself went to bed betimes in the little back parlour, quite entirely sick with the head-ache. _Misther_ Burke was out from home; and when the shop was shut up, Mrs. Sullivan went out too: but he didn't much care for that, _ounly_ he thought she might as well have staid at home, and so he couldn't go to sleep for thinking of it. "Well, at one o'clock in the morning," he continued, lowering his voice into a sort of loud whisper; "at one o'clock in the morning, Misther Burke lets himself in with the key that he had, and goes up to bed--and I thought nothing at all; but presently I hears something come, tap, tap, tap, at the street door. The minute after, down comes Misther Burke, and opens the door, and sure it was Mary--Misthress Sullivan that _is_, more's the pity--and devil a bit she came to see after me in the little back parlour at all, but upstairs she goes after Misther Burke.--'Och!' says I, 'but there's something the mather with me this night!'--and I got up with the night-cap o' th' head o' me, and went into the shop to see for a knife, but I couldn't get one by no manes. So I creeps upstairs, step by step, step by step, (here Mr. Sullivan walked on tip-toe all across the office, to show the magistrate how quietly he went up the stairs,) and when I gets to the top, I sees 'em--by the _gash_ (gas) coming through the chink in the windy-curtains--I sees 'em; and 'Och! Misthress Sullivan!' says he; and 'Och! Misther Burke!' says she--and 'Och botheration!' says I to myself, 'and what will I do now?'" We cannot follow Mr. Sullivan any further in the _detail_ of his melancholy affair; it is sufficient that he saw enough to convince him that he was dishonoured; that by some accident or other, he disturbed the guilty pair, whereupon Mrs. Sullivan crept under Mr. Burke's bed, to hide herself; that Mr. Sullivan rushed into the room and dragged her from under the bed, by her "wicked leg;" and that he felt about the round table in the corner, where Mr. Burke kept his bread and cheese, in the hope of finding a _knife_. "And what would you have done with it if you had found it?" asked his worship. "Is it what I would have done with it, your honour asks?" exclaimed Mr. Sullivan, almost choked with rage--"Is it what I would have done with it!--ounly that I'd have _dagged_ it into the heart of 'em at that same time!" As he said this, he threw himself into an attitude of wild desperation, and made a tremendous lunge, as if in the very act of slaughter. To make short of a long story, he did not find the knife, Mr. Burke barricadoed himself in his room, and Mr. Sullivan turned his wife out of doors. The magistrate ordered him to find bail to keep the peace towards his wife and all the king's subjects, and told him if his wife was indeed what he had represented her to be, he must seek some less violent mode of separation than the _knife_. "WHERE SHALL I SLEEP?" Henry Walters, a tailor, was brought up from St. Martin's watch-house, to answer the complaint of Mr. Thomas Thompson, who is a tailor too--that is to say, they are two tailors; Mr. Thompson, the master, and Mr. Walters, the man--or, to speak more proverbially, the _servant_. Mr. Walters lodges on Mr. Thomas Thompson's premises, near Leicester-square, and at two o'clock in the morning, Mr. Thomas Thompson, being then fast asleep in bed with his wife, was awoke by some person on his side of the bed, leaning over him, and saying--"Be quiet;--can't you?" At the same moment Mrs. Thompson screamed, and said, "Tom Thompson, there's a strange man in the room!"--"What the devil do you want here?" exclaimed Mr. Tom Thompson--valorously jumping out of bed, and seizing the strange man by the collar. To which the strange man replied, by giving Mr. Tom Thompson a thump on the eye, and unseaming his shirt from top to bottom! This was strange treatment in one's own bed-room! But Mr. Tom Thompson kept his hold, Mrs. Thompson alarmed the lodgers, the lodgers called the watch, the watch came (with as much speed as they could,) and when they held their lanterns to the strange man's face--who should it be but this identical Mr. Walters! He had not "a word to throw at a dog," as one of the witnesses shrewdly remarked; and therefore he was at once consigned to the care of the watchman, who _bundled_ him away to the watch-house. Mr. Tom Thompson added, that his wife was so much alarmed at the circumstance, she was quite unable to attend this examination; but that she had told him she was awoke by some one squeezing her hand tenderly, and saying, as aforesaid, "Be quiet--can't you?" Mr. Walters was now called upon for his defence. But first it may be as well to say something of his person. He was young--say five-and-twenty; short in stature; by no means _fat_; parenthesis-legged; brush-cropped; nutmeg complexion; unvaccinated; scarlet-trimmed eyes; an Ashantee nose; and a mouth capacious enough to admit the biggest Battersea cabbage that ever was boiled-- "A combination and a form indeed, Where _everything_ did seem to set its seal, To give the world _assurance_ of a tailor!" We have been thus particular in describing the person of Mr. Walters, in order to show that he had no business whatever to be meddling with Mrs. Thompson, or with any other lady. And now for his defence:--"Please your worship, Sir," said he, "I have lodged in Mr. Thomas Thompson's house just one month next _Toosday_ week--I _think_ it's _Toosday_; but howsomever, that's neither here nor there. I'm a young man from the country, your worship; a tailor _by trade_; and so is Mr. Thomas Thompson--only he's a _master_, and I'm a _man_! (His worship smiled.) Last night, your worship, Sir, I met a _foo_ friends, and when I went home I had a great deal of trouble to open the street door--("No doubt of it," observed his worship)--and somehow or other, when I got in, instead of getting into my own room, I got into the yard: it's a sort of timber-yard: and there I was, poking about among the timber, please your worship--I'm sure for a good long hour, and I couldn't find my road out of it for the life of me!--and at last I found myself in Mr. Thomas Thompson's bed-room; but I'll be hanged if ever I touched his wife, or struck him; and I'll give you my honour that I did not go there intentionally." His worship had no faith in the _honour_ of Mr. Walters, and he was ordered to find bail for the assault, in default whereof he was handed over to the gaoler. BEEF VALOUR. James Green, alias _Jemmy Green_, a short, squat, spherical-phizzed, poodle-pated, seedy subject--between a buck and a bumpkin, said to be the identical hero of the Moncriefian, Adelphian, Tom and Jerry-extinguishing, nondescript gallimaufry, yclep'd "_Jemmy Green_ in France;" and Launcelot Snodgrass, were brought up from the almost bottomless pit of St. Clement's watch-house, charged with sundry midnight disorders in an alamode beef-house; and also with an outrageous assault upon Edmund Speering, Esq., of New Inn, and divers other persons--subjects of our Sovereign Lord the King. It appeared by the evidence of the said Edmund Speering, Esq., that as he was passing through Clare-court, between one and two o'clock in the morning, he heard a great row and uproar in Thomas's alamode beef-shop--the shrill voices of women in distress, and the hoarse clamour of numerous throats masculine. Hearing this, he looked towards the said shop, and saw through the beef-besteamed windows and the salads three or four men, and as many women, in personal conflict with each other; and, like a true knight, he rushed into the midst of the affray, demanding of the distressed damsels whether or not they wished to be rid of their unmanly opponents? They answered in a joint and corporate voice--"Oh! yes, we do!" Whereupon the said Edmund seized one fellow by the nape of the neck, and another by the waistband of his breeches, and with pith and power propelled them from the premises. This accomplished, he turned to seize the others; when _Jemmy Green_, who appeared to be the most violent among them, seized the said Edmund by the collar, and strenuously endeavoured to floor him; but it would not do--Jemmy Green was out-done both in length and strength, and was compelled to give way before the superior pith of his adversary; and just as Jemmy was flung headlong from the door, Launcelot Gobbo--we beg his pardon, Launcelot Snodgrass, struck the conquering Edmund a blow on the back of his head with an umbrella, and laid him horizontally on the floor. But Edmund rebounded to the perpendicular in an instant, and was preparing to renew the combat, when the watch came up, and Jemmy and Launcelot were both carried off to the watch-house as contemners of the public peace. The magistrate asked how this disgraceful uproar began. The landlady, and her barmaid, and Nicholas the waiter, all gave evidence on that part of the subject; and it appeared, by their account, that Jemmy Green, Launcelot Snodgrass, and two other gentlemen, came in late, and full of gin, and ate alamode beef in such quantities, that at length the spicery of the beef, the gin, and the beer, concocting together, produced a fume which got the better of what little sense they carried about them, and made them all agog for what "the Fancy" calls a "_spree_." In this state they rushed into the privacy of the bar, upset the salads, insulted the mistress, milled the waiter, and demolished the barmaid's head gear. It was at this juncture the above-mentioned Edmund came to their relief; and the barmaid swore positively that Launcelot not only knocked down the said Edmund with his umbrella as aforesaid, but that he also "knocked her down up a-top of him," and how she got off again she did not know. The accused were called upon for their defence; and Jemmy Green made the first essay; but, unfortunately for him, the fumes of the commingled gin and hot-spiced beef had not entirely evaporated--his brain seemed clogged with beefy vapour, notwithstanding the unctuous dews which distilled copiously from his forehead, and he found it impossible to make any defence at all. So he was ordered to find bail for his appearance at the Sessions, and he waddled out of the office under the superintendence of the turnkey. Launcelot then addressed himself to speak; and to the astonishment of all the witnesses, he smilingly denied--firstly, that he had ever been in the house at all; and secondly, that he ever in the whole course of his life carried an umbrella--_ergo_, he could neither have been there, nor could he have knocked the said Edmund down with an umbrella, as falsely alleged by Mary Mulready, the barmaid. He admitted having witnessed the affair from the court; and that, though prudence "bade him budge, he budged not"--like his prototype, honest _Gobbo_, he scorned running with his heels, and so he remained looking on, till he was seized by a watchman and conveyed to durance. In proof of this, he called a gentleman, his friend, who was present with him; and this gentleman said, "every word, what Mr. Launcelot Snodgrass speaks, is true as possible." But this worthy witness, unluckily for Launcelot, admitted that he himself was very drunk at the time, and also that he had an umbrella in his hand; and the magistrate--being of opinion that Launcelot might have _borrowed_ this umbrella for the purpose of knocking down the aforesaid Edmund Speering, believed all that the witnesses had said, and ordered Master Launcelot to find bail also. Whereupon he was handed over to the turnkey, who instantly locked him up with his friend Jemmy Green. JEMMY LENNAM AND THE JEW. Mr. Nathan Nathan, a slender, shapely, shewily-clad Israelite--"a tall fellow of his hands," but having only "a younger brother's having in that ancient Jewish indispensable--a beard;" thereby seeming to signify that he was, as yet, scarcely arrived at years of discretion, was brought up among a squad[30] of disorderly Christians from Covent-garden watch-house, and charged with having created a disturbance in Drury-lane theatre on the preceding night; and also with having assaulted Jemmy Lennam--time out of mind, Old Drury's little-wigg'd, big, old watchman. It appeared by the testimony of the aforesaid Jemmy Lennam, that after the performances were over, "and the company had well nigh all departed dacently to their beds," this Mr. Nathan Nathan came into the hall, "brim-full of the cratur, and _coming the gentleman_ over the folks, according to the present blackguard fashion;" that is to say, by manifesting a supreme contempt for the _genteel_, insulting the women and making as much noise as he could, just to show that he considered himself quite _at home_ anywhere and everywhere. So much for generalities, as Jemmy Lennam said; and then for particularities, he pretended to be _mighty swate_ upon every modest woman that came out, obstructed the free passage of the company, mocked the servants when they called the coaches, put the said servants upon a wrong scent, and out-roared the loudest link-boys in bellowing "coach _on_-hired!" Jemmy Lennam bore all this with a not-very-easily-suppressed indignation; and at last, when he could bear it no longer, he "just took a civil twist of the young gentleman's cravat," and handed him over to some of the patrol; but as he was doing this, he received "two hard strokes on the right cheek-bone from the fist of him." This was the substance of Jemmy Lennam's charge, and the patrol bore him out in it as far as they were concerned in the matter. Mr. Nathan Nathan, in his defence, declared upon his honour, that Jemmy Lennam was the first aggressor--by refusing to let him wait in the hall for "the party of ladies and gentlemen to whom he _belonged_!" and by calling him "a Jew pickpocket!" and he appealed to the "gentlemen of the patrol," whether he did not place himself under their protection from Jemmy Lennam's _wiolence_. "The gentlemen of the patrol" said they heard a great noise in the hall, and going to see what it was about, they found Jemmy Lennam's fist locked in Mr. Nathan Nathan's collar, and Mr. Nathan Nathan's fist working away at Jemmy Lennam's face--and that was all they had to say in the business. So Mr. Nathan Nathan was ordered to find bail, and a pair of Holywell-street vendors of seedy[31] apparel became his sureties. WOLF _versus_ WELLDONE. Mrs. Winifred Welldone, widow, of Monmouth-street, Seven Dials, was charged with having assaulted Mrs. Mary Wolf of the same place, spinster. Mrs. Wolf, as her name would seem to signify, is bony and gaunt, and grim--a lady of most voracious aspect, and much more like an assault_er_ than an assault_ee_. But the proverb saith--"judge not by outward appearances--they too often prove deceitful;" and they did so in this case; for Mrs. Welldone was so overdone with fat--so round, so soft, so puffy, and so short withal, that nobody would have supposed her capable of bruising even a pound of butter; and yet she contrived to give Mrs. Wolf a black eye! How she had reached so high as the eye of Mrs. Wolf, was matter of wonder to everybody; for she was by no means well made for jumping, and Mrs. Wolf was nearly double her height. It appeared by the evidence adduced on both sides, that Mrs. Welldone occupies a house in Monmouth-street--that far-famed street which is sometimes, though _maliciously_, yclep'd "_Rag_-fair." Here she carries on a thriving trade in the "_translating_ line,"--that is to say, she employs sundry ingenious craftsmen in translating _old shoes_ into new ones--an art that will be dignified to all posterity, as being that art by which the patriot PRESTON procured _bub_ and _grub_[32] for his family. These shoes, thus translated, or "revivified," Mrs. Welldone sells at a small profit to those persons, and they are not a few, whose destinies forbid them to purchase their shoes of the shoe-_maker_. Beneath the shop, or parlour, in which she carries on this trade, she has two cellars--_under-ground apartments_ she calls them, and perhaps it is the _genteeler_ term; and it was these two cellars, or under-ground apartments, that brought her in contact with Mrs. Wolf. Mrs. Wolf is of a profession nearly allied to _translating_, only she operates upon gowns, and petticoats, and "_chemises_," instead of _shoes_.--As Robert Burns would say, "----She--wi' her needle and her shears, Gars auld claes look amaist as weel's the new." Now it so happened that Mrs. Wolf was in want of a place in which to vend the garments she thus redeems from the jaws of the paper mill; and wandering along Monmouth-street, in search of some such place, she saw the under-ground apartments of Mrs. Welldone. They were to let, she liked them vastly, and she became Mrs. Welldone's tenant--with an express stipulation between them that Mrs. Welldone should stick to her _shoes_, and Mrs. Wolf to her _shifts_, &c.; so that neither of them might at all interfere with the trade of the other. Mrs. Wolf took possession of the under-ground apartments that same evening; but it would appear that she had more of the fox in her composition than the wolf, for she was no sooner safely housed, or _cellar'd_, than she broke the agreement, by making a grand display of translated shoes all around the sill of her cellar window. "Is this well done, Mrs. Wolf?" cried the astonished Mrs. Welldone--"if you don't take them away this moment, I'll kick them all down upon your false head!" Mrs. Wolf looked up from her subterranean abode, and grinned defiance--like the wolf that General Putnam pulled out of the cavern by his tail whilst the people pulled the General out by his hind leg. Mrs. Welldone repeated her threat of kicking down the shoes, and Mrs. Wolf grinned again, and told her she would _ramshackle_[33] her if she did. Then Mrs. Welldone, not having the fear of _ramshackleing_ before her eyes, swept the shoes into the cellar-hole upon the false head of Mrs. Wolf, and Mrs. Wolf emerged from her cavern amidst the cloud of flying shoes, "her soul in arms and eager for the 'fray." Mrs. Welldone gave back when she saw her, and it was well she did; for Mrs. Wolf came on like a tigress, as all the witnesses averred, and they thought it a miracle (_à-la-Hohenlohe_) that she was not torn to bits at the first rush. Mrs. Welldone, however, was not the woman to _back out_ of anything--she concentrated her powers--her eyes flashed like diamonds in dough, Mrs. Wolf closed upon her, they wrestled together like Death and the Dumpling, and when they were dragged apart by the bystanders, Mrs. Wolf's right eye was in mourning. This was all the witnesses could say about the matter, and the magistrate told Mrs. Welldone, she had done ill in committing the first assault. "I admit it, your worship," said Mrs. Welldone, "but it was enough to make any woman mad to have the bread taken out of one's mouth by _stratygim_ in that manner. _Howsever_, I don't know that I should have minded _that_ so much if she had not _undersold_ me." "Sold _under_ you, you mean," said his worship--"If you sold in the parlour, and she sold in the cellar, she sold under you, of course." "Aye, _coarse_ enough, your worship, and a coarse piece of goods she is--look at her which way you will," rejoined Mrs. Welldone. Well versed as Mrs. Welldone was in mending the _understandings_ of others, she herself, had not understanding enough to take this pun. His worship decided that they had both been much to blame; and he ordered the warrant to be suspended _in terrorem_ over Mrs. Welldone, and recommended Mrs. Wolf to seek other cellars as soon as possible. MR. O'FLINN, AND HIS FRIEND'S MISTRESS. Miss Susanna Smith, a very pretty young woman, attired in the newest fashion, was brought before the magistrate, on an assault warrant issued at the suit of one Mr. O'Flinn, a tall, well-dressed, sprightly native of the Emerald Isle, who had complained to his worship that he had been grievously assaulted by the said Susanna. Mr. William O'Flinn, it seems, had a friend, who is the especial _protector_ of the fair defendant. He went the other night, to deliver a letter to this friend, at the house in which Susanna resides. His friend was not at home, but he saw Susanna, and she--totally laying aside the delicacy of her sex, "and all the rest of it"--gave him one of the most scurvy receptions imaginable; viz., he was standing in the hall, inquiring at the landlady for his friend, when suddenly the parlour door opened, and out rushed Susanna with the velocity of a nine-pounder--"And pray what would you be after wanting with that gentleman?"--she asked, at the same time attempting to snatch the letter from Mr. O'Flinn's hand. "It isn't yourself that the letter is for at all, my jewel," replied Mr. O'Flinn, slipping the letter into his pocket--"and as for what I want with that gentleman, you have no right to be asking me the question." "'Faith, we'll see that," said the lady, and instantly placed her fair back against the front door, evidently with the intention of cutting off Mr. O'Flinn's retreat. Well, what was to be done now? It was growing late, and as Mr. O'Flinn very justly observed, if he was detained there he could not go elsewhere. So, after trying what remonstrance would do, and finding it had no effect whatever, he took hold of the fair hand of the lady and endeavoured to remove her from the door by a little gentle force; but, to his utter astonishment, she instantly disengaged her hand, and in the twinkling of an eye, as it were, he received two or three sound boxes on either ear, and a kick on the abdomen, which for some moments materially interfered with his faculty of breathing. Astonished that a lady should _kick_, but nothing daunted, he again advanced to the attack, or, Corinthianly speaking, to the _scratch_, taking care, this time, to advance in an attitude of defence--_à-la-Spring_. His caution was useless, however, for the lady broke through his guard in an instant, boxed his ears again soundly, or rather _soundingly_, and planted another kick on his _bowel-case_, with her dexterous little foot, in the self-same spot as before! This was an extremely awkward bit of business, and Mr. O'Flinn felt it so. He could not, consistently with his character as a gentleman, and an Irish gentleman in particular, use greater violence to a lady; and he might have gone on, as before, till he had not an ear left for her to box, or a pair of trowsers for her to kick. He, therefore, declined coming to the _scratch_ again; and contented himself with calling upon the comely landlady of the dwelling, who all this while had been quietly holding the candle for them. He peremptorily told her commodious landladyship, that unless he was instantly suffered to go about his business, he would consider himself as detained by her connivance, and have his action against her for false imprisonment accordingly. This produced the desired effect--the landlady interfered, a parley ensued, and at last Mr. O'Flinn was liberated. In support of this statement Mr. O'Flinn called the landlady aforesaid. The landlady (an immense personage) declared she saw neither kicks nor slaps. Miss Susanna certainly put her back against the door to prevent Mr. O'Flinn from going, until she knew what he wanted with her _friend_; and a sort of scuffle took place in consequence; and that was all she knew about it. Here Mr. O'Flinn lifted up his bands and eyes in astonishment; for, as he said, the landlady held the candle to them all the while, and could not avoid seeing every bit of it. The magistrate now asked Miss Susanna what _she_ had to say to it? The poor girl told a sad tale. She first burst into tears, and for some seconds was unable to speak. She then spoke of her former respectable and happy situation in life before she became what she now is--a kept-mistress. "But," said she, "Mr. ---- has promised to marry me, and I trust in heaven he will!" Here she wept again, and was proceeding to make some further general remarks, when the magistrate desired her to confine herself to the charge of having assaulted Mr. O'Flinn. She then admitted having prevented Mr. O'Flinn's departure from the house, and said she was induced to do so, because she verily believed he came with the intention of injuring her in the opinion of the only friend she had in the world--Mr. ----, her _protector_. As to the kicking, &c., she denied it; though not very positively. She was ordered to find bail for her appearance at the Sessions, and Mr. O'Flinn said he should certainly prosecute her; but the magistrate told him he thought it would be better to let such an affair pass over without further notice. JONAS TUNKS. Mr. Jonas Tunks, a young gentleman in a jacket of divers colours, well-patched canvas trowsers, no stockings, and shoes curiously contrived to let in the fresh air at the toes, was brought before the sitting magistrate, charged, under the Stat. 1 Geo. IV., with wilfully and maliciously damaging the property of Mrs. Deborah Clutterbuck--the comely landlady of a public-house in the purlieus of St. Giles's proper. It appeared by the evidence of Mr. Jonathan Dobbs, an operative veterinarian (_vulgo_, a journeyman farrier), that Mr. Jonas Tunks, who is a wandering melodist (_vulgo_, a ballad-singer) by profession, went into the public-house in question, where Mr. Jonathan Dobbs, and several other gentlemen, were taking a _déjeûner à-la-fourchette_ of sheep's-head and pickled cabbage. He entered the room singing, at the very top of his voice, the favourite _aria_, "Oh, Judy! my darling!" and one of the gentlemen politely desiring him to shut his potato-trap, and not make such a noise, he seized a pint of _heavy_ and drank it off to the gentleman's better manners. The gentleman to whom the _heavy_ belonged, now swore that Mr. Jonas Tunks should _post the blunt_ for it--that is to say, he should pay for it. But Mr. Jonas Tunks would do no such thing--"Base is the slave that pays!" he exclaimed; and immediately called for "a quartern of gin of three outs," with which he offered to treat--or as a Corinthian would say,--to "_sluice the ivories_" of the gentlemen present. The gentlemen, however, would not accept his treat, and "Turn out the blackguard!" was the universal cry; but Mr. Jonas Tunks was awake to the "_spree_," and before his enemies could say "Jack Robinson," he capsized three pots of _heavy_, scattered the pickled cabbage upon the floor, and very nearly _bolted_ with the better half of a sheep's face! But, unfortunately, just as he was clearing the threshold of the door, he received the well-shod foot of the veterinarian in the rear, about seven inches and a half below the waistband of his trowsers, and the concussion sent him half across the street, without once touching the pavement! The veterinarian and his friends, nothing doubting but Jonas was done with, laughed aloud, and returned into the house; but Jonas was not the man to walk off quietly under this dishonourable visitation of tanned calfskin, and before their shout of laughter was over, he had dashed six panes of glass to pieces in the front window of the house--or, to use a very expressive Eganism he had _milled the glaze_ gloriously! He was immediately overpowered with numbers, and handed over to the strong grasp of the Police. [Illustration: JONAS TUNKS.] The magistrate having heard the complaint (for the valiant Jonas scorned to say a word in defence) immediately sentenced him, under the statute above-mentioned, to pay the value of the glass he had broken--viz. twenty-five shillings; and in default of so doing, he was consigned to three months' imprisonment in Bridewell. Now really this was a very ill-natured prosecution against Mr. Jonas Tunks; for, after all, what was his offence but a trifling matter of "_back slum_" Corinthianism?--as the great chronicler of _Life in London_ would phrase it--a mere trifling ebullition of vitality--a slight manifestation of those lively principles which constitute a true "Corinthian," whether in Dyott-street or Pall mall. MISS HANNAH MARIA JULIANA SHUM AND HER BEAU. There was a damsel--one Miss Hannah Maria Juliana Shum, charged by the books of Covent Garden watch-house, with having robbed a young gentleman of a golden sovereign. The young gentleman made such a pathetic appeal against the publication of his name--being, as he said, "a young man just verging into the affairs of the world," that we shall content ourselves (and our readers also, we hope) with saying, he was simply a young gentleman of little person--and that little made the most of, _secundum artem_; that is to say, the boot-maker had lengthened him at one end, and the hair-dresser at the other; whilst his tailor had done all, that padding could do, to increase his bulk longitudinally. The damsel--Miss Hannah Maria Juliana Shum, was not the purest damsel in existence perhaps--certainly not the purest in attire; and her face, pretty as it was, would have been all the prettier for a commodity of soap and water. But in describing the persons of this rather ill-matched pair, we shall forget their adventures. They were thus then:-- The young gentleman left his home on the preceding night with the intention of going to the play, but in his way thither he met Miss Hannah Maria Juliana Shum. And she looked at him from under her black arched eye-brow with such a look as he could in no wise resist. Now, since he could not resist, he should have turned his back and fled; but instead of flying he stood still, and asked her how she did. She replied, that she should be very well if she was not so very cold; and sighing deeply, she added, "Oh! what a delightful thing is a glass of nice hot brandy-and-water on such a piercing night as this!" Here was a direct appeal to the young gentleman's generosity, and gallantry, and all that sort of thing, and everything in the world almost; and he could no more resist the appeal than he could the sparkling of her jet-black eye. So he gave her his arm and his heart together, and looking round, he saw the words "Fine Cognac Brandy, neat as imported," staring him full in the face from the windows of a tavern, most opportunely opposite. What was to be said for it? Nothing at all. In his opinion the brandy-and-water was inevitable, and they went into the tavern and drank a glass; and so delightful did they find it, that they had another, and another, and another. But still, as Miss Hannah Maria Juliana Shum poetically remarked-- "The sweetness that pleasure has in it, Is always so slow to come forth," --that they had another glass or two to help it to come forth faster, and it did--to such a degree, that the young gentleman took up the song and sang-- "As onward we journey, how pleasant, To pause, and inhabit awhile These few _gassy_ spots, like the present, That 'mid the dull wilderness smile[34]!" By-and-by two other ladies, friends of Miss Hannah Maria Juliana Shum's, dropped in, and the gentleman insisting upon it, they also had some glasses of hot brandy-and-water, which they also found very delightful. In short, they were all so jocund, that at length the gentleman made up his mind to make a night of it:--"But first," said he, "I should like just to step home and tell them not to sit up for me."--"Tell the devil!" exclaimed Miss Hannah Maria Juliana Shum--"that's all a _hum_; for if you goes away you'll not come back again." The gentleman was shocked; but his love was not shaken, and he pledged his honour that he would return. "_Honour_ is all my eye," said the gentle Juliana Shum?"--pledge your _honour_ indeed!--will you pledge a _sovereign_?"--"I will!" said the gentleman; and he did--for, as we have already stated, he was a _young_ gentleman. The ladies waited his return because they were not remarkably well able to go, in consequence of the cogniac. How they amused themselves during his absence did not appear, but when the gentleman returned, he very _naturally_ expected the return of his sovereign; and the ladies very _naturally_ knew nothing about it; whereupon the young gentleman's love exploded, with a bounce; and his love being all gone, he was ungallant enough to send his once-loved Miss Hannah Maria Juliana Shum, all brandy-begone as she was, to the watch-house. During the night, however, he repented himself of his cruelty; and he now told the magistrate that he did not wish to prosecute her. "I am a young man," said he, "just verging into the affairs of the world; and a business of this kind has such an ugly look with it, that I shall be much obliged to you, Sir, if you will let the lady go, and I am sure she is very welcome to keep my sovereign." The gentle Juliana, seeing matters in this comfortable train, ventured to tender the gentleman his sovereign again, which he as tenderly refused; and then the magistrate dismissed them both with a rather untender admonition. ROEBUCK _versus_ CLANCEY. Mr. Timothy Clancey, landlord of the Robin Hood public-house in Holborn, appeared before Thomas Halls, Esq., to answer the complaint of Mrs. Penelope Roebuck; a fine, bouncing, well-dressed dame, fat, fair, and forty. She had her left eye in deep mourning; and he had as many black patches on his face as the renowned Munchausen. "May it please your worship," said Mrs. Penelope Roebuck, wiping her comely cheeks and bruised eye with a lavender-scented cambric handkerchief--"May it please your worship, I am Mrs. Roebuck, the wife of Mr. Roebuck, of Somers Town; and yesterday I walked all the way from Chelsea, which very much fatigued me, as your worship may suppose; and being fatigued, I went into Mr. Clancey's, for I had always understood Mr. Clancey to be a mighty nice sort of a man. 'And pray, Mr. Clancey,' said I, 'would you have the goodness to make me sixpenn'orth of brandy and water, warm, with a little sugar in it?' 'No, _mem_,' said he, 'it is not in my power to make sixpenn'orth of brandy and water--the _dooties_ are so high; but you may have eightpenn'orth. 'Very well,' says I, 'it's quite _himmyterul_; make me eightpenn'orth.' With that, your worship, he made me a very nice glass of brandy and water, and I sat myself down to take it by little and little; for I'm not a person _what's_ given to take my liquor by lumps; but I had scarcely wetted my lips, when he took a very improper liberty--such a liberty, your worship, as I suffers no man to take with me, be he whomsoever he may; and, 'Mr. Clancey,' says I, 'I shouldn't have thought of it from such a _fellur_ as you.' I might have said something else, your worship, but that's neither here nor there; Mr. Clancey, without saying another word, good, bad, nor indifferent, _had the goodness_ to come out of his bar, and, turning my two hands behind my back, he _conducted_ me out of the house, and _had the goodness_ to fling me down on the hard pavement!--by which _purlite_ behaviour my eye was blacked, as you see, and my dress, worth at least five pounds, completely _remollished_. Mr. Timothy Clancey, mine host of the Robin Hood, in his defence, said, Mrs. Roebuck, whilst drinking her brandy and water, abused his wife so grossly, that he firmly, but civilly, desired her to leave the house; but he had no sooner done so, than she flung the goblet, she was drinking from, in his face. The goblet struck him full on the nose, by which it was shivered to pieces, and his nose and face sadly cut. In proof of these premises, he produced the broken goblet, and pointed to the black silk patches, which almost covered his countenance. "I then, and not till then," said he, "laid hands upon Mrs. Roebuck, and thrust her out of my house--and that, I assure your worship, was the only _liberty_ I took with her." Mrs. Roebuck did not attempt to rebut this statement, and the warrant was discharged. PIG WIT. This was a proceeding _in limine_, by which the plaintiff sought reparation for violence done to his religious scruples and bodily health, by the act of the defendant; inasmuch as he, the plaintiff, being a _Jew_, the defendant, on Wednesday, the twelfth of that present December, at eleven o'clock in the forenoon, in the parish of St. Paul, Covent Garden, did, with malice afore-thought, knock him down with a _pig's head_, contrary to the statute, and against the peace of our Sovereign Lord the King, his crown and dignity. Both plaintiff and defendant pleaded each for himself; no counsel being retained on either side. Ephraim Ephraim deposed, that he was by profession an orange merchant, carrying on his business in Covent-garden Market; that the defendant, Richard Stewart, was a dealer in pork and poultry in the said Market; and that he, the said Richard Stewart, on the day and hour above stated, did thrust a "_pig's face_" against his cheek with such violence, as to throw him backwards into a chest of oranges, whereby he sustained great damage both in mind, body, and merchandise. Plaintiff stated, moreover, that he had previously, and on sundry occasions, forewarned the said Richard that it was contrary to the tenets of his religion to come in contact with pork; and yet, nevertheless, the said Richard did frequently, and from time to time, obtrude pork upon his attention, by holding it up aloft in the market, and calling to him--"Ephraim! will you have a mouthful?" All this, he humbly submitted, betokened great malice and wickedness in the said Richard, and he therefore besought the magistrate to interpose the protection of the law in his behalf. The magistrate observed, that he was astonished a person of Mr. Stewart's appearance and respectability should be guilty of such conduct; and having explained to him that the law afforded equal protection to the professors of every religion, he called upon him for his defence. [Illustration: PIG WIT.] "May it please your worship," said Mr. Richard Stewart--an elderly, well-fed man, of a jolly and pleasant countenance--"May it please your worship, I keeps a stand in Covent-garden Market, and have done so any time these ten years; and Mr. Ephraim's stand is next to mine. Now, your worship, on Wednesday morning I'd a hamper o' pork up out o' Hertfordshire; and so I opened the hamper; and, at the top on it, lay a nice head; off of as sweet a pig as ever suck'd; and I takes the head, and holds it up; and, says I, 'Here's a bootiful head!' says I. 'Did ever any body see such a handsome un?'--And sure enough, your worship, it was the most bootiful as ever was; and would have done anybody's heart good to see it--it was cut so clean off the quarter (drawing his finger slowly and scientifically across the brawn of his own neck,) and was so short i' the snout, and as white as a sheet it was, your worship; quite remarkable handsome. And so I said, says I, 'Look here! Did ever anybody see sich a picture?' holding it up just in this manner. With that, 'Ah!' says Mr. Ephraim, says he, 'now my dream's out--I dreamt last night that I saw two pigs' heads together, and there they are!'--meaning my head and the pig's head, your worship. Well, I took no notice o' that, but I goes me gently behind Mr. Ephraim, and slides the pig's head by the side of his head, claps my own o' the other side--all a-row--with the pig's i' the middle, your worship; and says I to the folks, says I, 'Now, who'll say which is the honestest face of the three?' With that, your worship, all the folks fell a laughing, and I goes myself quietly back again to my stall. But poor Ephraim fell in such a passion!--Lord! Lord! it were a moral to see what a pucker he were in!--he danced, and he capered, and he rubbed his whiskers--though I verily believe the pig's head never touched him--and he jumped and fidgeted about all as one as if he was mad, till at last he tumbled into the orange-chest, your worship, of his own accord, as it were; and that's the long and short of it, your worship, as my neighbours here can specify." His worship having listened attentively to these conflicting statements, decided that the defendant had acted indecently in insulting the religious feelings of the plaintiff; though, at the same time, the affair was hardly worth carrying to the sessions, and therefore he would recommend the plaintiff to be satisfied with an apology. The defendant expressed the greatest willingness to apologise--"For," says he, leaning over the table, and sinking his voice to a whisper, "I asked another Jew what could make Mr. Ephraim in such a passion, and he told me, your worship, that if you get a rale Jew and rub him with a bit o' pork, it's the greatest crime as ever was." Plaintiff and defendant then retired, and the matter was compromised. [Illustration] AN IRISH TAILOR. Edward Leonard was charged with having assaulted Mary, the wife of Thomas Reid. This was a watch-house charge, and appeared to have originated thus:--Mr. Leonard lodges in the house of Mr. Reid, and like most of his countrymen of the like class, he is given to imbibing more beer than his brains will bear. This seems to have been the case with him on Saturday night, for he came home at a most unseasonable hour, and because Mr. Reid would not get up and light a candle for him, he most unconscionably threatened to fracture his skull, break his back, and put his nose out of joint. Now Mr. Reid is a quiet, harmless, little man, and, being at that time warm and comfortable in his bed, he thought it best to lie still and take no notice. But Mrs. Reid--knowing Ted Leonard's furious propensities, and fearing he would really attempt to do some one or other of those things he had mentioned--got up to remonstrate with him; and in so doing she was rudely pushed about by Ted Leonard, who talked of the liberties he ought to be allowed as a lodger. The d----l a bit he cared for the whole house put together, he said; and, if it was not for the trouble of it, he would make every man and woman in the place fly out of the top of the chimney! And still he kept calling upon poor Mr. Reid to get up and have his nose put out of joint; and he made such a tremendous hubbub, not only in the house, but in the whole neighbourhood, that at last, by common consent, he was sent off to the watch-house. The poor woman was either so unwell, or so much agitated, whilst she was telling this story, that the magistrate ordered her a chair, and Mr. Reid himself was pale as death with fear! but nevertheless they both said they had no wish to proceed in the business--all they wanted was to be allowed to sleep more quietly in future. As for Teddy Leonard himself, he seemed perfectly at his ease, though he was in wretched case for so high-spirited a person! His principal garment had doubtless done good service to at least a dozen proprietors in succession, his inexpressibles (drab _slacks_) were napless, grease-spotted, and ventilated at the knees; and he had only one shoe--but then he had plenty of black eyes, and his large small-pox-indented cheeks were very handsomely overlaid with a fret-work of scratches. When Mr. and Mrs. Reid had said all that they had to say, he never attempted to reply; but stood lounging against the bar, sucking his teeth and twirling his hat, until the magistrate called upon him for his defence, and thereupon ensued the following colloquy:-- "What have you to say to all this, Mr. Leonard?" "Humph, I don't know! they've served me pretty tidy going along, I think, punching at me with their shilaleghs as they would at a woolsack!" "Perhaps you did not go along quietly?" "No, 'faith, I wasn't likely, for I was thinking of going to bed at that time; and there's no fun in being pulled away to a watch-house when a man's thinking of going to bed." "What are you? what is your trade?" "My trade?--why I'm a tailor--the more's my luck!" "Please your worship," said one of the watchmen--seemingly quite surprised at finding he had had so much trouble with a _tailor_--"please your worship, as we were taking him to the watch-house, he took up his fist and knocked me down like a bullock!" "Are you the man that poked your stick in my eye?" said Teddy Leonard--turning very leisurely to the speaker--"When a watchman had hold of the two sides of me, each of 'em fast and sure; there was he jumping before me, and poking his stick at me like a cock sparrow. Och! but I wish I know'd you when I see'd you this morning!" "Well, you know him now," said the magistrate. "Know him!" replied Teddy Leonard--"not I faith, for it's a disgrace to be after knowing such a consarn; and by the same token, your worship, he, or some of the rest of 'em, pocketed my shoe that night--and I hav'n't got it since, but another." "But how came you to alarm these honest people in the way you have done?" said the magistrate--"have you a wife of your own?" "No, indeed--nor like to have; for I'm quite alone, and comfortable." "Well, then," said his worship, "we must endeavour to make you let other folks be as comfortable as yourself, by calling upon you to find securities for your keeping the peace in future." "Very good, your worship--that's all very right--and I dare say I'll keep the peace longer nor the peace keeps me," replied comfortable Teddy; and so saying he followed the jailer to his uncomfortable apartments. BOX-LOBBY LOUNGERS. Among the watch-house rubbish brought before the magistrate one morning, were three of that description of _bipeds_ commonly called "_Lobby Loungers_," or "Box-Lobby-loungers," or "Half-and-half swells;" that is to say, half sharp and half flat--half a bottle and half price, half bully and half boor--in plain terms, idle young men, with empty heads and full stomachs; who, in all the magnificence of a full pint of cape, strut into a theatre at half price, and manifest their gentility by swaggering from box to box, pinching the strumpets, d----g the box-keepers, and annoying the sensible part of the audience as much as they dare. Our three prisoners strutted into the box department at the English Opera-house, on the preceding night, at half price, and _half seas over_--whether with cape, black strap, or blue ruin, did not appear. Two of them were _particularly half seas over_, viz.--Mr. Bob Briggs, and Mr. Simeon Buck;--the other, Mr. Frederic William Diggles, was but so so. They first addressed themselves to the dress circle, when Mr. Bob Briggs, a slight-made, half-grown, flaxen-haired youth, instead of waiting for the box-keeper to open the door of the box in which he wished to make his _début_, set about kicking it with all his might. What gentleman of spirit would waste his breath in bawling for a box-keeper, when his own foot, well applied to the door, must inevitably compel the "spooneys" within to open it?--And so it turned out; some of the quiet ones within, hearing such a magnificent thundering, did open it; and Mr. Bob Briggs was just setting himself to make his _entrée_, room or no room, when one of the box-keepers came up and assured him the box was full, at the same time endeavouring to close the door again. "What d'ye mean by that, ye _rascal_!" cried Mr. Bob Briggs, "is that the way to treat a _gentleman_?" "Sir," said the box-keeper, "I mean no offence, and if you will walk this way I will endeavour to find you a seat upstairs." "Up stairs be d----d!" retorted Mr. Bob Briggs, "I shall go in here, come what come may, as old what's his name says; so come along, Sim Buck!--_Hiccup._" They instantly tried to force themselves into the box; the box-keeper and the company tried to keep them out; the constable was called; and, with some ado, he prevailed upon them to relinquish their attempt upon that particular box. But Mr. Constable had scarcely let them go, when the hubbub was renewed; and turning back, he found they had got the box-keeper up in a corner, and were trying, as he said, "to squeeze their money out of him;"--for they had made up their minds to stick to the dress circle, and since there was no room for them in the dress circle, they insisted upon having their half-crowns back again--"_so fork out the blunt_, you little rascal!" There was a great row; the entrance to the lobby was blocked up; the constable again interfered: Mr. Simeon Buck collared the constable; the constable collared Mr. Simeon Buck; Mr. Frederic W. Diggles caught hold of Mr. Simeon Buck's coat tail, and tried to pull him away from the constable; the constable only held him the faster, determined to send him to the watch-house; and there was poor Mr. Simeon Buck, see-sawing backwards and forwards, with the constable pulling away at his neck, and Mr. Frederic W. Diggles at his tail, for nearly ten minutes; whilst Mr. Bobby popped about the lobby like a pea upon a tobacco-pipe; squeaking for help, and wishing all contumacious constables, and "blackguard box-keepers," at the very _diable_! At length the constable prevailed, and Mr. Simeon Buck, half-strangled, and sadly damaged in his cravattery, was led away to the watch-house, followed by Mr. Bob Briggs, and Mr. Frederic W. Diggles; and there all three were safely stowed away for the night. When brought before the magistrate, they defended themselves vigorously--alleging that there was plenty of room in the box they sought to enter, and that they had done nothing worthy of the misery that had been inflicted on them. The magistrate told them he could see plainly how their case stood. They were young men of great respectability, he had no doubt; but on the night in question they had taken a little too much wine; and the wine had made them a little too presuming; and the presumption had excited them to disorderly conduct; a riot had ensued, assaults had been committed, and by a very natural consequence, they passed the remainder of the night in the watch-house. Messrs. Simeon Buck and Bob Briggs were then ordered to find bail for the general riot; and Mr. Frederic W. Diggles, for assaulting the constable in the execution of his duty. IRISH GALLANTRY. Mrs. O'Reilly, wife of Laurence O'Reilly, "coal and potaty merchant, handy by _Clear_ market," charged Mr. Ralph Hogan, a comely young man, of five-and-twenty, with attempting to make her a false woman to her own lawful married husband! "And please your magistrate," said Mrs. O'Reilly, "Misther Hogan is a lodger of ours, and a civilish sort of a jantleman in gineral, and turncock to the New River Company"-- "Faith that I am, Misthress O'Reilly," responded Mr. Hogan, "any time these three years--come a fortnight after last St. Patrick's-day!" "Very good, Misther Hogan; and ye see I wouldn't be telling a lie for the matter--why should I?" rejoined Mrs. O'Reilly very complacently;--and then, turning to the magistrate, she proceeded--"And plase your magistrate, Misther Hogan is a nice civilish sort of a young jantleman as a body would wish to be spaking to--ounly that time he couldna withstand _timptation_; and that was last Sathurday, after tay, when my husband wasn't in the place, and the childer were abed, and I was ironing their best bits of frocks for the Sunday, plase your magistrate. And Misther Hogan sat down by the fire mighty quiet--'And what do I owe you, Misthress O'Reilly,' says he--'for the rint?' says he. 'Just one week of it, Misther Hogan,' say I, 'for you're a nice man, and always true for the rint, and I likes to have you for a lodger overmuch.' Och! bad luck to me for saying that! for Mr. Hogan couldna stand the kind word at all, but must be flinging out his coortships at me--against both the law and the gospel--saving your magistrate's presence. 'And what would ye be after, Misther Hogan?' says I--'Don't you know I'm the mother of my husband's childer any time these thirteen long years--and himself coming in every minute may be, Misther Hogan!' says I. 'Gad's blood! Misthress O'Reilly,' says he, 'to the devil I will pitch him, for myself can't do without ye any longer at all!' and down on his knees he went to me at that time, mighty queer; and up he gathers himself again, and comed at me; and I tried to smooth him down with the hot-iron, but he wouldn't be quiet by no manes for me; and a noise comed to the door, and I squaled, and the neighbours comed trembling into the place, and there was an end on't--plase your magistrate." Whilst Mrs. O'Reilly was telling her story, Mr. Hogan stood carefully wiping his hat; and when she had done, the magistrate asked him what he had to say for himself; at the same time telling him he thought he had behaved very grossly. "Devil burn me! your worchip," replied Mr. Hogan--"but I'm just fit to split for spaking! Och! woman, woman! what is there half?----but my _honour's_ consarned, your worchip, and I won't--I won't say nothing, come what will!" The gallant Turncock persisted in this generous forbearance, and he was held to bail to answer for the loving assault at the ensuing Sessions. THE END. Footnotes: [1] This was before the passing of the _New Vagrant Act_-- "When free to follow nature was the mode, And tyrant _tread-mills_ had not shackled man." [2] A tailor, when asked what he is, never replies simply, "I am a _tailor_;" but, "I am a tailor, by _trade_"--thereby seeming to signify that he is not a _tailor_ by _nature_. [3] An _ultra_-napped driving, or box coat. [4] _Toggery_, from the Roman _toga_. [5] _Gumption_, strength, either bodily or mental. [6] _Peel_, to strip, to disrobe. [7] _Done_, caught, beat. [8] A dram, a drop of _max_. [9] _Spouted_--Pawned. The business of the pawnbrokers has so much increased in London of late years, that they find it necessary to have extensive ware-rooms at the top of the house; and in order to save the trouble of running up and down stairs, they have invented a spout of communication between the ware-rooms and the shop. So that, whenever an unfortunate takes his unmentionables, or any other article to pledge, the pawnbroker places them at the bottom of the spout, and "by some cantrip slight" or other, up the spout they go slap into the ware-rooms in an instant, where they remain until the day of redemption, and then, up goes the duplicate ticket, and down comes the unmentionables again. [10] _The Waits_--Those wandering minstrels, who, on the approach of Christmas, nightly serenade the sleeping public by license of the king's sergeant trumpeter. [11] _Bread-basket_, _dumpling depot_, _victualling office_, _&c._, are terms given by the "Fancy" to the digestive organ. [12] Gin.--_Deady_ is, or was, a celebrated distiller of that lively liquid. [13] _Charley_--Corinthianish for _Watchman_. [14] _Canisters_--Corinthianish for _Heads_. [15] _Riddled it_--made it full of holes, like a riddle. [16] _Bilk_, from the Gothic _Bilaican_, to cheat, to defraud. [17] What a pity it is that the poor gentleman never thought of cutting his boots away with a knife! But _nemo mortalium, &c._ [18] Something which may be drank in a short time, and yet have a lengthy effect. [19] A _dodger_ is ginshop-ish for a _dram_. [20] "This is a _sessionable_ assault; that is to say, an assault worthy of trial at Quarter Sessions."--_Country Justice._ [21] _Kennedy_--St. Giles's for the _poker_, from a man of that name being killed by a poker, or a man of that name killing another with that instrument. [22] Query _inured_. [23] _Gal_--cockney for _girl_. [24] _Heavy wet_--Porter;--because, the more a man drinks of it, the heavier he becomes. [25] A back room on the third floor. [26] A _jemmy_ is a sheep's head--a favourite dish with those who can get no other. For _jugg'd_, see Dr. Kitchiner on "jugg'd hare," &c. [27] _Max-upon-tick_--pronounced, maxapóntic--a very gentleman-like term, invented by certain learned tailors, signifying _scored gin_--or _gin upon credit--max_ being cockneyish for gin, and _tick_ being synonymous with credit, all the world over. [28] "Bleak winter wears a _coat_ of snow." _Recit._--Mr. Gluckman. "A _lily-white benjamin_--is it not so?" _Air_--Lord Mops. [29] These lads were tried at the Old Bailey, and being found guilty, they were sentenced to seven years' transportation,--which sentence was afterwards commuted to five years' imprisonment in the Millbank Penitentiary. [30] _Squad_--diminutive of _squadron_; applied generally to little parties, of little sense--as, an awkward squad, a blackguard squad, a squandering squad, &c. [31] _Seedy_--a highly fashionable term, applied chiefly to dress. Thus when a man's coat begins to manifest symptoms of worn-out-ishness, he is said to look _seedy_--run to seed, and ready for _cutting_; and whenever this is the case, all his acquaintance cut him as fast as they can, until he is quite cut down and done with. Holywell-street is a famous mart for these ripe garments. [32] _Bub_ and _Grub_--drink and victual-- --"And we'll broach a tub, Of humming bub, With lots of hot and chilly grub, To welcome you home with a rub a dub dub." _Old Song._ [33] _Ramshackle_--corrupted from _ramshatter_, to shatter as with a battering ram. [34] A resplendent _gas-light_ was just then shedding its radiance over the happy pair. 
608	----	AREOPAGITICA A SPEECH FOR THE LIBERTY OF UNLICENSED PRINTING TO THE PARLIAMENT OF ENGLAND This is true liberty, when free-born men, Having to advise the public, may speak free, Which he who can, and will, deserves high praise; Who neither can, nor will, may hold his peace: What can be juster in a state than this? Euripid. Hicetid. They, who to states and governors of the Commonwealth direct their speech, High Court of Parliament, or, wanting such access in a private condition, write that which they foresee may advance the public good; I suppose them, as at the beginning of no mean endeavour, not a little altered and moved inwardly in their minds: some with doubt of what will be the success, others with fear of what will be the censure; some with hope, others with confidence of what they have to speak. And me perhaps each of these dispositions, as the subject was whereon I entered, may have at other times variously affected; and likely might in these foremost expressions now also disclose which of them swayed most, but that the very attempt of this address thus made, and the thought of whom it hath recourse to, hath got the power within me to a passion, far more welcome than incidental to a preface. Which though I stay not to confess ere any ask, I shall be blameless, if it be no other than the joy and gratulation which it brings to all who wish and promote their country's liberty; whereof this whole discourse proposed will be a certain testimony, if not a trophy. For this is not the liberty which we can hope, that no grievance ever should arise in the Commonwealth--that let no man in this world expect; but when complaints are freely heard, deeply considered and speedily reformed, then is the utmost bound of civil liberty attained that wise men look for. To which if I now manifest by the very sound of this which I shall utter, that we are already in good part arrived, and yet from such a steep disadvantage of tyranny and superstition grounded into our principles as was beyond the manhood of a Roman recovery, it will be attributed first, as is most due, to the strong assistance of God our deliverer, next to your faithful guidance and undaunted wisdom, Lords and Commons of England. Neither is it in God's esteem the diminution of his glory, when honourable things are spoken of good men and worthy magistrates; which if I now first should begin to do, after so fair a progress of your laudable deeds, and such a long obligement upon the whole realm to your indefatigable virtues, I might be justly reckoned among the tardiest, and the unwillingest of them that praise ye. Nevertheless there being three principal things, without which all praising is but courtship and flattery: First, when that only is praised which is solidly worth praise: next, when greatest likelihoods are brought that such things are truly and really in those persons to whom they are ascribed: the other, when he who praises, by showing that such his actual persuasion is of whom he writes, can demonstrate that he flatters not; the former two of these I have heretofore endeavoured, rescuing the employment from him who went about to impair your merits with a trivial and malignant encomium; the latter as belonging chiefly to mine own acquittal, that whom I so extolled I did not flatter, hath been reserved opportunely to this occasion. For he who freely magnifies what hath been nobly done, and fears not to declare as freely what might be done better, gives ye the best covenant of his fidelity; and that his loyalest affection and his hope waits on your proceedings. His highest praising is not flattery, and his plainest advice is a kind of praising. For though I should affirm and hold by argument, that it would fare better with truth, with learning and the Commonwealth, if one of your published Orders, which I should name, were called in; yet at the same time it could not but much redound to the lustre of your mild and equal government, whenas private persons are hereby animated to think ye better pleased with public advice, than other statists have been delighted heretofore with public flattery. And men will then see what difference there is between the magnanimity of a triennial Parliament, and that jealous haughtiness of prelates and cabin counsellors that usurped of late, whenas they shall observe ye in the midst of your victories and successes more gently brooking written exceptions against a voted Order than other courts, which had produced nothing worth memory but the weak ostentation of wealth, would have endured the least signified dislike at any sudden proclamation. If I should thus far presume upon the meek demeanour of your civil and gentle greatness, Lords and Commons, as what your published Order hath directly said, that to gainsay, I might defend myself with ease, if any should accuse me of being new or insolent, did they but know how much better I find ye esteem it to imitate the old and elegant humanity of Greece, than the barbaric pride of a Hunnish and Norwegian stateliness. And out of those ages, to whose polite wisdom and letters we owe that we are not yet Goths and Jutlanders, I could name him who from his private house wrote that discourse to the Parliament of Athens, that persuades them to change the form of democracy which was then established. Such honour was done in those days to men who professed the study of wisdom and eloquence, not only in their own country, but in other lands, that cities and signiories heard them gladly, and with great respect, if they had aught in public to admonish the state. Thus did Dion Prusaeus, a stranger and a private orator, counsel the Rhodians against a former edict; and I abound with other like examples, which to set here would be superfluous. But if from the industry of a life wholly dedicated to studious labours, and those natural endowments haply not the worst for two and fifty degrees of northern latitude, so much must be derogated, as to count me not equal to any of those who had this privilege, I would obtain to be thought not so inferior, as yourselves are superior to the most of them who received their counsel: and how far you excel them, be assured, Lords and Commons, there can no greater testimony appear, than when your prudent spirit acknowledges and obeys the voice of reason from what quarter soever it be heard speaking; and renders ye as willing to repeal any Act of your own setting forth, as any set forth by your predecessors. If ye be thus resolved, as it were injury to think ye were not, I know not what should withhold me from presenting ye with a fit instance wherein to show both that love of truth which ye eminently profess, and that uprightness of your judgment which is not wont to be partial to yourselves; by judging over again that Order which ye have ordained to regulate printing:--that no book, pamphlet, or paper shall be henceforth printed, unless the same be first approved and licensed by such, or at least one of such, as shall be thereto appointed. For that part which preserves justly every man's copy to himself, or provides for the poor, I touch not, only wish they be not made pretences to abuse and persecute honest and painful men, who offend not in either of these particulars. But that other clause of licensing books, which we thought had died with his brother quadragesimal and matrimonial when the prelates expired, I shall now attend with such a homily, as shall lay before ye, first the inventors of it to be those whom ye will be loath to own; next what is to be thought in general of reading, whatever sort the books be; and that this Order avails nothing to the suppressing of scandalous, seditious, and libellous books, which were mainly intended to be suppressed. Last, that it will be primely to the discouragement of all learning, and the stop of truth, not only by disexercising and blunting our abilities in what we know already, but by hindering and cropping the discovery that might be yet further made both in religious and civil wisdom. I deny not, but that it is of greatest concernment in the Church and Commonwealth, to have a vigilant eye how books demean themselves as well as men; and thereafter to confine, imprison, and do sharpest justice on them as malefactors. For books are not absolutely dead things, but do contain a potency of life in them to be as active as that soul was whose progeny they are; nay, they do preserve as in a vial the purest efficacy and extraction of that living intellect that bred them. I know they are as lively, and as vigorously productive, as those fabulous dragon's teeth; and being sown up and down, may chance to spring up armed men. And yet, on the other hand, unless wariness be used, as good almost kill a man as kill a good book. Who kills a man kills a reasonable creature, God's image; but he who destroys a good book, kills reason itself, kills the image of God, as it were in the eye. Many a man lives a burden to the earth; but a good book is the precious life-blood of a master spirit, embalmed and treasured up on purpose to a life beyond life. 'Tis true, no age can restore a life, whereof perhaps there is no great loss; and revolutions of ages do not oft recover the loss of a rejected truth, for the want of which whole nations fare the worse. We should be wary therefore what persecution we raise against the living labours of public men, how we spill that seasoned life of man, preserved and stored up in books; since we see a kind of homicide may be thus committed, sometimes a martyrdom, and if it extend to the whole impression, a kind of massacre; whereof the execution ends not in the slaying of an elemental life, but strikes at that ethereal and fifth essence, the breath of reason itself, slays an immortality rather than a life. But lest I should be condemned of introducing license, while I oppose licensing, I refuse not the pains to be so much historical, as will serve to show what hath been done by ancient and famous commonwealths against this disorder, till the very time that this project of licensing crept out of the Inquisition, was catched up by our prelates, and hath caught some of our presbyters. In Athens, where books and wits were ever busier than in any other part of Greece, I find but only two sorts of writings which the magistrate cared to take notice of; those either blasphemous and atheistical, or libellous. Thus the books of Protagoras were by the judges of Areopagus commanded to be burnt, and himself banished the territory for a discourse begun with his confessing not to know WHETHER THERE WERE GODS, OR WHETHER NOT. And against defaming, it was decreed that none should be traduced by name, as was the manner of Vetus Comoedia, whereby we may guess how they censured libelling. And this course was quick enough, as Cicero writes, to quell both the desperate wits of other atheists, and the open way of defaming, as the event showed. Of other sects and opinions, though tending to voluptuousness, and the denying of divine Providence, they took no heed. Therefore we do not read that either Epicurus, or that libertine school of Cyrene, or what the Cynic impudence uttered, was ever questioned by the laws. Neither is it recorded that the writings of those old comedians were suppressed, though the acting of them were forbid; and that Plato commended the reading of Aristophanes, the loosest of them all, to his royal scholar Dionysius, is commonly known, and may be excused, if holy Chrysostom, as is reported, nightly studied so much the same author and had the art to cleanse a scurrilous vehemence into the style of a rousing sermon. That other leading city of Greece, Lacedaemon, considering that Lycurgus their lawgiver was so addicted to elegant learning, as to have been the first that brought out of Ionia the scattered works of Homer, and sent the poet Thales from Crete to prepare and mollify the Spartan surliness with his smooth songs and odes, the better to plant among them law and civility, it is to be wondered how museless and unbookish they were, minding nought but the feats of war. There needed no licensing of books among them, for they disliked all but their own laconic apophthegms, and took a slight occasion to chase Archilochus out of their city, perhaps for composing in a higher strain than their own soldierly ballads and roundels could reach to. Or if it were for his broad verses, they were not therein so cautious but they were as dissolute in their promiscuous conversing; whence Euripides affirms in Andromache, that their women were all unchaste. Thus much may give us light after what sort of books were prohibited among the Greeks. The Romans also, for many ages trained up only to a military roughness resembling most the Lacedaemonian guise, knew of learning little but what their twelve Tables, and the Pontific College with their augurs and flamens taught them in religion and law; so unacquainted with other learning, that when Carneades and Critolaus, with the Stoic Diogenes, coming ambassadors to Rome, took thereby occasion to give the city a taste of their philosophy, they were suspected for seducers by no less a man than Cato the Censor, who moved it in the Senate to dismiss them speedily, and to banish all such Attic babblers out of Italy. But Scipio and others of the noblest senators withstood him and his old Sabine austerity; honoured and admired the men; and the censor himself at last, in his old age, fell to the study of that whereof before he was so scrupulous. And yet at the same time Naevius and Plautus, the first Latin comedians, had filled the city with all the borrowed scenes of Menander and Philemon. Then began to be considered there also what was to be done to libellous books and authors; for Naevius was quickly cast into prison for his unbridled pen, and released by the tribunes upon his recantation; we read also that libels were burnt, and the makers punished by Augustus. The like severity, no doubt, was used, if aught were impiously written against their esteemed gods. Except in these two points, how the world went in books, the magistrate kept no reckoning. And therefore Lucretius without impeachment versifies his Epicurism to Memmius, and had the honour to be set forth the second time by Cicero, so great a father of the Commonwealth; although himself disputes against that opinion in his own writings. Nor was the satirical sharpness or naked plainness of Lucilius, or Catullus, or Flaccus, by any order prohibited. And for matters of state, the story of Titus Livius, though it extolled that part which Pompey held, was not therefore suppressed by Octavius Caesar of the other faction. But that Naso was by him banished in his old age, for the wanton poems of his youth, was but a mere covert of state over some secret cause: and besides, the books were neither banished nor called in. From hence we shall meet with little else but tyranny in the Roman empire, that we may not marvel, if not so often bad as good books were silenced. I shall therefore deem to have been large enough, in producing what among the ancients was punishable to write; save only which, all other arguments were free to treat on. By this time the emperors were become Christians, whose discipline in this point I do not find to have been more severe than what was formerly in practice. The books of those whom they took to be grand heretics were examined, refuted, and condemned in the general Councils; and not till then were prohibited, or burnt, by authority of the emperor. As for the writings of heathen authors, unless they were plain invectives against Christianity, as those of Porphyrius and Proclus, they met with no interdict that can be cited, till about the year 400, in a Carthaginian Council, wherein bishops themselves were forbid to read the books of Gentiles, but heresies they might read: while others long before them, on the contrary, scrupled more the books of heretics than of Gentiles. And that the primitive Councils and bishops were wont only to declare what books were not commendable, passing no further, but leaving it to each one's conscience to read or to lay by, till after the year 800, is observed already by Padre Paolo, the great unmasker of the Trentine Council. After which time the Popes of Rome, engrossing what they pleased of political rule into their own hands, extended their dominion over men's eyes, as they had before over their judgments, burning and prohibiting to be read what they fancied not; yet sparing in their censures, and the books not many which they so dealt with: till Martin V., by his bull, not only prohibited, but was the first that excommunicated the reading of heretical books; for about that time Wickliffe and Huss, growing terrible, were they who first drove the Papal Court to a stricter policy of prohibiting. Which course Leo X. and his successors followed, until the Council of Trent and the Spanish Inquisition engendering together brought forth, or perfected, those Catalogues and expurging Indexes, that rake through the entrails of many an old good author, with a violation worse than any could be offered to his tomb. Nor did they stay in matters heretical, but any subject that was not to their palate, they either condemned in a Prohibition, or had it straight into the new purgatory of an index. To fill up the measure of encroachment, their last invention was to ordain that no book, pamphlet, or paper should be printed (as if St. Peter had bequeathed them the keys of the press also out of Paradise) unless it were approved and licensed under the hands of two or three glutton friars. For example: Let the Chancellor Cini be pleased to see if in this present work be contained aught that may withstand the printing. VINCENT RABBATTA, Vicar of Florence. I have seen this present work, and find nothing athwart the Catholic faith and good manners: in witness whereof I have given, etc. NICOLO GINI, Chancellor of Florence. Attending the precedent relation, it is allowed that this present work of Davanzati may be printed. VINCENT RABBATTA, etc. It may be printed, July 15. FRIAR SIMON MOMPEI D'AMELIA, Chancellor of the Holy Office in Florence. Sure they have a conceit, if he of the bottomless pit had not long since broke prison, that this quadruple exorcism would bar him down. I fear their next design will be to get into their custody the licensing of that which they say Claudius intended, but went not through with. Vouchsafe to see another of their forms, the Roman stamp: Imprimatur, If it seem good to the reverend Master of the Holy Palace. BELCASTRO, Vicegerent. Imprimatur, Friar Nicolo Rodolphi, Master of the Holy Palace. Sometimes five Imprimaturs are seen together dialogue-wise in the piazza of one title-page, complimenting and ducking each to other with their shaven reverences, whether the author, who stands by in perplexity at the foot of his epistle, shall to the press or to the sponge. These are the pretty responsories, these are the dear antiphonies, that so bewitched of late our prelates and their chaplains with the goodly echo they made; and besotted us to the gay imitation of a lordly Imprimatur, one from Lambeth House, another from the west end of Paul's; so apishly Romanizing, that the word of command still was set down in Latin; as if the learned grammatical pen that wrote it would cast no ink without Latin; or perhaps, as they thought, because no vulgar tongue was worthy to express the pure conceit of an Imprimatur, but rather, as I hope, for that our English, the language of men ever famous and foremost in the achievements of liberty, will not easily find servile letters enow to spell such a dictatory presumption English. And thus ye have the inventors and the original of book-licensing ripped up and drawn as lineally as any pedigree. We have it not, that can be heard of, from any ancient state, or polity or church; nor by any statute left us by our ancestors elder or later; nor from the modern custom of any reformed city or church abroad, but from the most anti-christian council and the most tyrannous inquisition that ever inquired. Till then books were ever as freely admitted into the world as any other birth; the issue of the brain was no more stifled than the issue of the womb: no envious Juno sat cross-legged over the nativity of any man's intellectual offspring; but if it proved a monster, who denies, but that it was justly burnt, or sunk into the sea? But that a book, in worse condition than a peccant soul, should be to stand before a jury ere it be born to the world, and undergo yet in darkness the judgment of Radamanth and his colleagues, ere it can pass the ferry backward into light, was never heard before, till that mysterious iniquity, provoked and troubled at the first entrance of Reformation, sought out new limbos and new hells wherein they might include our books also within the number of their damned. And this was the rare morsel so officiously snatched up, and so ill-favouredly imitated by our inquisiturient bishops, and the attendant minorites their chaplains. That ye like not now these most certain authors of this licensing order, and that all sinister intention was far distant from your thoughts, when ye were importuned the passing it, all men who know the integrity of your actions, and how ye honour truth, will clear ye readily. But some will say, what though the inventors were bad, the thing for all that may be good? It may so; yet if that thing be no such deep invention, but obvious, and easy for any man to light on, and yet best and wisest commonwealths through all ages and occasions have forborne to use it, and falsest seducers and oppressors of men were the first who took it up, and to no other purpose but to obstruct and hinder the first approach of Reformation; I am of those who believe it will be a harder alchemy than Lullius ever knew, to sublimate any good use out of such an invention. Yet this only is what I request to gain from this reason, that it may be held a dangerous and suspicious fruit, as certainly it deserves, for the tree that bore it, until I can dissect one by one the properties it has. But I have first to finish, as was propounded, what is to be thought in general of reading books, whatever sort they be, and whether be more the benefit or the harm that thence proceeds. Not to insist upon the examples of Moses, Daniel, and Paul, who were skilful in all the learning of the Egyptians, Chaldeans, and Greeks, which could not probably be without reading their books of all sorts; in Paul especially, who thought it no defilement to insert into Holy Scripture the sentences of three Greek poets, and one of them a tragedian; the question was notwithstanding sometimes controverted among the primitive doctors, but with great odds on that side which affirmed it both lawful and profitable; as was then evidently perceived, when Julian the Apostate and subtlest enemy to our faith made a decree forbidding Christians the study of heathen learning: for, said he, they wound us with our own weapons, and with our own arts and sciences they overcome us. And indeed the Christians were put so to their shifts by this crafty means, and so much in danger to decline into all ignorance, that the two Apollinarii were fain, as a man may say, to coin all the seven liberal sciences out of the Bible, reducing it into divers forms of orations, poems, dialogues, even to the calculating of a new Christian grammar. But, saith the historian Socrates, the providence of God provided better than the industry of Apollinarius and his son, by taking away that illiterate law with the life of him who devised it. So great an injury they then held it to be deprived of Hellenic learning; and thought it a persecution more undermining, and secretly decaying the Church, than the open cruelty of Decius or Diocletian. And perhaps it was the same politic drift that the devil whipped St. Jerome in a lenten dream, for reading Cicero; or else it was a phantasm bred by the fever which had then seized him. For had an angel been his discipliner, unless it were for dwelling too much upon Ciceronianisms, and had chastised the reading, not the vanity, it had been plainly partial; first to correct him for grave Cicero, and not for scurril Plautus, whom he confesses to have been reading, not long before; next to correct him only, and let so many more ancient fathers wax old in those pleasant and florid studies without the lash of such a tutoring apparition; insomuch that Basil teaches how some good use may be made of Margites, a sportful poem, not now extant, writ by Homer; and why not then of Morgante, an Italian romance much to the same purpose? But if it be agreed we shall be tried by visions, there is a vision recorded by Eusebius, far ancienter than this tale of Jerome, to the nun Eustochium, and, besides, has nothing of a fever in it. Dionysius Alexandrinus was about the year 240 a person of great name in the Church for piety and learning, who had wont to avail himself much against heretics by being conversant in their books; until a certain presbyter laid it scrupulously to his conscience, how he durst venture himself among those defiling volumes. The worthy man, loath to give offence, fell into a new debate with himself what was to be thought; when suddenly a vision sent from God (it is his own epistle that so avers it) confirmed him in these words: READ ANY BOOKS WHATEVER COME TO THY HANDS, FOR THOU ART SUFFICIENT BOTH TO JUDGE ARIGHT AND TO EXAMINE EACH MATTER. To this revelation he assented the sooner, as he confesses, because it was answerable to that of the Apostle to the Thessalonians, PROVE ALL THINGS, HOLD FAST THAT WHICH IS GOOD. And he might have added another remarkable saying of the same author: TO THE PURE, ALL THINGS ARE PURE; not only meats and drinks, but all kind of knowledge whether of good or evil; the knowledge cannot defile, nor consequently the books, if the will and conscience be not defiled. For books are as meats and viands are; some of good, some of evil substance; and yet God, in that unapocryphal vision, said without exception, RISE, PETER, KILL AND EAT, leaving the choice to each man's discretion. Wholesome meats to a vitiated stomach differ little or nothing from unwholesome; and best books to a naughty mind are not unappliable to occasions of evil. Bad meats will scarce breed good nourishment in the healthiest concoction; but herein the difference is of bad books, that they to a discreet and judicious reader serve in many respects to discover, to confute, to forewarn, and to illustrate. Whereof what better witness can ye expect I should produce, than one of your own now sitting in Parliament, the chief of learned men reputed in this land, Mr. Selden; whose volume of natural and national laws proves, not only by great authorities brought together, but by exquisite reasons and theorems almost mathematically demonstrative, that all opinions, yea errors, known, read, and collated, are of main service and assistance toward the speedy attainment of what is truest. I conceive, therefore, that when God did enlarge the universal diet of man's body, saving ever the rules of temperance, he then also, as before, left arbitrary the dieting and repasting of our minds; as wherein every mature man might have to exercise his own leading capacity. How great a virtue is temperance, how much of moment through the whole life of man! Yet God commits the managing so great a trust, without particular law or prescription, wholly to the demeanour of every grown man. And therefore when he himself tabled the Jews from heaven, that omer, which was every man's daily portion of manna, is computed to have been more than might have well sufficed the heartiest feeder thrice as many meals. For those actions which enter into a man, rather than issue out of him, and therefore defile not, God uses not to captivate under a perpetual childhood of prescription, but trusts him with the gift of reason to be his own chooser; there were but little work left for preaching, if law and compulsion should grow so fast upon those things which heretofore were governed only by exhortation. Solomon informs us, that much reading is a weariness to the flesh; but neither he nor other inspired author tells us that such or such reading is unlawful: yet certainly had God thought good to limit us herein, it had been much more expedient to have told us what was unlawful than what was wearisome. As for the burning of those Ephesian books by St. Paul's converts; 'tis replied the books were magic, the Syriac so renders them. It was a private act, a voluntary act, and leaves us to a voluntary imitation: the men in remorse burnt those books which were their own; the magistrate by this example is not appointed; these men practised the books, another might perhaps have read them in some sort usefully. Good and evil we know in the field of this world grow up together almost inseparably; and the knowledge of good is so involved and interwoven with the knowledge of evil, and in so many cunning resemblances hardly to be discerned, that those confused seeds which were imposed upon Psyche as an incessant labour to cull out, and sort asunder, were not more intermixed. It was from out the rind of one apple tasted, that the knowledge of good and evil, as two twins cleaving together, leaped forth into the world. And perhaps this is that doom which Adam fell into of knowing good and evil, that is to say of knowing good by evil. As therefore the state of man now is; what wisdom can there be to choose, what continence to forbear without the knowledge of evil? He that can apprehend and consider vice with all her baits and seeming pleasures, and yet abstain, and yet distinguish, and yet prefer that which is truly better, he is the true warfaring Christian. I cannot praise a fugitive and cloistered virtue, unexercised and unbreathed, that never sallies out and sees her adversary but slinks out of the race, where that immortal garland is to be run for, not without dust and heat. Assuredly we bring not innocence into the world, we bring impurity much rather; that which purifies us is trial, and trial is by what is contrary. That virtue therefore which is but a youngling in the contemplation of evil, and knows not the utmost that vice promises to her followers, and rejects it, is but a blank virtue, not a pure; her whiteness is but an excremental whiteness. Which was the reason why our sage and serious poet Spenser, whom I dare be known to think a better teacher than Scotus or Aquinas, describing true temperance under the person of Guion, brings him in with his palmer through the cave of Mammon, and the bower of earthly bliss, that he might see and know, and yet abstain. Since therefore the knowledge and survey of vice is in this world so necessary to the constituting of human virtue, and the scanning of error to the confirmation of truth, how can we more safely, and with less danger, scout into the regions of sin and falsity than by reading all manner of tractates and hearing all manner of reason? And this is the benefit which may be had of books promiscuously read. But of the harm that may result hence three kinds are usually reckoned. First, is feared the infection that may spread; but then all human learning and controversy in religious points must remove out of the world, yea the Bible itself; for that ofttimes relates blasphemy not nicely, it describes the carnal sense of wicked men not unelegantly, it brings in holiest men passionately murmuring against Providence through all the arguments of Epicurus: in other great disputes it answers dubiously and darkly to the common reader. And ask a Talmudist what ails the modesty of his marginal Keri, that Moses and all the prophets cannot persuade him to pronounce the textual Chetiv. For these causes we all know the Bible itself put by the Papist put by the Papist into the first rank of prohibited books. The ancientest Fathers must be next removed, as Clement of Alexandria, and that Eusebian book of Evangelic preparation, transmitting our ears through a hoard of heathenish obscenities to receive the Gospel. Who finds not that Irenaeus, Epiphanius, Jerome, and others discover more heresies than they well confute, and that oft for heresy which is the truer opinion? Nor boots it to say for these, and all the heathen writers of greatest infection, if it must be thought so, with whom is bound up the life of human learning, that they writ in an unknown tongue, so long as we are sure those languages are known as well to the worst of men, who are both most able and most diligent to instil the poison they suck, first into the courts of princes, acquainting them with the choicest delights and criticisms of sin. As perhaps did that Petronius whom Nero called his Arbiter, the master of his revels; and the notorious ribald of Arezzo, dreaded and yet dear to the Italian courtiers. I name not him for posterity's sake, whom Henry VIII. named in merriment his vicar of hell. By which compendious way all the contagion that foreign books can infuse will find a passage to the people far easier and shorter than an Indian voyage, though it could be sailed either by the north of Cataio eastward, or of Canada westward, while our Spanish licensing gags the English press never so severely. But on the other side that infection which is from books of controversy in religion is more doubtful and dangerous to the learned than to the ignorant; and yet those books must be permitted untouched by the licenser. It will be hard to instance where any ignorant man hath been ever seduced by papistical book in English, unless it were commended and expounded to him by some of that clergy: and indeed all such tractates, whether false or true, are as the prophecy of Isaiah was to the eunuch, not to be UNDERSTOOD WITHOUT A GUIDE. But of our priests and doctors how many have been corrupted by studying the comments of Jesuits and Sorbonists, and how fast they could transfuse that corruption into the people, our experience is both late and sad. It is not forgot, since the acute and distinct Arminius was perverted merely by the perusing of a nameless discourse written at Delft, which at first he took in hand to confute. Seeing, therefore, that those books, and those in great abundance, which are likeliest to taint both life and doctrine, cannot be suppressed without the fall of learning and of all ability in disputation, and that these books of either sort are most and soonest catching to the learned, from whom to the common people whatever is heretical or dissolute may quickly be conveyed, and that evil manners are as perfectly learnt without books a thousand other ways which cannot be stopped, and evil doctrine not with books can propagate, except a teacher guide, which he might also do without writing, and so beyond prohibiting, I am not able to unfold, how this cautelous enterprise of licensing can be exempted from the number of vain and impossible attempts. And he who were pleasantly disposed could not well avoid to liken it to the exploit of that gallant man who thought to pound up the crows by shutting his park gate. Besides another inconvenience, if learned men be the first receivers out of books and dispreaders both of vice and error, how shall the licensers themselves be confided in, unless we can confer upon them, or they assume to themselves above all others in the land, the grace of infallibility and uncorruptedness? And again, if it be true that a wise man, like a good refiner, can gather gold out of the drossiest volume, and that a fool will be a fool with the best book, yea or without book; there is no reason that we should deprive a wise man of any advantage to his wisdom, while we seek to restrain from a fool, that which being restrained will be no hindrance to his folly. For if there should be so much exactness always used to keep that from him which is unfit for his reading, we should in the judgment of Aristotle not only, but of Solomon and of our Saviour, not vouchsafe him good precepts, and by consequence not willingly admit him to good books; as being certain that a wise man will make better use of an idle pamphlet, than a fool will do of sacred Scripture. 'Tis next alleged we must not expose ourselves to temptations without necessity, and next to that, not employ our time in vain things. To both these objections one answer will serve, out of the grounds already laid, that to all men such books are not temptations, nor vanities, but useful drugs and materials wherewith to temper and compose effective and strong medicines, which man's life cannot want. The rest, as children and childish men, who have not the art to qualify and prepare these working minerals, well may be exhorted to forbear, but hindered forcibly they cannot be by all the licensing that Sainted Inquisition could ever yet contrive. Which is what I promised to deliver next: that this order of licensing conduces nothing to the end for which it was framed; and hath almost prevented me by being clear already while thus much hath been explaining. See the ingenuity of Truth, who, when she gets a free and willing hand, opens herself faster than the pace of method and discourse can overtake her. It was the task which I began with, to show that no nation, or well-instituted state, if they valued books at all, did ever use this way of licensing; and it might be answered, that this is a piece of prudence lately discovered. To which I return, that as it was a thing slight and obvious to think on, so if it had been difficult to find out, there wanted not among them long since who suggested such a course; which they not following, leave us a pattern of their judgment that it was not the rest knowing, but the not approving, which was the cause of their not using it. Plato, a man of high authority, indeed, but least of all for his Commonwealth, in the book of his Laws, which no city ever yet received, fed his fancy by making many edicts to his airy burgomasters, which they who otherwise admire him wish had been rather buried and excused in the genial cups of an Academic night sitting. By which laws he seems to tolerate no kind of learning but by unalterable decree, consisting most of practical traditions, to the attainment whereof a library of smaller bulk than his own Dialogues would be abundant. And there also enacts, that no poet should so much as read to any private man what he had written, until the judges and law-keepers had seen it, and allowed it. But that Plato meant this law peculiarly to that commonwealth which he had imagined, and to no other, is evident. Why was he not else a lawgiver to himself, but a transgressor, and to be expelled by his own magistrates; both for the wanton epigrams and dialogues which he made, and his perpetual reading of Sophron Mimus and Aristophanes, books of grossest infamy, and also for commending the latter of them, though he were the malicious libeller of his chief friends, to be read by the tyrant Dionysius, who had little need of such trash to spend his time on? But that he knew this licensing of poems had reference and dependence to many other provisos there set down in his fancied republic, which in this world could have no place: and so neither he himself, nor any magistrate or city, ever imitated that course, which, taken apart from those other collateral injunctions, must needs be vain and fruitless. For if they fell upon one kind of strictness, unless their care were equal to regulate all other things of like aptness to corrupt the mind, that single endeavour they knew would be but a fond labour; to shut and fortify one gate against corruption, and be necessitated to leave others round about wide open. If we think to regulate printing, thereby to rectify manners, we must regulate all recreation and pastimes, all that is delightful to man. No music must be heard, no song be set or sung, but what is grave and Doric. There must be licensing dancers, that no gesture, motion, or deportment be taught our youth but what by their allowance shall be thought honest; for such Plato was provided of. It will ask more than the work of twenty licensers to examine all the lutes, the violins, and the guitars in every house; they must not be suffered to prattle as they do, but must be licensed what they may say. And who shall silence all the airs and madrigals that whisper softness in chambers? The windows also, and the balconies must be thought on; there are shrewd books, with dangerous frontispieces, set to sale; who shall prohibit them, shall twenty licensers? The villages also must have their visitors to inquire what lectures the bagpipe and the rebeck reads, even to the ballatry and the gamut of every municipal fiddler, for these are the countryman's Arcadias, and his Monte Mayors. Next, what more national corruption, for which England hears ill abroad, than household gluttony: who shall be the rectors of our daily rioting? And what shall be done to inhibit the multitudes that frequent those houses where drunkenness is sold and harboured? Our garments also should be referred to the licensing of some more sober workmasters to see them cut into a less wanton garb. Who shall regulate all the mixed conversation of our youth, male and female together, as is the fashion of this country? Who shall still appoint what shall be discoursed, what presumed, and no further? Lastly, who shall forbid and separate all idle resort, all evil company? These things will be, and must be; but how they shall be least hurtful, how least enticing, herein consists the grave and governing wisdom of a state. To sequester out of the world into Atlantic and Utopian polities, which never can be drawn into use, will not mend our condition; but to ordain wisely as in this world of evil, in the midst whereof God hath placed us unavoidably. Nor is it Plato's licensing of books will do this, which necessarily pulls along with it so many other kinds of licensing, as will make us all both ridiculous and weary, and yet frustrate; but those unwritten, or at least unconstraining, laws of virtuous education, religious and civil nurture, which Plato there mentions as the bonds and ligaments of the commonwealth, the pillars and the sustainers of every written statute; these they be which will bear chief sway in such matters as these, when all licensing will be easily eluded. Impunity and remissness, for certain, are the bane of a commonwealth; but here the great art lies, to discern in what the law is to bid restraint and punishment, and in what things persuasion only is to work. If every action, which is good or evil in man at ripe years, were to be under pittance and prescription and compulsion, what were virtue but a name, what praise could be then due to well-doing, what gramercy to be sober, just, or continent? Many there be that complain of divine Providence for suffering Adam to transgress; foolish tongues! When God gave him reason, he gave him freedom to choose, for reason is but choosing; he had been else a mere artificial Adam, such an Adam as he is in the motions. We ourselves esteem not of that obedience, or love, or gift, which is of force: God therefore left him free, set before him a provoking object, ever almost in his eyes; herein consisted his merit, herein the right of his reward, the praise of his abstinence. Wherefore did he create passions within us, pleasures round about us, but that these rightly tempered are the very ingredients of virtue? They are not skilful considerers of human things, who imagine to remove sin by removing the matter of sin; for, besides that it is a huge heap increasing under the very act of diminishing, though some part of it may for a time be withdrawn from some persons, it cannot from all, in such a universal thing as books are; and when this is done, yet the sin remains entire. Though ye take from a covetous man all his treasure, he has yet one jewel left, ye cannot bereave him of his covetousness. Banish all objects of lust, shut up all youth into the severest discipline that can be exercised in any hermitage, ye cannot make them chaste, that came not hither so; such great care and wisdom is required to the right managing of this point. Suppose we could expel sin by this means; look how much we thus expel of sin, so much we expel of virtue: for the matter of them both is the same; remove that, and ye remove them both alike. This justifies the high providence of God, who, though he command us temperance, justice, continence, yet pours out before us, even to a profuseness, all desirable things, and gives us minds that can wander beyond all limit and satiety. Why should we then affect a rigour contrary to the manner of God and of nature, by abridging or scanting those means, which books freely permitted are, both to the trial of virtue and the exercise of truth? It would be better done, to learn that the law must needs be frivolous, which goes to restrain things, uncertainly and yet equally working to good and to evil. And were I the chooser, a dream of well-doing should be preferred before many times as much the forcible hindrance of evil-doing. For God sure esteems the growth and completing of one virtuous person more than the restraint of ten vicious. And albeit whatever thing we hear or see, sitting, walking, travelling, or conversing, may be fitly called our book, and is of the same effect that writings are, yet grant the thing to be prohibited were only books, it appears that this Order hitherto is far insufficient to the end which it intends. Do we not see, not once or oftener, but weekly, that continued court-libel against the Parliament and City, printed, as the wet sheets can witness, and dispersed among us, for all that licensing can do? Yet this is the prime service a man would think, wherein this Order should give proof of itself. If it were executed, you'll say. But certain, if execution be remiss or blindfold now, and in this particular, what will it be hereafter and in other books? If then the Order shall not be vain and frustrate, behold a new labour, Lords and Commons, ye must repeal and proscribe all scandalous and unlicensed books already printed and divulged; after ye have drawn them up into a list, that all may know which are condemned, and which not; and ordain that no foreign books be delivered out of custody, till they have been read over. This office will require the whole time of not a few overseers, and those no vulgar men. There be also books which are partly useful and excellent, partly culpable and pernicious; this work will ask as many more officials, to make expurgations and expunctions, that the commonwealth of learning be not damnified. In fine, when the multitude of books increase upon their hands, ye must be fain to catalogue all those printers who are found frequently offending, and forbid the importation of their whole suspected typography. In a word, that this your Order may be exact and not deficient, ye must reform it perfectly according to the model of Trent and Seville, which I know ye abhor to do. Yet though ye should condescend to this, which God forbid, the Order still would be but fruitless and defective to that end whereto ye meant it. If to prevent sects and schisms, who is so unread or so uncatechized in story, that hath not heard of many sects refusing books as a hindrance, and preserving their doctrine unmixed for many ages, only by unwritten traditions? The Christian faith, for that was once a schism, is not unknown to have spread all over Asia, ere any Gospel or Epistle was seen in writing. If the amendment of manners be aimed at, look into Italy and Spain, whether those places be one scruple the better, the honester, the wiser, the chaster, since all the inquisitional rigour that hath been executed upon books. Another reason, whereby to make it plain that this Order will miss the end it seeks, consider by the quality which ought to be in every licenser. It cannot be denied but that he who is made judge to sit upon the birth or death of books, whether they may be wafted into this world or not, had need to be a man above the common measure, both studious, learned, and judicious; there may be else no mean mistakes in the censure of what is passable or not; which is also no mean injury. If he be of such worth as behooves him, there cannot be a more tedious and unpleasing journey-work, a greater loss of time levied upon his head, than to be made the perpetual reader of unchosen books and pamphlets, ofttimes huge volumes. There is no book that is acceptable unless at certain seasons; but to be enjoined the reading of that at all times, and in a hand scarce legible, whereof three pages would not down at any time in the fairest print, is an imposition which I cannot believe how he that values time and his own studies, or is but of a sensible nostril, should be able to endure. In this one thing I crave leave of the present licensers to be pardoned for so thinking; who doubtless took this office up, looking on it through their obedience to the Parliament, whose command perhaps made all things seem easy and unlaborious to them; but that this short trial hath wearied them out already, their own expressions and excuses to them who make so many journeys to solicit their licence are testimony enough. Seeing therefore those who now possess the employment by all evident signs wish themselves well rid of it; and that no man of worth, none that is not a plain unthrift of his own hours, is ever likely to succeed them, except he mean to put himself to the salary of a press corrector; we may easily foresee what kind of licensers we are to expect hereafter, either ignorant, imperious, and remiss, or basely pecuniary. This is what I had to show, wherein this Order cannot conduce to that end whereof it bears the intention. I lastly proceed from the no good it can do, to the manifest hurt it causes, in being first the greatest discouragement and affront that can be offered to learning, and to learned men. It was the complaint and lamentation of prelates, upon every least breath of a motion to remove pluralities, and distribute more equally Church revenues, that then all learning would be for ever dashed and discouraged. But as for that opinion, I never found cause to think that the tenth part of learning stood or fell with the clergy: nor could I ever but hold it for a sordid and unworthy speech of any churchman who had a competency left him. If therefore ye be loath to dishearten utterly and discontent, not the mercenary crew of false pretenders to learning, but the free and ingenuous sort of such as evidently were born to study, and love learning for itself, not for lucre or any other end but the service of God and of truth, and perhaps that lasting fame and perpetuity of praise which God and good men have consented shall be the reward of those whose published labours advance the good of mankind; then know that, so far to distrust the judgment and the honesty of one who hath but a common repute in learning, and never yet offended, as not to count him fit to print his mind without a tutor and examiner, lest he should drop a schism, or something of corruption, is the greatest displeasure and indignity to a free and knowing spirit that can be put upon him. What advantage is it to be a man, over it is to be a boy at school, if we have only escaped the ferula to come under the fescue of an Imprimatur; if serious and elaborate writings, as if they were no more than the theme of a grammar-lad under his pedagogue, must not be uttered without the cursory eyes of a temporizing and extemporizing licenser? He who is not trusted with his own actions, his drift not being known to be evil, and standing to the hazard of law and penalty, has no great argument to think himself reputed in the Commonwealth wherein he was born for other than a fool or a foreigner. When a man writes to the world, he summons up all his reason and deliberation to assist him; he searches, meditates, is industrious, and likely consults and confers with his judicious friends; after all which done he takes himself to be informed in what he writes, as well as any that writ before him. If, in this the most consummate act of his fidelity and ripeness, no years, no industry, no former proof of his abilities can bring him to that state of maturity, as not to be still mistrusted and suspected, unless he carry all his considerate diligence, all his midnight watchings and expense of Palladian oil, to the hasty view of an unleisured licenser, perhaps much his younger, perhaps his inferior in judgment, perhaps one who never knew the labour of bookwriting, and if he be not repulsed or slighted, must appear in print like a puny with his guardian, and his censor's hand on the back of his title to be his bail and surety that he is no idiot or seducer, it cannot be but a dishonour and derogation to the author, to the book, to the privilege and dignity of learning. And what if the author shall be one so copious of fancy, as to have many things well worth the adding come into his mind after licensing, while the book is yet under the press, which not seldom happens to the best and diligentest writers; and that perhaps a dozen times in one book? The printer dares not go beyond his licensed copy; so often then must the author trudge to his leave-giver, that those his new insertions may be viewed; and many a jaunt will be made, ere that licenser, for it must be the same man, can either be found, or found at leisure; meanwhile either the press must stand still, which is no small damage, or the author lose his accuratest thoughts, and send the book forth worse than he had made it, which to a diligent writer is the greatest melancholy and vexation that can befall. And how can a man teach with authority, which is the life of teaching; how can he be a doctor in his book as he ought to be, or else had better be silent, whenas all he teaches, all he delivers, is but under the tuition, under the correction of his patriarchal licenser to blot or alter what precisely accords not with the hidebound humour which he calls his judgment? When every acute reader, upon the first sight of a pedantic licence, will be ready with these like words to ding the book a quoit's distance from him: I hate a pupil teacher, I endure not an instructor that comes to me under the wardship of an overseeing fist. I know nothing of the licenser, but that I have his own hand here for his arrogance; who shall warrant me his judgment? The State, sir, replies the stationer, but has a quick return: The State shall be my governors, but not my critics; they may be mistaken in the choice of a licenser, as easily as this licenser may be mistaken in an author; this is some common stuff; and he might add from Sir Francis Bacon, THAT SUCH AUTHORIZED BOOKS ARE BUT THE LANGUAGE OF THE TIMES. For though a licenser should happen to be judicious more than ordinary, which will be a great jeopardy of the next succession, yet his very office and his commission enjoins him to let pass nothing but what is vulgarly received already. Nay, which is more lamentable, if the work of any deceased author, though never so famous in his lifetime and even to this day, come to their hands for licence to be printed, or reprinted, if there be found in his book one sentence of a venturous edge, uttered in the height of zeal (and who knows whether it might not be the dictate of a divine spirit?) yet not suiting with every low decrepit humour of their own, though it were Knox himself, the reformer of a kingdom, that spake it, they will not pardon him their dash: the sense of that great man shall to all posterity be lost, for the fearfulness or the presumptuous rashness of a perfunctory licenser. And to what an author this violence hath been lately done, and in what book of greatest consequence to be faithfully published, I could now instance, but shall forbear till a more convenient season. Yet if these things be not resented seriously and timely by them who have the remedy in their power, but that such iron-moulds as these shall have authority to gnaw out the choicest periods of exquisitest books, and to commit such a treacherous fraud against the orphan remainders of worthiest men after death, the more sorrow will belong to that hapless race of men, whose misfortune it is to have understanding. Henceforth let no man care to learn, or care to be more than worldly-wise; for certainly in higher matters to be ignorant and slothful, to be a common steadfast dunce, will be the only pleasant life, and only in request. And it is a particular disesteem of every knowing person alive, and most injurious to the written labours and monuments of the dead, so to me it seems an undervaluing and vilifying of the whole nation. I cannot set so light by all the invention, the art, the wit, the grave and solid judgment which is in England, as that it can be comprehended in any twenty capacities how good soever, much less that it should not pass except their superintendence be over it, except it be sifted and strained with their strainers, that it should be uncurrent without their manual stamp. Truth and understanding are not such wares as to be monopolized and traded in by tickets and statutes and standards. We must not think to make a staple commodity of all the knowledge in the land, to mark and licence it like our broadcloth and our woolpacks. What is it but a servitude like that imposed by the Philistines, not to be allowed the sharpening of our own axes and coulters, but we must repair from all quarters to twenty licensing forges? Had anyone written and divulged erroneous things and scandalous to honest life, misusing and forfeiting the esteem had of his reason among men, if after conviction this only censure were adjudged him that he should never henceforth write but what were first examined by an appointed officer, whose hand should be annexed to pass his credit for him that now he might be safely read; it could not be apprehended less than a disgraceful punishment. Whence to include the whole nation, and those that never yet thus offended, under such a diffident and suspectful prohibition, may plainly be understood what a disparagement it is. So much the more, whenas debtors and delinquents may walk abroad without a keeper, but unoffensive books must not stir forth without a visible jailer in their title. Nor is it to the common people less than a reproach; for if we be so jealous over them, as that we dare not trust them with an English pamphlet, what do we but censure them for a giddy, vicious, and ungrounded people; in such a sick and weak state of faith and discretion, as to be able to take nothing down but through the pipe of a licenser? That this is care or love of them, we cannot pretend, whenas, in those popish places where the laity are most hated and despised, the same strictness is used over them. Wisdom we cannot call it, because it stops but one breach of licence, nor that neither: whenas those corruptions, which it seeks to prevent, break in faster at other doors which cannot be shut. And in conclusion it reflects to the disrepute of our ministers also, of whose labours we should hope better, and of the proficiency which their flock reaps by them, than that after all this light of the Gospel which is, and is to be, and all this continual preaching, they should still be frequented with such an unprincipled, unedified and laic rabble, as that the whiff of every new pamphlet should stagger them out of their catechism and Christian walking. This may have much reason to discourage the ministers when such a low conceit is had of all their exhortations, and the benefiting of their hearers, as that they are not thought fit to be turned loose to three sheets of paper without a licenser; that all the sermons, all the lectures preached, printed, vented in such numbers, and such volumes, as have now well nigh made all other books unsaleable, should not be armour enough against one single Enchiridion, without the castle of St. Angelo of an Imprimatur. And lest some should persuade ye, Lords and Commons, that these arguments of learned men's discouragement at this your Order are mere flourishes, and not real, I could recount what I have seen and heard in other countries, where this kind of inquisition tyrannizes; when I have sat among their learned men, for that honour I had, and been counted happy to be born in such a place of philosophic freedom, as they supposed England was, while themselves did nothing but bemoan the servile condition into which learning amongst them was brought; that this was it which had damped the glory of Italian wits; that nothing had been there written now these many years but flattery and fustian. There it was that I found and visited the famous Galileo, grown old, a prisoner to the Inquisition, for thinking in astronomy otherwise than the Franciscan and Dominican licensers thought. And though I knew that England then was groaning loudest under the prelatical yoke, nevertheless I took it as a pledge of future happiness, that other nations were so persuaded of her liberty. Yet was it beyond my hope that those worthies were then breathing in her air, who should be her leaders to such a deliverance, as shall never be forgotten by any revolution of time that this world hath to finish. When that was once begun, it was as little in my fear that what words of complaint I heard among learned men of other parts uttered against the Inquisition, the same I should hear by as learned men at home, uttered in time of Parliament against an order of licensing; and that so generally that, when I had disclosed myself a companion of their discontent, I might say, if without envy, that he whom an honest quaestorship had endeared to the Sicilians was not more by them importuned against Verres, than the favourable opinion which I had among many who honour ye, and are known and respected by ye, loaded me with entreaties and persuasions, that I would not despair to lay together that which just reason should bring into my mind, toward the removal of an undeserved thraldom upon learning. That this is not therefore the disburdening of a particular fancy, but the common grievance of all those who had prepared their minds and studies above the vulgar pitch to advance truth in others, and from others to entertain it, thus much may satisfy. And in their name I shall for neither friend nor foe conceal what the general murmur is; that if it come to inquisitioning again and licensing, and that we are so timorous of ourselves, and so suspicious of all men, as to fear each book and the shaking of every leaf, before we know what the contents are; if some who but of late were little better than silenced from preaching shall come now to silence us from reading, except what they please, it cannot be guessed what is intended by some but a second tyranny over learning: and will soon put it out of controversy, that bishops and presbyters are the same to us, both name and thing. That those evils of prelaty, which before from five or six and twenty sees were distributively charged upon the whole people, will now light wholly upon learning, is not obscure to us: whenas now the pastor of a small unlearned parish on the sudden shall be exalted archbishop over a large diocese of books, and yet not remove, but keep his other cure too, a mystical pluralist. He who but of late cried down the sole ordination of every novice Bachelor of Art, and denied sole jurisdiction over the simplest parishioner, shall now at home in his private chair assume both these over worthiest and excellentest books and ablest authors that write them. This is not, ye Covenants and Protestations that we have made! this is not to put down prelaty; this is but to chop an episcopacy; this is but to translate the Palace Metropolitan from one kind of dominion into another; this is but an old canonical sleight of commuting our penance. To startle thus betimes at a mere unlicensed pamphlet will after a while be afraid of every conventicle, and a while after will make a conventicle of every Christian meeting. But I am certain that a State governed by the rules of justice and fortitude, or a Church built and founded upon the rock of faith and true knowledge, cannot be so pusillanimous. While things are yet not constituted in religion, that freedom of writing should be restrained by a discipline imitated from the prelates and learnt by them from the Inquisition, to shut us up all again into the breast of a licenser, must needs give cause of doubt and discouragement to all learned and religious men. Who cannot but discern the fineness of this politic drift, and who are the contrivers; that while bishops were to be baited down, then all presses might be open; it was the people's birthright and privilege in time of Parliament, it was the breaking forth of light. But now, the bishops abrogated and voided out of the Church, as if our Reformation sought no more but to make room for others into their seats under another name, the episcopal arts begin to bud again, the cruse of truth must run no more oil, liberty of printing must be enthralled again under a prelatical commission of twenty, the privilege of the people nullified, and, which is worse, the freedom of learning must groan again, and to her old fetters: all this the Parliament yet sitting. Although their own late arguments and defences against the prelates might remember them, that this obstructing violence meets for the most part with an event utterly opposite to the end which it drives at: instead of suppressing sects and schisms, it raises them and invests them with a reputation. The punishing of wits enhances their authority, saith the Viscount St. Albans; and a forbidden writing is thought to be a certain spark of truth that flies up in the faces of them who seek to tread it out. This Order, therefore, may prove a nursing-mother to sects, but I shall easily show how it will be a step-dame to Truth: and first by disenabling us to the maintenance of what is known already. Well knows he who uses to consider, that our faith and knowledge thrives by exercise, as well as our limbs and complexion. Truth is compared in Scripture to a streaming fountain; if her waters flow not in a perpetual progression, they sicken into a muddy pool of conformity and tradition. A man may be a heretic in the truth; and if he believe things only because his pastor says so, or the Assembly so determines, without knowing other reason, though his belief be true, yet the very truth he holds becomes his heresy. There is not any burden that some would gladlier post off to another than the charge and care of their religion. There be--who knows not that there be?--of Protestants and professors who live and die in as arrant an implicit faith as any lay Papist of Loretto. A wealthy man, addicted to his pleasure and to his profits, finds religion to be a traffic so entangled, and of so many piddling accounts, that of all mysteries he cannot skill to keep a stock going upon that trade. What should he do? fain he would have the name to be religious, fain he would bear up with his neighbours in that. What does he therefore, but resolves to give over toiling, and to find himself out some factor, to whose care and credit he may commit the whole managing of his religious affairs; some divine of note and estimation that must be. To him he adheres, resigns the whole warehouse of his religion, with all the locks and keys, into his custody; and indeed makes the very person of that man his religion; esteems his associating with him a sufficient evidence and commendatory of his own piety. So that a man may say his religion is now no more within himself, but is become a dividual movable, and goes and comes near him, according as that good man frequents the house. He entertains him, gives him gifts, feasts him, lodges him; his religion comes home at night, prays, is liberally supped, and sumptuously laid to sleep; rises, is saluted, and after the malmsey, or some well-spiced brewage, and better breakfasted than he whose morning appetite would have gladly fed on green figs between Bethany and Jerusalem, his religion walks abroad at eight, and leaves his kind entertainer in the shop trading all day without his religion. Another sort there be who, when they hear that all things shall be ordered, all things regulated and settled, nothing written but what passes through the custom-house of certain publicans that have the tonnaging and poundaging of all free-spoken truth, will straight give themselves up into your hands, make 'em and cut 'em out what religion ye please: there be delights, there be recreations and jolly pastimes that will fetch the day about from sun to sun, and rock the tedious year as in a delightful dream. What need they torture their heads with that which others have taken so strictly and so unalterably into their own purveying? These are the fruits which a dull ease and cessation of our knowledge will bring forth among the people. How goodly and how to be wished were such an obedient unanimity as this, what a fine conformity would it starch us all into! Doubtless a staunch and solid piece of framework, as any January could freeze together. Nor much better will be the consequence even among the clergy themselves. It is no new thing never heard of before, for a parochial minister, who has his reward and is at his Hercules' pillars in a warm benefice, to be easily inclinable, if he have nothing else that may rouse up his studies, to finish his circuit in an English Concordance and a topic folio, the gatherings and savings of a sober graduateship, a Harmony and a Catena; treading the constant round of certain common doctrinal heads, attended with their uses, motives, marks, and means, out of which, as out of an alphabet, or sol-fa, by forming and transforming, joining and disjoining variously, a little bookcraft, and two hours' meditation, might furnish him unspeakably to the performance of more than a weekly charge of sermoning: not to reckon up the infinite helps of interlinearies, breviaries, synopses, and other loitering gear. But as for the multitude of sermons ready printed and piled up, on every text that is not difficult, our London trading St. Thomas in his vestry, and add to boot St. Martin and St. Hugh, have not within their hallowed limits more vendible ware of all sorts ready made: so that penury he never need fear of pulpit provision, having where so plenteously to refresh his magazine. But if his rear and flanks be not impaled, if his back door be not secured by the rigid licenser, but that a bold book may now and then issue forth and give the assault to some of his old collections in their trenches, it will concern him then to keep waking, to stand in watch, to set good guards and sentinels about his received opinions, to walk the round and counter-round with his fellow inspectors, fearing lest any of his flock be seduced, who also then would be better instructed, better exercised and disciplined. And God send that the fear of this diligence, which must then be used, do not make us affect the laziness of a licensing Church. For if we be sure we are in the right, and do not hold the truth guiltily, which becomes not, if we ourselves condemn not our own weak and frivolous teaching, and the people for an untaught and irreligious gadding rout, what can be more fair than when a man judicious, learned, and of a conscience, for aught we know, as good as theirs that taught us what we know, shall not privily from house to house, which is more dangerous, but openly by writing publish to the world what his opinion is, what his reasons, and wherefore that which is now thought cannot be sound? Christ urged it as wherewith to justify himself, that he preached in public; yet writing is more public than preaching; and more easy to refutation, if need be, there being so many whose business and profession merely it is to be the champions of truth; which if they neglect, what can be imputed but their sloth, or unability? Thus much we are hindered and disinured by this course of licensing, toward the true knowledge of what we seem to know. For how much it hurts and hinders the licensers themselves in the calling of their ministry, more than any secular employment, if they will discharge that office as they ought, so that of necessity they must neglect either the one duty or the other, I insist not, because it is a particular, but leave it to their own conscience, how they will decide it there. There is yet behind of what I purposed to lay open, the incredible loss and detriment that this plot of licensing puts us to; more than if some enemy at sea should stop up all our havens and ports and creeks, it hinders and retards the importation of our richest merchandise, truth; nay, it was first established and put in practice by Antichristian malice and mystery on set purpose to extinguish, if it were possible, the light of Reformation, and to settle falsehood; little differing from that policy wherewith the Turk upholds his Alcoran, by the prohibition of printing. 'Tis not denied, but gladly confessed, we are to send our thanks and vows to Heaven louder than most of nations, for that great measure of truth which we enjoy, especially in those main points between us and the Pope, with his appurtenances the prelates: but he who thinks we are to pitch our tent here, and have attained the utmost prospect of reformation that the mortal glass wherein we contemplate can show us, till we come to beatific vision, that man by this very opinion declares that he is yet far short of truth. Truth indeed came once into the world with her divine Master, and was a perfect shape most glorious to look on: but when he ascended, and his Apostles after him were laid asleep, then straight arose a wicked race of deceivers, who, as that story goes of the Egyptian Typhon with his conspirators, how they dealt with the good Osiris, took the virgin Truth, hewed her lovely form into a thousand pieces, and scattered them to the four winds. From that time ever since, the sad friends of Truth, such as durst appear, imitating the careful search that Isis made for the mangled body of Osiris, went up and down gathering up limb by limb, still as they could find them. We have not yet found them all, Lords and Commons, nor ever shall do, till her Master's second coming; he shall bring together every joint and member, and shall mould them into an immortal feature of loveliness and perfection. Suffer not these licensing prohibitions to stand at every place of opportunity, forbidding and disturbing them that continue seeking, that continue to do our obsequies to the torn body of our martyred saint. We boast our light; but if we look not wisely on the sun itself, it smites us into darkness. Who can discern those planets that are oft combust, and those stars of brightest magnitude that rise and set with the sun, until the opposite motion of their orbs bring them to such a place in the firmament, where they may be seen evening or morning? The light which we have gained was given us, not to be ever staring on, but by it to discover onward things more remote from our knowledge. It is not the unfrocking of a priest, the unmitring of a bishop, and the removing him from off the presbyterian shoulders, that will make us a happy nation. No, if other things as great in the Church, and in the rule of life both economical and political, be not looked into and reformed, we have looked so long upon the blaze that Zuinglius and Calvin hath beaconed up to us, that we are stark blind. There be who perpetually complain of schisms and sects, and make it such a calamity that any man dissents from their maxims. 'Tis their own pride and ignorance which causes the disturbing, who neither will hear with meekness, nor can convince; yet all must be suppressed which is not found in their Syntagma. They are the troublers, they are the dividers of unity, who neglect and permit not others to unite those dissevered pieces which are yet wanting to the body of Truth. To be still searching what we know not by what we know, still closing up truth to truth as we find it (for all her body is homogeneal and proportional), this is the golden rule in theology as well as in arithmetic, and makes up the best harmony in a Church; not the forced and outward union of cold, and neutral, and inwardly divided minds. Lords and Commons of England! consider what nation it is whereof ye are, and whereof ye are the governors: a nation not slow and dull, but of a quick, ingenious and piercing spirit, acute to invent, subtle and sinewy to discourse, not beneath the reach of any point the highest that human capacity can soar to. Therefore the studies of learning in her deepest sciences have been so ancient and so eminent among us, that writers of good antiquity and ablest judgment have been persuaded that even the school of Pythagoras and the Persian wisdom took beginning from the old philosophy of this island. And that wise and civil Roman, Julius Agricola, who governed once here for Caesar, preferred the natural wits of Britain before the laboured studies of the French. Nor is it for nothing that the grave and frugal Transylvanian sends out yearly from as far as the mountainous borders of Russia, and beyond the Hercynian wilderness, not their youth, but their staid men, to learn our language and our theologic arts. Yet that which is above all this, the favour and the love of Heaven, we have great argument to think in a peculiar manner propitious and propending towards us. Why else was this nation chosen before any other, that out of her, as out of Sion, should be proclaimed and sounded forth the first tidings and trumpet of Reformation to all Europe? And had it not been the obstinate perverseness of our prelates against the divine and admirable spirit of Wickliff, to suppress him as a schismatic and innovator, perhaps neither the Bohemian Huns and Jerome, no nor the name of Luther or of Calvin, had been ever known: the glory of reforming all our neighbours had been completely ours. But now, as our obdurate clergy have with violence demeaned the matter, we are become hitherto the latest and the backwardest scholars, of whom God offered to have made us the teachers. Now once again by all concurrence of signs, and by the general instinct of holy and devout men, as they daily and solemnly express their thoughts, God is decreeing to begin some new and great period in his Church, even to the reforming of Reformation itself: what does he then but reveal himself to his servants, and as his manner is, first to his Englishmen? I say, as his manner is, first to us, though we mark not the method of his counsels, and are unworthy. Behold now this vast city: a city of refuge, the mansion house of liberty, encompassed and surrounded with his protection; the shop of war hath not there more anvils and hammers waking, to fashion out the plates and instruments of armed justice in defence of beleaguered truth, than there be pens and heads there, sitting by their studious lamps, musing, searching, revolving new notions and ideas wherewith to present, as with their homage and their fealty, the approaching Reformation: others as fast reading, trying all things, assenting to the force of reason and convincement. What could a man require more from a nation so pliant and so prone to seek after knowledge? What wants there to such a towardly and pregnant soil, but wise and faithful labourers, to make a knowing people, a nation of prophets, of sages, and of worthies? We reckon more than five months yet to harvest; there need not be five weeks; had we but eyes to lift up, the fields are white already. Where there is much desire to learn, there of necessity will be much arguing, much writing, many opinions; for opinion in good men is but knowledge in the making. Under these fantastic terrors of sect and schism, we wrong the earnest and zealous thirst after knowledge and understanding which God hath stirred up in this city. What some lament of, we rather should rejoice at, should rather praise this pious forwardness among men, to reassume the ill-deputed care of their religion into their own hands again. A little generous prudence, a little forbearance of one another, and some grain of charity might win all these diligences to join, and unite in one general and brotherly search after truth; could we but forgo this prelatical tradition of crowding free consciences and Christian liberties into canons and precepts of men. I doubt not, if some great and worthy stranger should come among us, wise to discern the mould and temper of a people, and how to govern it, observing the high hopes and aims, the diligent alacrity of our extended thoughts and reasonings in the pursuance of truth and freedom, but that he would cry out as Pyrrhus did, admiring the Roman docility and courage: If such were my Epirots, I would not despair the greatest design that could be attempted, to make a Church or kingdom happy. Yet these are the men cried out against for schismatics and sectaries; as if, while the temple of the Lord was building, some cutting, some squaring the marble, others hewing the cedars, there should be a sort of irrational men who could not consider there must be many schisms and many dissections made in the quarry and in the timber, ere the house of God can be built. And when every stone is laid artfully together, it cannot be united into a continuity, it can but be contiguous in this world; neither can every piece of the building be of one form; nay rather the perfection consists in this, that, out of many moderate varieties and brotherly dissimilitudes that are not vastly disproportional, arises the goodly and the graceful symmetry that commends the whole pile and structure. Let us therefore be more considerate builders, more wise in spiritual architecture, when great reformation is expected. For now the time seems come, wherein Moses the great prophet may sit in heaven rejoicing to see that memorable and glorious wish of his fulfilled, when not only our seventy elders, but all the Lord's people, are become prophets. No marvel then though some men, and some good men too perhaps, but young in goodness, as Joshua then was, envy them. They fret, and out of their own weakness are in agony, lest these divisions and subdivisions will undo us. The adversary again applauds, and waits the hour: when they have branched themselves out, saith he, small enough into parties and partitions, then will be our time. Fool! he sees not the firm root, out of which we all grow, though into branches: nor will beware until he see our small divided maniples cutting through at every angle of his ill-united and unwieldy brigade. And that we are to hope better of all these supposed sects and schisms, and that we shall not need that solicitude, honest perhaps, though over-timorous, of them that vex in this behalf, but shall laugh in the end at those malicious applauders of our differences, I have these reasons to persuade me. First, when a city shall be as it were besieged and blocked about, her navigable river infested, inroads and incursions round, defiance and battle oft rumoured to be marching up even to her walls and suburb trenches, that then the people, or the greater part, more than at other times, wholly taken up with the study of highest and most important matters to be reformed, should be disputing, reasoning, reading, inventing, discoursing, even to a rarity and admiration, things not before discoursed or written of, argues first a singular goodwill, contentedness and confidence in your prudent foresight and safe government, Lords and Commons; and from thence derives itself to a gallant bravery and well-grounded contempt of their enemies, as if there were no small number of as great spirits among us, as his was, who when Rome was nigh besieged by Hannibal, being in the city, bought that piece of ground at no cheap rate, whereon Hannibal himself encamped his own regiment. Next, it is a lively and cheerful presage of our happy success and victory. For as in a body, when the blood is fresh, the spirits pure and vigorous, not only to vital but to rational faculties, and those in the acutest and the pertest operations of wit and subtlety, it argues in what good plight and constitution the body is; so when the cheerfulness of the people is so sprightly up, as that it has not only wherewith to guard well its own freedom and safety, but to spare, and to bestow upon the solidest and sublimest points of controversy and new invention, it betokens us not degenerated, nor drooping to a fatal decay, but casting off the old and wrinkled skin of corruption to outlive these pangs and wax young again, entering the glorious ways of truth and prosperous virtue, destined to become great and honourable in these latter ages. Methinks I see in my mind a noble and puissant nation rousing herself like a strong man after sleep, and shaking her invincible locks: methinks I see her as an eagle mewing her mighty youth, and kindling her undazzled eyes at the full midday beam; purging and unscaling her long-abused sight at the fountain itself of heavenly radiance; while the whole noise of timorous and flocking birds, with those also that love the twilight, flutter about, amazed at what she means, and in their envious gabble would prognosticate a year of sects and schisms. What would ye do then? should ye suppress all this flowery crop of knowledge and new light sprung up and yet springing daily in this city? Should ye set an oligarchy of twenty engrossers over it, to bring a famine upon our minds again, when we shall know nothing but what is measured to us by their bushel? Believe it, Lords and Commons, they who counsel ye to such a suppressing do as good as bid ye suppress yourselves; and I will soon show how. If it be desired to know the immediate cause of all this free writing and free speaking, there cannot be assigned a truer than your own mild and free and humane government. It is the liberty, Lords and Commons, which your own valorous and happy counsels have purchased us, liberty which is the nurse of all great wits; this is that which hath rarefied and enlightened our spirits like the influence of heaven; this is that which hath enfranchised, enlarged and lifted up our apprehensions, degrees above themselves. Ye cannot make us now less capable, less knowing, less eagerly pursuing of the truth, unless ye first make yourselves, that made us so, less the lovers, less the founders of our true liberty. We can grow ignorant again, brutish, formal and slavish, as ye found us; but you then must first become that which ye cannot be, oppressive, arbitrary and tyrannous, as they were from whom ye have freed us. That our hearts are now more capacious, our thoughts more erected to the search and expectation of greatest and exactest things, is the issue of your own virtue propagated in us; ye cannot suppress that, unless ye reinforce an abrogated and merciless law, that fathers may dispatch at will their own children. And who shall then stick closest to ye, and excite others? not he who takes up arms for coat and conduct, and his four nobles of Danegelt. Although I dispraise not the defence of just immunities, yet love my peace better, if that were all. Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties. What would be best advised, then, if it be found so hurtful and so unequal to suppress opinions for the newness or the unsuitableness to a customary acceptance, will not be my task to say. I only shall repeat what I have learned from one of your own honourable number, a right noble and pious lord, who, had he not sacrificed his life and fortunes to the Church and Commonwealth, we had not now missed and bewailed a worthy and undoubted patron of this argument. Ye know him, I am sure; yet I for honour's sake, and may it be eternal to him, shall name him, the Lord Brook. He writing of episcopacy, and by the way treating of sects and schisms, left ye his vote, or rather now the last words of his dying charge, which I know will ever be of dear and honoured regard with ye, so full of meekness and breathing charity, that next to his last testament, who bequeathed love and peace to his disciples, I cannot call to mind where I have read or heard words more mild and peaceful. He there exhorts us to hear with patience and humility those, however they be miscalled, that desire to live purely, in such a use of God's ordinances, as the best guidance of their conscience gives them, and to tolerate them, though in some disconformity to ourselves. The book itself will tell us more at large, being published to the world, and dedicated to the Parliament by him who, both for his life and for his death, deserves that what advice he left be not laid by without perusal. And now the time in special is, by privilege to write and speak what may help to the further discussing of matters in agitation. The temple of Janus with his two controversial faces might now not unsignificantly be set open. And though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously, by licensing and prohibiting, to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter? Her confuting is the best and surest suppressing. He who hears what praying there is for light and clearer knowledge to be sent down among us, would think of other matters to be constituted beyond the discipline of Geneva, framed and fabricked already to our hands. Yet when the new light which we beg for shines in upon us, there be who envy and oppose, if it come not first in at their casements. What a collusion is this, whenas we are exhorted by the wise man to use diligence, to seek for wisdom as for hidden treasures early and late, that another order shall enjoin us to know nothing but by statute? When a man hath been labouring the hardest labour in the deep mines of knowledge, hath furnished out his findings in all their equipage: drawn forth his reasons as it were a battle ranged: scattered and defeated all objections in his way; calls out his adversary into the plain, offers him the advantage of wind and sun, if he please, only that he may try the matter by dint of argument: for his opponents then to skulk, to lay ambushments, to keep a narrow bridge of licensing where the challenger should pass, though it be valour enough in soldiership, is but weakness and cowardice in the wars of Truth. For who knows not that Truth is strong, next to the Almighty? She needs no policies, nor stratagems, nor licensings to make her victorious; those are the shifts and the defences that error uses against her power. Give her but room, and do not bind her when she sleeps, for then she speaks not true, as the old Proteus did, who spake oracles only when he was caught and bound, but then rather she turns herself into all shapes, except her own, and perhaps tunes her voice according to the time, as Micaiah did before Ahab, until she be adjured into her own likeness. Yet is it not impossible that she may have more shapes than one. What else is all that rank of things indifferent, wherein Truth may be on this side or on the other, without being unlike herself? What but a vain shadow else is the abolition of those ordinances, that hand-writing nailed to the cross? What great purchase is this Christian liberty which Paul so often boasts of? His doctrine is, that he who eats or eats not, regards a day or regards it not, may do either to the Lord. How many other things might be tolerated in peace, and left to conscience, had we but charity, and were it not the chief stronghold of our hypocrisy to be ever judging one another? I fear yet this iron yoke of outward conformity hath left a slavish print upon our necks; the ghost of a linen decency yet haunts us. We stumble and are impatient at the least dividing of one visible congregation from another, though it be not in fundamentals; and through our forwardness to suppress, and our backwardness to recover any enthralled piece of truth out of the gripe of custom, we care not to keep truth separated from truth, which is the fiercest rent and disunion of all. We do not see that, while we still affect by all means a rigid external formality, we may as soon fall again into a gross conforming stupidity, a stark and dead congealment of wood and hay and stubble, forced and frozen together, which is more to the sudden degenerating of a Church than many subdichotomies of petty schisms. Not that I can think well of every light separation, or that all in a Church is to be expected gold and silver and precious stones: it is not possible for man to sever the wheat from the tares, the good fish from the other fry; that must be the Angels' ministry at the end of mortal things. Yet if all cannot be of one mind--as who looks they should be?--this doubtless is more wholesome, more prudent, and more Christian, that many be tolerated, rather than all compelled. I mean not tolerated popery, and open superstition, which, as it extirpates all religions and civil supremacies, so itself should be extirpate, provided first that all charitable and compassionate means be used to win and regain the weak and the misled: that also which is impious or evil absolutely either against faith or manners no law can possibly permit, that intends not to unlaw itself: but those neighbouring differences, or rather indifferences, are what I speak of, whether in some point of doctrine or of discipline, which, though they may be many, yet need not interrupt THE UNITY OF SPIRIT, if we could but find among us THE BOND OF PEACE. In the meanwhile if any one would write, and bring his helpful hand to the slow-moving Reformation which we labour under, if Truth have spoken to him before others, or but seemed at least to speak, who hath so bejesuited us that we should trouble that man with asking license to do so worthy a deed? and not consider this, that if it come to prohibiting, there is not aught more likely to be prohibited than truth itself; whose first appearance to our eyes, bleared and dimmed with prejudice and custom, is more unsightly and unplausible than many errors, even as the person is of many a great man slight and contemptuous to see to. And what do they tell us vainly of new opinions, when this very opinion of theirs, that none must be heard but whom they like, is the worst and newest opinion of all others; and is the chief cause why sects and schisms do so much abound, and true knowledge is kept at distance from us; besides yet a greater danger which is in it. For when God shakes a kingdom with strong and healthful commotions to a general reforming, 'tis not untrue that many sectaries and false teachers are then busiest in seducing; but yet more true it is, that God then raises to his own work men of rare abilities, and more than common industry, not only to look back and revise what hath been taught heretofore, but to gain further and go on some new enlightened steps in the discovery of truth. For such is the order of God's enlightening his Church, to dispense and deal out by degrees his beam, so as our earthly eyes may best sustain it. Neither is God appointed and confined, where and out of what place these his chosen shall be first heard to speak; for he sees not as man sees, chooses not as man chooses, lest we should devote ourselves again to set places, and assemblies, and outward callings of men; planting our faith one while in the old Convocation house, and another while in the Chapel at Westminster; when all the faith and religion that shall be there canonized is not sufficient without plain convincement, and the charity of patient instruction to supple the least bruise of conscience, to edify the meanest Christian, who desires to walk in the Spirit, and not in the letter of human trust, for all the number of voices that can be there made; no, though Harry VII himself there, with all his liege tombs about him, should lend them voices from the dead, to swell their number. And if the men be erroneous who appear to be the leading schismatics, what withholds us but our sloth, our self-will, and distrust in the right cause, that we do not give them gentle meetings and gentle dismissions, that we debate not and examine the matter thoroughly with liberal and frequent audience; if not for their sakes, yet for our own? seeing no man who hath tasted learning, but will confess the many ways of profiting by those who, not contented with stale receipts, are able to manage and set forth new positions to the world. And were they but as the dust and cinders of our feet, so long as in that notion they may yet serve to polish and brighten the armoury of Truth, even for that respect they were not utterly to be cast away. But if they be of those whom God hath fitted for the special use of these times with eminent and ample gifts, and those perhaps neither among the priests nor among the Pharisees, and we in the haste of a precipitant zeal shall make no distinction, but resolve to stop their mouths, because we fear they come with new and dangerous opinions, as we commonly forejudge them ere we understand them; no less than woe to us, while, thinking thus to defend the Gospel, we are found the persecutors. There have been not a few since the beginning of this Parliament, both of the presbytery and others, who by their unlicensed books, to the contempt of an Imprimatur, first broke that triple ice clung about our hearts, and taught the people to see day: I hope that none of those were the persuaders to renew upon us this bondage which they themselves have wrought so much good by contemning. But if neither the check that Moses gave to young Joshua, nor the countermand which our Saviour gave to young John, who was so ready to prohibit those whom he thought unlicensed, be not enough to admonish our elders how unacceptable to God their testy mood of prohibiting is; if neither their own remembrance what evil hath abounded in the Church by this set of licensing, and what good they themselves have begun by transgressing it, be not enough, but that they will persuade and execute the most Dominican part of the Inquisition over us, and are already with one foot in the stirrup so active at suppressing, it would be no unequal distribution in the first place to suppress the suppressors themselves: whom the change of their condition hath puffed up, more than their late experience of harder times hath made wise. And as for regulating the press, let no man think to have the honour of advising ye better than yourselves have done in that Order published next before this, "that no book be printed, unless the printer's and the author's name, or at least the printer's, be registered." Those which otherwise come forth, if they be found mischievous and libellous, the fire and the executioner will be the timeliest and the most effectual remedy that man's prevention can use. For this authentic Spanish policy of licensing books, if I have said aught, will prove the most unlicensed book itself within a short while; and was the immediate image of a Star Chamber decree to that purpose made in those very times when that Court did the rest of those her pious works, for which she is now fallen from the stars with Lucifer. Whereby ye may guess what kind of state prudence, what love of the people, what care of religion or good manners there was at the contriving, although with singular hypocrisy it pretended to bind books to their good behaviour. And how it got the upper hand of your precedent Order so well constituted before, if we may believe those men whose profession gives them cause to inquire most, it may be doubted there was in it the fraud of some old patentees and monopolizers in the trade of bookselling; who under pretence of the poor in their Company not to be defrauded, and the just retaining of each man his several copy, which God forbid should be gainsaid, brought divers glossing colours to the House, which were indeed but colours, and serving to no end except it be to exercise a superiority over their neighbours; men who do not therefore labour in an honest profession to which learning is indebted, that they should be made other men's vassals. Another end is thought was aimed at by some of them in procuring by petition this Order, that, having power in their hands, malignant books might the easier scape abroad, as the event shows. But of these sophisms and elenchs of merchandise I skill not. This I know, that errors in a good government and in a bad are equally almost incident; for what magistrate may not be misinformed, and much the sooner, if liberty of printing be reduced into the power of a few? But to redress willingly and speedily what hath been erred, and in highest authority to esteem a plain advertisement more than others have done a sumptuous bride, is a virtue (honoured Lords and Commons) answerable to your highest actions, and whereof none can participate but greatest and wisest men. 
60300	----	images of public domain material from the Google Books project.) THE NEW JERSEY LAW JOURNAL PUBLISHED MONTHLY VOLUME XLV MARCH, 1922 No. 3 EDITORIAL NOTES. HAPPILY IT IS not such a frequent occurrence as may be supposed that the Judges of our Court of Errors and Appeals split apart so curiously as they did in determining that the Van Ness Enforcement Act should be declared unconstitutional. The result only shows that, like the doctors, Judges cannot all think alike. On the subject of whether whiskey is useful as a medicine or not our New Jersey doctors, on a canvass, split, 520 to 308, or 490 to 319, according as one interprets the replies. In the Nation at large it ran 51 per cent. to 49 per cent., a closer margin. But only half of those who were interrogated by the "Journal of the American Medical Association" responded; what the rest thought we do not know. So on the legal questions involved in the Van Ness Act, counting those Judges who approved the Act as constitutional in the Supreme Court, the difference between a yea and nay vote appears to have been only one. On the subject of whether the Act could be sustained because it took away from defendants the right of trial by jury, which was the great burden in objections made by defendants themselves, the Court held what this Journal has held, that the Legislature had the power to direct that trials might be by magistrates without a jury. It had done so over and over again in other matters and could do so in liquor legislation as well. On other points there were various differences of opinion. However, since the Act as a whole is declared unconstitutional, on the ground that it does not conform to the Federal Act, which declares that the illegal possession, sale, etc., of liquors constitute a crime, instead of disorderliness, the Legislature has passed new statutes which alter the basis of a conviction from a disorderly proceeding to a criminal proceeding. There is no hope in this for bootleggers, except as it permits them to escape by jury disagreements or "not guilty" verdicts. If no law were enacted the Federal Courts would be filled with cases, and the results there would give no hope to criminals. Generally speaking, the upsetting of the Van Ness Act is unfortunate, because jury trials are expensive as well as uncertain; trials before Judges as magistrates are more certain and far less expensive. In the end, however, bootleggers will not win in the game. * * * * * On the question of the legality of "picketing" by strikes the Court of Errors and Appeals of this State also held quite divergent views, but sustained the Keuffel & Esser injunction granted by Vice-Chancellor Buchanan against the International Association of Machinists. The majority decision of the Court was rendered on Jan. 26th, in an opinion by Mr. Justice Swayze. His finding was sustained by 9 affirmative and 5 negative votes. Besides Justice Swayze, the members of the Court voting to affirm were Justices Parker, Bergen, Kalisch and Katzenbach, and Judges White, Williams, Gardner and Ackerson. Voting to reverse were Chief Justice Gummere, Justices Trenchard, Minturn and Black and Judge Van Buskirk. "The object of the appeal avowedly is," said Justice Swayze, "to secure a decision as to the legality of picketing when unaccompanied with violence, molestation of others, annoying language or conduct--in short, what is sometimes called peaceful picketing. Parading in the neighborhood of complainants with placards indicating that a strike is in progress is similar in its legal character to picketing." He then pointed out that the Court is bound in a measure by the recent decision of the Supreme Court of the United States in the case of the American Steel Foundries v. The Tri-City Central Trades Council, in which Chief Justice Taft wrote an opinion upon the rights of strikers, both at common law and as governed by the Clayton act. Taking the Federal decision as a foundation, Justice Swayze said it held the employer had the right to the access of his employés to his place of business and of egress therefrom, without intimidation or obstruction; and the employés, recent or expectant, had the right to use peaceable and lawful means to induce present employés and would-be employés to join their ranks. He remarked that the legality of any particular conduct depends on the facts of the particular case and that picketing may or may not be lawful, as it has or has not an immediate tendency to intimidate the other party to the controversy. Remarking that picketing is illegal if it has an immediate tendency to obstruct free passage such as the streets afford, consistent with the rights of others to enjoy the same privilege, Justice Swayze continued: "Thus men may accost one another with a view of influencing action, but may not resort to persistence, importunity, following and dogging. The number of pickets may of itself make the picketing unlawful, since it may amount to intimidation. Everyone knows that threats of bodily harm may be made by a mere show of force, without violence of language or breach of the peace, and that mere numbers may intimidate. The real question is, 'Does the conduct under existing facts amount to intimidation?' Twenty-five or fifty pickets may, when a single picket probably would not. If information alone were wanted in the pending case, all the information necessary for the defendants to enable them to prosecute their efforts to convert the complainants employés would have been obtained by a few men. The use of twenty-five or fifty or two hundred, as in fact used, was clearly unnecessary, and could not have been intended for any lawful purpose. In view of the testimony as to what actually went on, the Vice-Chancellor properly held that the conduct of the defendants was an illegal interference with the complainants' property rights." * * * * * The opinion noted above is, in the whole, a lengthy one. Judge White concurred in it in a separate opinion. Justice Minturn filed a strong dissenting view, taking the ground that the Court's conclusion served to mark another step in the cycle of judicial legislation, which, beginning with an appropriate effort to curb agitation of a forcible character, has concluded with an edict which will be construed to put an end to peaceable and constitutional economic agitation. "Nothing further," he said, "would seem to be necessary to complete the chaplet of judicial legislation, unless it be the invocation of the provisions of the statute of laborers (Edward III.), under the provisions of which the laborer was effectually conscripted to the service of the master, and to that end was hounded as a helot, and labeled with the brand of Cain. In every other walk of life the peaceful activities condemned by these adjudications are quiescently tolerated, if not approving recognized." * * * * * The cash bonus asked--not asked but demanded in formal resolutions--by various of the associations of the American Legion throughout the country, and which has given the present Congress and the President more concern than almost any domestic subject, has not struck a responsive chord in the popular ear except from the soldiers--a minority of them, as we believe--who want it. Every business man knows it is not the time to pension well soldiers of the late war further than the States are doing it. We have always doubted that the best officers and soldiers of the country were behind the movement. It is to belittle their patriotism to believe that they desire to foist billions of taxes, direct or indirect, upon their country at the present moment. * * * * * When Senator Edge told an assembly at Atlantic City recently that the Senate of the United States, of which he is a member, failed alarmingly in performing its proper duties in a speedy and efficient manner, he only stated what public opinion has long held. The mere fact, to which he did not allude however, that a few men can talk any good project before that body to death, the Senate rules permitting unlimited debate, has served again and again to prove the truth of his statements. The House of Representatives, with its too-many members, is far more reflective of public sentiment than the Senate, and actually does its work more expeditiously when a majority of members desire quick action. A reform in the Senate is of such importance that too much public attention to its improper methods of carrying on public business cannot be given. The press of the country should be a unit in demanding a change in methods and results. The New York "Times" thinks the trouble is largely due to the fact that there is a dearth of strong men in the Senate; that there is no great inducement for a strong man to go to the Senate as a new member, because he is practically "frozen out" of any good committee assignment for a long period of time. It says of a new member: "What will happen to him when he takes his seat in the Senate? He will get only insignificant committee appointments. He will be expected to be silent for at least six months. If he undertakes, as a new Senator, to impress upon the Senate any positive convictions of his own, he will be 'hazed' like a college freshman in the effort to teach him his place. If there is in the Senate a 'career open to talent,' it is open only after long waiting. In short, the Senate that now professes an anxiety for the accession of strong men itself puts formidable obstacles in the way of a strong man. Its rules, as Senator Wadsworth has just been lamenting, make it almost impossible to transact business. Its time is mostly taken up by querulous and ineffective members. Its committees are manned by the rule of seniority, which too often spells senility. Indeed, about the only way in which the Senate as it is at present can be said to be a nursery of political strength is in accordance with the maxim, Suffer and be strong. A Senator who can survive for a few years the suffering, mental and moral, which he has to undergo in the Senate, may emerge into power and influence. But upon the strong man just arrived the Senate always puts a damper." Lots of truth in this. Nevertheless, present Senate rules combined with too much politics and too little statesmanship and business activity are responsible for a deterioration of the public esteem for our highest governing body. * * * * * Dean Stone of the Columbia University Law School of New York City in a report to the President of that Institution made recently sounds a proper warning as to the quality and numbers of young men crowding into the Bars of many of the States. Among other things he said: "It may well be doubted whether there is any profession which makes greater demands than the law on the capacity of its members for sustained intellectual efforts, their powers of discrimination and their ability to master detail. Yet, as I have often had occasion to point out in these reports, increasing numbers of men of mediocre ability and inadequate preliminary education are being attracted to the law by the ever-increasing facilities for law study. What, under the conditions of law study and admission to the Bar of a generation ago, was a task of magnitude testing the patience, stability, character and intellectual power of the prospective lawyer to the utmost may now be performed with relative ease. This is partly attributable to the multiplication of opportunities for law and study nicely adapted to the peculiar type of Bar examination prevailing in most of our States, and partly because Law Schools and Bar examinations too often place the interests of the individual law student and sometimes their own interests ahead of the interests of the profession. It is the duty of Law Schools to dissuade the man of ordinary ability and meagre education from beginning law study, and, if he will not be dissuaded, to apply to him standards of proficiency and attainment worthy of the profession to whose membership he aspires." * * * * * The Washington Conference is over and the results are more than gratifying. Only the blindest obtuseness on the part of the United States Senate has prevented early ratification of the various treaties made by it. The great point gained by this Conference is that it brought Great Britain, France, Japan, China and five other powers face to face in friendliest attitude, and this is what should happen again when occasion calls for it. Every country represented is happy over the result, and to say that America should be is a truism. It marked another great event in world history. * * * * * Some day perhaps, every moving-picture theatre will have this description of the art it employs on its front curtain, for is it not the lucid description recently published in a magazine devoted to the "sublime art" of motion-picture writing? And it will be good for school boys and girls to interpret: "The photodramatist enters the great cosmic drama in keeping with the Infinite Plan; he will be, in the expanse of days to come, a master of new values in art, science, philosophy, religion. From the fastnesses of the invisible world of Thought, fulgurous forces of the very essence of Beauty are sweeping into his consciousness, attracted by the human desire for more complete expression." SOME REMINISCENCES, MOSTLY LEGAL. BY HON. FREDERIC ADAMS, LOS ANGELES, CALIFORNIA. V. SOME NEW JERSEY COURTS AND LAWYERS. In the early autumn of 1862, nearly sixty years ago, I became a law student in the office of Amzi Dodd, in Newark. Mr. Dodd was then at the best of his mental and physical strength. In his office I came to know, admire and revere him, and there was begun a cordial friendship between us which continued unbroken until he passed away in extreme old age. I think that there was not in New Jersey a sounder legal head than his, nor a better balanced and more sagacious legal judgment. Nor was this all. He was profoundly ethical, not obtrusively but sensitively. There was a voice within to which he always listened, and he rested firmly on the fundamental morals which are part of the religion of every good man and underlie the Law itself. Nor was this all, for to the innermost recesses of his nature he was devoutly, rationally and serenely Christian. Mr. Dodd was a Princeton graduate and a contemporary of three remarkable Rutgers men, Cortlandt Parker, Frederick T. Frelinghuysen and Joseph P. Bradley, any one of whom would have conferred distinction on any Bar in the country. Mr. Dodd, though a good and persuasive speaker, had not the oratorical charm of Mr. Frelinghuysen, nor the forensic power of Mr. Parker. He and Mr. Bradley had a good deal in common. Both were scholarly, excellent mathematicians, and had the judicial stamp. In my first year with Mr. Dodd I had an interesting experience. His cousin, Chief Justice Edward W. Whelpley, came to Newark to hold the Essex Circuit, pursuant, I suppose, to some arrangement with Judge Daniel Haines. He was in the office almost every day, and I lost no opportunity to attend Court and hear him try cases. He was an impressive figure, a big man with a heavy voice and a commanding manner. I have sometimes wondered since whether he was really as powerful a Judge as he then seemed to me to be, or whether perhaps his dominating personality threw a kind of spell over me. I remember that his charge would often efface the impressions made by the arguments of counsel. He seemed to be in exuberant health and spirits, and to have before him the prospect of many years of usefulness and distinction. He died on February 22, 1864, and was succeeded by Mercer Beasley, who held office for thirty-three years, and wrote his name high on the scroll of New Jersey worthies. I wonder how many of the Essex Bar now remember seeing Chief Justice Whelpley at the Essex Circuit. He held the Union Circuit also, and, I have heard, used to get his dinner in New York on the ground that there was nothing fit to eat in Union county. He was probably unfortunate in his choice of a restaurant, or perhaps his requirements were unusual, for he is said to have spoken unfavorably of our national bird, the turkey, because a turkey is "too much for one and not enough for two." Judge Haines left the Bench at the expiration of his term on November 15, 1866, and was succeeded by David A. Depue, who held office as Judge and Chief Justice and was a strong pillar of society, until November 16, 1901. A Persian proverb says that a Stone fit for the wall is never left in the road, and so, as it was according to the evident fitness of things that Mr. Dodd should become a Judge, that event came to pass when Chancellor Zabriskie, in 1871, appointed him the first Vice-Chancellor. In 1875 he resigned his office, and in 1881 was reappointed by Chancellor Runyon. He became also a specially appointed Judge of the Court of Errors and Appeals, thus strengthening its equity side. In a Court many of whose most important issues are in equity, and one of whose members is the Chancellor, who is precluded from sitting in equity cases, it is always well that some of the Judges should have, or have had, the valuable experience of sitting alone in equity, and dealing at first hand with the rules of equity practice and procedure. This has been the case with Justice Bergen and Mr. Dodd. No other instances occur to me. The highwater mark of Vice Chancellor Dodd's judicial duty was reached in the memorable case of Pennsylvania R. R. Co. v. National Railway Co., 23 Equity 441, decided at the February term, 1873. This was before the General Railroad Law, and there was a strong movement, backed by much public opinion, and attended by some public excitement and high feeling, to break the monopoly of the Pennsylvania Railroad Company by uniting interests and connecting existing roads, so as to secure an independent through line between New York and Philadelphia. The purpose was meritorious, for the State needed another through line. The case which Vice-Chancellor Dodd decided was in form an application to enjoin the National Railway Company from proceeding with the construction of its road in New Jersey with intent to use it as part of a through line from New York to Philadelphia. The argument which, with the reading of proofs, took two weeks, was upon a rule to show cause why an injunction should not issue pursuant to the prayer of the bill. Attorney-General Stockton, Mr. Theodore Cuyler and others were counsel for the complainant, and Mr. Cortlandt Parker and others represented the defendants. I went to Trenton to hear the opinion. The reading of it took about an hour. The gist of the opinion, which was for the complainant, was this,--not that several links might not form a chain, but that the defendants' so-called links formed no chain because the legislative acts which created them indicated no intent that they should connect. The opinion shows Vice-Chancellor Dodd's strong judicial qualities; admirable language and style, clear statement, controversial force, persuasive reasoning and exposition, all, in their combination, leading up to a high level of jurisprudence. I know of nothing in the New Jersey books more skillful or nobly ethical than portions of this opinion. Vice-Chancellor Dodd would not have esteemed it praise to be told that the case was a test of his nerve, for, though his feelings were easily wounded, he was far above being moved by clamor, either before or after a decision. I will not dwell on Vice-Chancellor Dodd's other opinions. They are numerous and may be consulted in the volumes in which they are printed, beginning with 22nd Equity. A strong magnet was drawing Vice-Chancellor Dodd away from the law to a pursuit attractive to one of his mathematical bent: I mean the intellectual side of the science and art of life insurance, and it finally captured him. Perhaps some readers of the New Jersey Law Journal have been favored, as I have been, by polite letters from one or more insurance companies, offering options between two or three propositions about equally unintelligible, and have, perhaps improvidently, solved the problem by selecting the one which seemed to promise most immediate cash. To such persons, if any there be, I respectfully commend the perusal of a valued and interesting book of about four hundred pages which lies before me, entitled "Reports to the Board of Directors of the Mutual Benefit Life Insurance Company, made by Amzi Dodd as Mathematician or President, from October, 1877, to January 21, 1901." I can say like Hamlet, "I am ill at these numbers," if I may be pardoned for perverting the meaning of the Prince of Denmark, but I have sufficient comprehension to see that the same man wrote the opinions and the reports, and that they are characterized by the same high mental and moral qualities. Mr. Dodd was fond of Governor William Pennington and liked to talk about him. They became acquainted when they met in a cow case at Orange. An old woman's cow was run down and killed by a Morris & Essex train and young Dodd sued the railroad. It had not then been judicially determined in New Jersey whether a cow or the locomotive had the superior right of way. The case was tried before a Justice of the Peace with a jury. Dodd was very much on his good behavior and treated the Governor with extreme courtesy. He had the crowd with him and triumphantly won the verdict. The next day Governor Pennington called on him, or sent for him, complimented him on his management of the case, and spoke of his own friendship with Amzi Dodd, an uncle of young Amzi, who was a capable Newark lawyer, a careless, unsystematic man of whom I heard Mr. Cortlandt Parker tell that he carried his papers in his hat, and was said sometimes to lose both hat and papers together. One day, Amzi Dodd, the uncle, came into Governor Pennington's office and said: "Good morning, Governor. Confound these young fellows! They get all my books away from me. Now there is 'Elmer's Forms.' I own a copy of it, and it has my name in it, but it is gone. It is a very useful book. I need it every day. Governor, have you a copy that you can let me have?" Governor Pennington, who was a courtly gentleman of the old school and something of a wag, answered very gravely: "Mr. Dodd, I agree with you about 'Elmer's Forms.' It is an excellent office book. I consult it every day and should be sorry to be without it, but you know, Mr. Dodd, that I am always ready to oblige you, and I will cheerfully let you have it if you will promise in writing to return it when I need it." "Certainly," said Mr. Dodd, and dashed off a serio-comic agreement to return the book when called for. He folded the document and handed it to the Governor, and the Governor handed him his own missing book. I told this to my old Yale friend, William Pennington of Paterson, a nephew of the Governor, who chuckled and said, "I can see him doing it." Governor Pennington used often to associate young Dodd with him in the trial of causes. He had been Governor under the old Constitution and _ex-officio_ Chancellor, but was not scholarly and relied very much on his knowledge of the world, tact, and strong common sense. Mr. Dodd once told me that while the Governor knew very little law, he was a most dangerous antagonist before a jury. If he had the close he was almost sure to get the jury with him, and if you had the close he would sit in front of the jury and smile your speech away. Mr. Dodd is my authority for this story: Ex-Governor Daniel Haines, the Justice of the Supreme Court who held the Essex Circuit, was a man of strict views, and Mr. Cortlandt Parker, the Prosecutor of the Pleas, was discharging his important duties with a force and efficiency worthy of national issues and a wider stage, and so, what with the austerity of the Judge and the zeal of the Prosecutor, the way of the transgressor was growing hard, and it was getting to be common talk among the rounders and hangers-on at the courthouse that if a man was indicted he might as well plead guilty at once and save the county the expense of a trial. Some malefactor, with more money or spirit than the others, paid Governor Pennington a good fee and instructed him to fight. The Governor had been informed of the current gossip, and thought he would see what he could make out of it. So he told the jury in his most impressive manner, that a man is taken to be innocent until he is proved to be guilty; that this is the palladium of our liberties; and that he feared that this precious, fundamental right was not sufficiently borne in mind, even in the courthouse of the county of Essex, and that it was too much assumed that conviction ought to follow indictment. At this point Judge Haines, with a flushed face and his eyes shining brightly through his gold-rimmed spectacles, interrupted the Governor, and said that he had heard the remarks of the distinguished counsel with much surprise and regret; that they conveyed an imputation upon the Court itself--an intimation that he was derelict in his duty toward an important class of suitors, the defendants in criminal cases, and that he desired to know and now asked counsel to state from what persons he heard these strictures upon the Court. Governor Pennington, with his usual urbanity, bowed and said: "It is mainly from the criminals themselves." This answer occasioned such a sudden revulsion of thought and feeling as to discompose the Judge and convulse the Bar. It is now just seventy years since Mr. Dodd went to Trenton to hear and see Daniel Webster and Rufus Choate in the case of Charles Goodyear against Horace H. Day, pending in the Circuit Court of the United States before Judge Grier of the Supreme Court, and a District Judge. There is probably now no living member of the Bench or Bar of New Jersey who attended that trial even as a spectator. As to this case I quote briefly from Mr. Choate's "Commemorative Discourse" on Webster, delivered at Dartmouth College on July 27, 1852: "The professional life of Mr. Webster began in the spring of 1805. It may not be said to have ended until he died; but I do not know that it happened to him to appear in Court, for the trial of a cause, after his argument of the Goodyear patent for improvements in the preparation of India-rubber, in Trenton, in March, 1852. There I saw him and last heard him. The thirty-four years which had elapsed since, a member of this College, at home for health, I first saw and heard him in the Supreme Court of Massachusetts, in the county of Essex, defending Jackman, accused of the robbery of Goodrich, had in almost all things changed him. The raven hair, the vigorous, full frame and firm tread, the eminent but severe beauty of the countenance, not yet sealed with the middle age of man, the exuberant demonstration of all sorts of power, which so marked him at first--for these, as once they were, I explored in vain. Yet how far higher was the interest that attended him now: his sixty-nine years robed, as it were, with honor and with love, with associations of great service done to the State, and of great fame gathered and safe; and then the perfect mastery of the cause in its legal and scientific principles, and in all its facts; the admirable clearness and order in which his propositions were advanced successively; the power, the occasional high ethical tone, the appropriate eloquence, by which they were made probable and persuasive to the judicial reason--these announced the leader of the American bar, with every faculty and every accomplishment, by which he had won that proud title, wholly unimpaired; the eye not dim nor the natural force abated." Mr. Webster represented Goodyear, Mr. Choate represented Day. The injunction which Goodyear applied for was granted. Day surrendered his license, transferred his factory and machinery to a representative of Goodyear, and agreed to retire from the business for the sum of $350,000, and counsel fees amounting to $21,000 additional, which amounts were paid. Mr. Webster's retainer was $15,000. Mr. Dodd liked to talk about this case. Mr. Webster and Mr. Choate each spoke for two days, or parts of two days. Chancellor Green is said to have called Mr. Choate's argument the finest that he ever heard in Court. Lawyers came from all over the State to attend the trial. Mr. Dodd said that at times Mr. Choate would seem "to go up like a balloon." One who has heard or even read Choate knows how at times he would seem to lift himself and his audience on the rushing wings of his magical oratory. One of the junior counsel for Day had made some impression by dwelling on the hardships of operatives if the injunction should be granted. The day was getting late and Judge Grier suggested to Mr. Webster, who was to speak next, that the Court adjourn until the next day. Mr. Webster assented, but said: "There is one thing that I wish to say now. If Mr. Day's operatives are likely to be distressed, it will be because of his own default, of his own breach of faith, of his own repudiation of his own solemn contract, under his own hand and seal," and, as he said it, his voice deepened and his eyes flashed, and the courtroom rang as with a peal of mellow thunder. Mr. Dodd came out of Court with ex-Chancellor Halsted who said: "Well, Amzi, the old lion has given his first growl." The case is reported in 10 Federal Cases, page 638, Case No. 5569. In a footnote is this extract from Mr. Webster's argument. It is interesting, for it shows him at his very best and is not generally known. His biographer, Mr. G. T. Curtis, speaks of this argument as one of the most remarkable and interesting of his forensic efforts. "I believe," said Mr. Webster, "that the man who sits at this table, Charles Goodyear, is to go down to posterity in the history of the Arts in this country, in that great class of inventors at the head of which stands Robert Fulton, in which class stand the names of Whitney and of Morse, and in which class will stand '_non post long intervallo_' the humble name of Charles Goodyear. Notwithstanding all the difficulties he encountered he went on. If there was reproach he bore it. If poverty, he suffered under it; but he went on, and these people followed him from step to step, from 1834 to 1839, or until a later period when his invention was completed, and then they opened their eyes with astonishment. They then saw that what they had been treating with ridicule was sublime; that what they had made the subject of reproach was the exercise of great inventive genius; that what they had laughed at was the perseverance of a man of talent with great perceptive faculties, which had brought out a wonder as much to their astonishment as if another sun had arisen in the hemisphere above. He says of his cell in the debtors' jail that 'it is as good a lodging as he may expect this side the grave'; he hopes his friends will come and see him on the subject of India rubber manufacture; and then he speaks of his family and of his wife. He had but two objects, his family and his discovery. In all his distress and in all his trials his wife was willing to participate in his sufferings, and endure everything, and hope everything; she was willing to be poor; she was willing to go to prison, if it was necessary, when he went to prison; she was willing to share with him everything; and that was his solace. May it please your honors, there is nothing upon the earth that can compare with the faithful attachment of a wife; no creature who, for the object of her love, is so indomitable, so persevering, so ready to suffer and to die. Under the most depressing circumstances woman's weakness becomes mighty power; her timidity becomes fearless courage; all her shrinking and sinking passes away, and her spirit acquires the firmness of marble--adamantine firmness, when circumstances drive her to put forth all her energies under the inspiration of her affections. Mr. Goodyear survived all this, and I am sure he would go through the same suffering ten times again for the same consolation. He carried on his experiments perseveringly, and with success, and obtained a patent in 1844 for his great invention." There is a spirited report of the same case in 2 Wallace Jr., where, at pages 294 and 295, are some turns of thought and expression very characteristic of Mr. Webster. A few months later, on October 24, 1852, Daniel Webster died at Marshfield. Years after the Trenton trial Mr. Dodd was in Boston, and was inclined to call on Mr. Choate, at his office, but at the very door his diffidence made him withdraw. He should have gone on. An opportunity was lost. It was said of Mr. Choate that he treated every man with the courtesy due to a woman, and every woman as though she were a queen. He bore interruptions cheerfully, almost gladly. Mr. Choate would have been found working at a standing desk covered with his hieroglyphic notes, undecipherable except by himself; he would have cordially owned his visitor's fraternal claim to his attention; and he would have kindled to the depths of his nature at the memory of his last encounter with his mighty friend. * * * * * That the sale of whisky is prohibited by law is held in Ellis v. Com. 186 Ky. 494, 217 S. W. 368, not to deprive it of its character as goods, wares, and merchandise, and a thing of value, within the meaning of a statute providing for punishment of one breaking into a storehouse and taking therefrom goods, wares, and merchandise or other thing of value. IN RE B. & B. MOTOR SALES CORPORATION. (U. S. Dist. Court, Dist. of New Jersey, Jan. 18, 1922). _Bankruptcy--Sale of Auto Truck--Conditional Agreement and Its Transfer--Right to Possession of Property--Uniform Conditional Sales Act_. In the matter of B. & B. Motor Sales Corporation, bankrupt. On exceptions to Master's report denying The First People's Trust petition for certain property held by the Receiver. Mr. Harry Green for Exceptants, The First People's Trust. Mr. Barney Larkey for the Receiver. RELLSTAB, District Judge: The First People's Trust excepts to the Master's findings that it is not entitled to Apex truck No. 5365, found in the possession of the B. & B. Motor Sales Corporation (hereinafter called the bankrupt,) at the time the receiver took charge of the bankrupt's estate. The facts are: The bankrupt carried on the business of buying and selling auto trucks. On July 12, 1920, it agreed in writing with Robert Jones to sell him the truck in question for $1,955, payable in monthly installments. In this writing (called a "conditional sale agreement"), signed by both parties, it was declared, inter alia, that the bankrupt had that day delivered the truck to the buyer; that the title to the truck was not to pass to the buyer, but was to "remain vested in and be the property of the seller or assigns until the purchase price has been fully paid;" that if Jones failed to pay any of the installments when due the bankrupt might without demand, notice, or process, take possession of the truck, whereupon Jones' right therein should terminate absolutely, and all payments made thereon be restrained by the bankrupt as liquidated damages and rent. At the same time, Jones executed two notes to the bankrupt, one for the sum of $1,427.15 (in the conditional sale agreement recited to be the balance to be paid on the truck), payable in twelve monthly installments, wherein it was declared that "upon default in the payment of any installment when due, the whole amount remaining unpaid shall immediately become due;" the other note represented the remainder (or some part of it) of the purchase price. Both the conditional sale agreement and the $1,427.15 note subsequently were transferred by the bankrupt to the First People's Trust. The transfer of the agreement is dated July 12, 1920, and recites that it is simultaneous with the purchase of the note; in terms it sells, assigns and transfers the bankrupt's right, title and interest in the automobile in question and also in the conditional sale agreement, and asserts that the automobile was sold and not consigned to the buyer. The transfer of the note bears no date, is in the form of an endorsement, guarantees payment of the note, principal and interest, waives demand and protest, and is signed by the bankrupt by its President and Secretary, and by the same persons individually. Jones had possession of the truck for several months, and, after making some of the stipulated payments, defaulted in further payments on both notes. The bankrupt repossessed itself of the truck, and was in possession thereof at the time the receiver took charge. Neither the conditional sale agreement nor the assignment was recorded. No rights or interests of any purchaser or creditor of Jones, the buyer, are involved in these proceedings, the controversy being exclusively between the assignee of the conditional sale agreement and the creditors of the bankrupt (seller). The Master held that the assignment of the conditional sale agreement "was to act as a mortgage for the payment of the notes;" and that, as neither the conditional sale agreement nor the assignment had "been recorded in accordance with the laws of the State of New Jersey and ... the B. & B. Motor Sales Corporation had repossessed the truck and had it in its possession at the time of the appointment of the receiver," the receiver, and not the First People's Trust, was entitled to it. First, as to the conditional sale agreement. The New Jersey Uniform Conditional Sales Act, approved April 15, 1919, effective from July 4, 1919 (N. J. P. L., p. 461), in section 1, defines a seller as "the person who sells or leases the goods covered by the conditional sale, or any legal successor in interest of such person." In section 4 it declares that: "Every provision in a conditional sale reserving property in the seller after possession of the goods is delivered to the buyer, shall be valid as to all persons, except as hereinafter otherwise provided." The exceptions here referred to are contained in section 5, which declares that: "Every provision in a conditional sale reserving property in the seller shall be void as to any purchaser from or creditor of the buyer, who, without notice of such provision, purchases the goods or acquires by attachment or levy a lien upon them, before the contract or a copy thereof shall be filed as hereinafter provided, unless such contract or copy is so filed within ten days after the making of the conditional sale." From this recital it will be seen that as no purchaser from or creditor of Jones is questioning the validity of such reservation, as between the bankrupt and Jones, the reservation to the bankrupt of title and property in the truck, was valid, notwithstanding the failure to record the agreement. Second, as to the assignment of the conditional sale agreement: The New Jersey Chattel Mortgage Act (Revision of 1892; 1 Comp. Stat. N. J., p. 463) in section 4, declares: "Every mortgage or conveyance intended to operate as a mortgage of goods and chattels hereafter made, which shall not be accompanied by an immediate delivery, and followed by an actual and continued change of possession of things mortgaged, shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage, having annexed thereto an affidavit or affirmation made and subscribed by the holder of said mortgage, his agent, or attorney, stating the consideration of said mortgage and as nearly as possible the amount due and to grow due thereon, be recorded as directed in the succeeding section of this Act." To constitute a mortgage the right of redemption must exist, and where such right is established the form of the conveyance is not controlling. Wilmerding, Heguet & Co. v. Mitchell, 42 N. J. L. (12 Vr.) 476; Hastings v. Fithian (E. & A.), 71 N. J. L. (42 Vr.) 311. An assignment of a chose in action, even if it be a security for the payment of a debt, is not a chattel mortgage within the meaning of the New Jersey Chattel Mortgage Act. Bleakley v. Nelson, 56 N. J. E. (11 Dick. Ch.) 674. This Act applies only "when the goods mortgaged are capable of such open and visible possession that their holding by a mortgagor, who had given a secret mortgage, might tempt someone to deal with him as the absolute owner." Cumberland National Bank v. Baker, 57 N. J. E. (12 Dick. Ch.) 231, 242. The assignment now under consideration was not given as a security. It was an absolute transfer of the seller's property and interest in the conditional sale agreement and the automobile mentioned therein, without right of redemption. By this assignment The People's Trust became the "legal successor in interest" referred to in section one of the Uniform Conditional Sales Act, supra; and the reservation of property contained in the conditional sale agreement was transferred to it by the assignment. The assigned agreement recited that the automobile had been delivered to the buyer, and the assignment expressly recited that it had been sold to Jones (the buyer); and the assignor at the time of the assignment was not in a position to retain the automobile, or to deliver it to the assignee. What the assignor could deliver to The People's Trust was the conditional sale agreement, and that was done. Had the transfer been to secure a debt, the delivery of the conditional sale agreement would savor more of a pledge than a chattel mortgage, but, as the assignment was absolute and not conditional, it was neither. Such a transaction is not contemplated by the Chattel Mortgage Act, which covers transactions where the title, but not possession, is transferred; but by the Uniform Conditional Sales Act, supra, which operates upon transactions where the possession, but not the title, is transferred. The right of The People's Trust to the automobile is fixed by the assigned conditional sale agreement, and is superior to the rights of the bankrupt or its creditors--here represented by the receiver. As opposed to this view, and in support of the Master's finding, the case of David Straus Co. v. Commercial Delivery Co. (N. J. Ct. Ch.), 113 Atl. 604, affirmed by the Court of Errors and Appeals, 112 Atl. 417, is cited by the receiver. That case, made up of facts which existed before the Uniform Conditional Sales Act went into effect, presents many features similar to the instant case. However, the differences, and not the similarities, are controlling. The pertinent facts were: Coincident with the agreement (called a lease) relating to the delivery and use of the automobile truck, the lessee (driver) entered into a service contract with the lessor (Commercial Delivery Company). In that contract the driver agreed to work the truck under the direction of the lessor for two years, and in no other way than as directed by it, and to deliver to the lessor the entire gross monthly earnings. The contract also provided that out of these moneys the latter was to retain a certain percentage for its services, pay the wages of the drivers, storage charges, repairs, etc., and credit the balance to the driver; and that the truck should at all times be stored in a garage furnished by the lessor. The lessor assigned to the Morris Plan Company all its right, title and interest in the lease and the property therein described, and agreed, "in the event of any resale, release, or repossession of said property," to pay to the assignee any deficiency between the net proceeds of such resale and the amount necessary to pay the unpaid installments. At the time of this assignment the assignee took a note made jointly by the assignor and the driver for the sum advanced by the assignee as consideration for the assignment. Subsequently an equity receiver in insolvency proceedings was appointed for the lessor, and the receiver found it in possession of the truck. The Morris Plan Company petitioned that the truck be delivered to it as the legal owner thereof. The Vice-Chancellor held that the assignor was a debtor of the assignee; that the assignment was not an absolute sale of the truck, but collateral security for the payment of the debt; that while the lease apparently gave the right of possession to the driver (lessee), the actual possession, by reason of the service contract, was always in the lessor; that the assignment of the lease was in legal effect a chattel mortgage; and that not having been recorded it was void as against the receiver and creditors of the assignor. As already stated this finding was affirmed by the Court of Errors and Appeals. In the cited case, as noted, it was held that the possession, as well as the title, of the truck was in the lessor at the time of the assignment of the lease or sale agreement; and that the assignment was not an absolute sale of the agreement, but a security for the payment of the advances made by the assignee for which payment the assignor was jointly liable with the driver. In the instant case, the actual, as well as the right of possession of the truck, was not in the bankrupt, but in a third person--the buyer--and the assignment was an absolute transfer of the bankrupt's property in the conditional sale agreement, without right of redemption. These differences are essential, and distinguish the cases. The fact that the truck was taken from the buyer by the bankrupt subsequent to the latter's assignment of the conditional sale agreement, gave it not property or right in the truck as against its assignee, The First People's Trust. Whatever rights such possession gave it as against the buyer, they were subordinate to the assignee's right of possession on the buyer's default in the terms of the conditional sale agreement then held by the assignee. Such default having taken place, the assignee is entitled to the possession of the truck. The Master's findings are disapproved, and an order will be made giving The First People's Trust the possession of the truck in question. OSBORNE & MARSELLIS CO. v. ESSEX CO. (Essex Co. Circuit Court, Feb. 3, 1922). _Compensation for Road Labor Performed Under County Contract--Ultra Vires Resolution_. Case of The Osborne & Marsellis Company against County of Essex. Messrs. Edwin B. and Philip Goodell for Plaintiff. Mr. Arthur T. Vanderbilt for Defendant. DUNGAN, J.: This is a suit brought by Osborne & Marsellis Company against the County of Essex to recover compensation for labor performed and materials furnished in the improvement of a part of Franklin avenue, a county road in the county of Essex, prior to the allowance of a writ of certiorari to review the legality of the contract under which the work was done, which contract was set aside by the Supreme Court, and the decision of that Court was affirmed by the Court of Errors and Appeals. Chamber of Commerce v. County of Essex, 114 Atl. 426. The case is submitted upon a statement of the case and stipulation of facts for judgment, without pleadings; the parties agreeing that the issues be submitted to this Court for decision, without trial by jury, and that "No appeal will be taken from the judgment entered on his findings." From the agreed statement of fact it appears that there was no irregularity on the part of Osborne & Marsellis in the bid, in the awarding of the contract, or in the execution of the contract, which was approved as to form by the county counsel, and a bond was furnished which was also approved, both in accordance with the resolution of the Board awarding the contract. It also appears that, after the adoption of the resolution awarding the contract, the plaintiff commenced the work and performed work and furnished materials, the value of which, at the unit prices fixed by the contract, amounted to $18,562.80, all of which labor and materials were performed and furnished prior to the allowance of the writ and prior to notice that application would be made for the writ, "except such work as was necessary to leave the unfinished road in condition as required by law." The grounds upon which the contract was set aside appear fully in the case of Chamber of Commerce v. County of Essex, 114 Atl. 426. Two defenses to the plaintiff's claim are urged: First, that the contract was not signed by the director of the Board of Freeholders; and, second, that the resolution constituted an ultra vires act of the Board of Freeholders and that there can be no recovery upon quantum meruit where the act is ultra vires. 1. The resolution of the Board of Freeholders relating to the awarding of the contract, which included other contracts, is as follows: "Resolved that the contracts ... be and the same are _hereby awarded_;" and that "the director and clerk be and they are hereby authorized and directed to execute contracts with said companies pursuant to this resolution," the only conditions being that a proper bond be furnished and that the contract and bond be approved by the county counsel, and both contract and bond were so approved. The contract, therefore, was awarded by the resolution itself, and the formal document, approved by the county counsel, was actually signed by the clerk and the seal of the county affixed thereto by him, and the failure of the director to sign was a failure to perform a purely ministerial act, the performance of which could have been required by proper legal proceedings. Therefore, I hold that the plaintiff is not prevented from recovering on account of the failure of the director to sign the contract. 2. The subject of the contract is one which was entirely within the powers of the Board, and hence it cannot be said that the action of the Board in awarding the contract to the plaintiff was ultra vires in that respect. After the adoption of the resolution awarding the contract, and after the approval of the plaintiff's bond and the form of the contract by the county counsel, and the affixing thereto of the signature of the clerk and the seal of the county, the plaintiff commenced the work contemplated by the contract. Grade stakes were furnished by the County Engineer's department, and the work which was performed was under the supervision and direction of an inspector furnished by that department, and the portion of the road upon which the work was done was completed and left ready for use and is now actually in use by the public. This situation, it seems to me, brings this case within the decision of the Supreme Court in Wentink v. Freeholders of Passaic, 37 Vroom, p. 65, in which it appeared that a contract to do the mason work of a bridge was let to Wentink, which contract the Court subsequently declared void because the firm to whom a contract for the same work had been originally awarded, but which had failed to furnish a bond, had no notice that their bid had been rejected. Wentink expended $600 in attempting to secure materials and in the execution of the contract. The Court held, that even though the county had derived no benefit from such expenditure, Wentink might recover the amount expended. The Court said: "There was no lack of power to make the contract with the plaintiff. The fatal defect was in an irregular exercise of such power. It would be too much to hold every contractor for a public body to a scrutiny at his peril of the corporate proceedings. All that he need look to is the power to make the ostensible contract." On the question of damages the Court said: "In the case in hand the performance of the contract was not prevented by the fault of the defendant, but by _vis major_. The making of the contract was, however, induced by such fault, and on its annulment the defendant should answer, as on a quantum meruit for the work done thereunder," and that, "As to the measure of the quantum meruit for the work done the contract rate should govern." It is admitted that at the contract rate the work which was performed by the plaintiff would have amounted to $18,562.80. Since this case is submitted for judgment without pleadings, and since the statement of the case and the stipulation of facts make no provision for interest, the judgment of the Court will be in favor of the plaintiff and against the defendant for that sum. IN RE ELIZABETH AVENUE ASSESSMENT. (Union Co. Common Pleas, Jan., 1922). _Assessment for Repairing Street--Method Employed--Method Suggested_. In re appeal from assessment for repairing Elizabeth Avenue from Front street to Seventh street, Elizabeth. Mr. Alfred S. Brown, Appellant, in person. Mr. Joseph T. Hague, for City of Elizabeth. PIERCE, J.: This is an appeal from an assessment for repaving with granite blocks that portion of Elizabeth avenue, Elizabeth, extending from a point about 150 feet east of Front street to Seventh street. The error complained of is inequality as compared with other assessments. Appellant is the owner of a triangular lot of land lying between Elizabeth and First avenues, at their intersection at Liberty Square; the lot is bounded northerly 350 feet on Elizabeth avenue, easterly 31 feet on Liberty Square, southerly about 350 feet on First avenue, and westerly 133 feet on abutting property; the lot is vacant except for an old house at the southwest corner fronting on First avenue. The general method of assessment adopted by the Commissioners was as follows: From the whole cost of the improvement, $220,330.56, was deducted $23,127.29, paid by the Public Service Company for repaving its trolley tracks, leaving $197,203.27, of which one-half was assumed by the City and the other half assessed upon abutting property, being at the rate of $8.82 per linear front foot. The Commissioners adopted this linear front-foot rate as the bases of the assessment, and imposed it upon all lots one hundred feet deep; short lots were given concessions assumed by the City, viz., 12-1/2 per cent. off where the lot was 50 feet deep, 18-3/4 per cent. off where the lot was 25 feet deep, and in that proportion. The Commissioners determined that as to all the lots the assessment was less than the value of the lot, and less than the benefit conferred, but gave no consideration as to the relative value of the lots as between themselves. In assessing appellant's triangular lot the following method was adopted: The lot was divided lengthwise by an imaginary line into two equal parts, one fronting on First avenue and the other on Elizabeth avenue. The part on First avenue was not assessed. The part on Elizabeth avenue was assessed at the regular rate of $8.82 for its 350 feet frontage, a total $3,087.00, less three concessions: a concession of 12-1/2 per cent. ($110.25) was allowed on the westerly 100 feet averaging fifty odd feet deep; a concession of 20 per cent. ($441.00) was allowed on the remaining 250 feet averaging thirty odd feet deep; and a concession of 25 per cent. ($68.35) was allowed for the 31 feet fronting on Liberty Square. Total concessions, $619.61, leaving $2,467.40 as the assessment levied. In addition to the concessions the Commissioners made no assessment against the lot for its frontage on Liberty Square. The result reached by the Commissioners was to assess a lot 350 feet in front on Elizabeth avenue, 15-1/2 feet deep at one end and 66-1/2 at the other, nearly four-fifths as much as though the entire frontage had been full lots 100 feet deep. This is unreasonable and I think more than appellant's entire lot should be assessed. I think the Commissioners erred in two respects in their method of assessment: 1. It was improper to divide appellant's lot lengthwise for the purpose of assessment. The lot was already too shallow for the greater part of its frontage for ordinary building purposes, and to divide it further was to leave two narrow strips, one fronting on Elizabeth avenue and the other on First avenue, neither of any sale value, or practical value for any purpose. It was held by the Court of Errors and Appeals in Aldridge v. Essex Road Board (51 N. J. L. 166) that assessors may not divide a lot for the purpose of assessment so that, should a sale result to collect the tax, the property would not bring as much as if sold as part of the original parcel. The rule was followed in Coward v. North Plainfield (63 N. J. L. 61), where, as in the case at bar, an imaginary line was drawn midway between two avenues. 2. I think the Commissioners erred also in disregarding the relative benefit received by lots along the line of the improvement resulting from location and value of the property. The assessment was strictly a front-foot assessment with concessions for short lots, but disregarding the element of location and relative value. The 4th Ward assessment roll received in evidence shows substantial variations in the value of properties on Elizabeth avenue, and inspection of the line of improvement about a mile in length shows greater traffic and better building and values toward Seventh street than opposite and below appellant's lot. The intersection of Elizabeth avenue and High street, a few feet West of Seventh street, is a business center for that part of the City, and values and traffic are materially greater in that vicinity than below Third street. It is manifest that business houses dependent upon traffic for their business are more benefited by a paving improvement than vacant lots at a distance where there is less traffic. It is well settled in New York that the relative value of lots and the buildings upon them must be considered in determining the benefits accruing from a paving improvement (Donavan v. Oswego, 39 Misc. 291, and cases therein cited); and in State v. Rahway (39 N. J. L. 646; affirmed by the Court of Errors and Appeals in 11 Vr. 615) a greater assessment upon lots nearer a business center was approved in a grading, curbing and guttering improvement. The statute provides that "all assessments ... levied for any local improvement shall in each case be as near as may be in proportion to the peculiar benefit, advantage or increase in value which the respective lots and parcels of land and real estate shall be deemed to receive by reason of the improvement." Under the circumstances existing in the case at bar, there being, as I find, a difference in benefit along the line of the improvement resulting from location and value, these elements should have been considered by the Commission and such weight given them as in the judgment of the Commissioners they should receive. In reassessing appellant's lot I suggest a different ratio of concessions for short lots. The concessions adopted by the Commissioners are one-half the concessions allowed by the Newark, or Hoffman rule, in valuing short lots in regular assessments. As evidenced by the result reached in the assessment appealed from, the concessions are inadequate, and I see no reason why the full concessions established by the Newark rule should not be adopted. It is not easy to formulate a rule that will do justice in all cases in assessing irregular shaped lots, but I think a fair result would be reached in the case at bar by deducting from the frontage assessment of $3,087.00 a concession of 25% ($771.00) for the frontage and probable future paving assessment on First avenue; a further concession at the rates given by the Newark Rule for that portion of the lot under 100 feet in depth (20%--$441.00), less the added value under the same rule for that portion over 100 feet in length (7%--$61.74) net $379.26; total net $1,936.74; less such further concession for less than average benefit received by appellant's lot as in the judgment of the Commissioners should be allowed by reason of inferior location, value and improvements. As appellant's lot is not assessed for paving Liberty Square, no concession should be made for frontage on Liberty Square. For the reasons given, the assessment appealed from should be set aside as to appellant's lot. * * * * * Inexcusable delay in presenting a check for payment is held to discharge an indorser from liability thereon if the check is not paid, whether he is in fact injured or not, in the West Virginia case of Nuzum v. Sheppard, 104 S. E. 587, annotated in 11 A.L.R. 1024. STATE v. GRUICH. (Essex Quarter Sessions, Dec. 27, 1921). _Criminal Abortion--New Trial--Postponing Sentence Days_. Case of The State against Anne Gruich. On application for new trial. Mr. Frank Bradner for Petitioner. Mr. John A. Bernhard, Assistant Prosecutor of the Pleas, for State of New Jersey. STICKEL, Jr., J.: Anna Gruich was tried before this Court, Judge Harry V. Osborne presiding, and, on February 21, 1919, convicted of abortion. The minutes of the Court at the foot of the entry of the verdict of the jury contain the words, "Sentence postponed." On the 23rd day of May, 1919, the said defendant was convicted by a jury on a second charge of abortion and, on June 5, 1919, sentence of both convictions was imposed by Judge Osborne, the sentences running concurrently. The conviction on the second charge of abortion having been reversed by the Court of Errors and Appeals at a recent term of that Court and a new trial ordered, application is now made to this Court to grant a new trial on the charge of abortion of which the defendant was convicted on February 21st, 1919. [Here two broad grounds are urged as warranting such action, the first ground involving a question of fact; that part of the opinion is not published. The second ground is that the Court, having postponed sentence thereafter to in a new term of the Court and without having noted in the minutes continuances of the day of sentence, imposed sentence upon the defendant, the contention being the Court then had no jurisdiction to impose any sentence. The opinion continues.--EDITOR]. And I am equally clear that there is no merit in her contention that the Court had no jurisdiction to sentence in the April Term upon a conviction had in the December Term. The theory of the defendant seems to be that, because the minutes do not show that the time for sentence was fixed and then postponed from time to time until the sentence was actually imposed, therefore, no sentence day was, in fact, fixed, no continuance had, and, when the December Term expired, the power of the Court to fix a sentence day or impose a sentence ended. The sentence file of this Court will show that the assumption of counsel is unwarranted, and that a day for sentence was fixed and regular adjournments of that sentence had from time to time until the day upon which sentence was imposed. But, even though we assume that no sentence day was fixed and no continuance in fact taken, the position of counsel in my judgment is unsound. This case is controlled by the principles laid down in the opinion in Gehrmann v. Osborn, 79 N. J. Eq. 430; 82 Atl. Rep. 424, and by the decision in that case, and even though, as counsel for the defendant suggests, I may not be bound by the decision in that case, the reasoning, the logic and learning thereof is such that I am wholly content to be governed thereby in determining this case, and convinced that the decision in that case represents the law of this State. There, as in this case, sentence was postponed, and, although more than two years elapsed before the defendant was actually sentenced, and, although the original postponement was the practical equivalent of an indefinite postponement of sentence, the Court upheld a sentence to State Prison. Here the sentence was imposed but a few months after conviction, and the postponement was not the equivalent of an indefinite postponement. And, like in the present case, there were no continuances of the sentence recorded in the minutes. "The conclusion which I have, therefore, reached," says Vice-Chancellor Garrison, "in the Gehrmann case, is that in the State of New Jersey, if a defendant has pleaded nolle contendere, or guilty, or has been convicted upon trial, the Court has the power, if the defendant does not object thereto, and therefore is assumed to assent thereto, to refrain from pronouncing a judgment or sentence, and may, at a subsequent time, hale the defendant before it, and impose the punishment in the same manner that it would have been justified in pronouncing upon the very day when the case was ripe for sentence." It will be observed from the opinion that the duty rests upon the defendant to object to an indefinite postponement of sentence; that his failure so to do creates a presumption that he assented thereto, and that his assent or acquiescence to such postponement disenables him to complain when thereafter the Court imposes sentence, whether within or without the term in which the conviction is had or plea taken. Here not only is there no proof of an objection, but on page 23 of the testimony it appears that the defendant at least acquiesced in the postponement from time to time of the sentence. Moreover, just as the research of the learned Vice-Chancellor convinced him that an indefinite suspension of sentence has been the custom in our State beyond the memory of those then connected with the administration or practice of criminal law in this State, so, from my own experience as a practitioner in and Judge of this Court do I know that for years it has been the practice to sentence on a given Monday after conviction; to sentence periodically all persons convicted or who have pleaded; to enter in the minutes "Sentence postponed" in bail cases and prisoners "Remanded for sentence" in jail cases and to advise defendant for counsel, or both, in open Court of the regular sentence day; for the clerk to make up a sentence list for said day; for the Court to use such list in sentencing; for the Court to postpone to another day sentences set down upon such sentence day when it so determined, the clerk noting the postponement and placing the case on the new sentence list of the Judge, and for the clerk to take the various sentence lists and file them as a part of the records of this Court. This practice I find was followed in this case and probably accounts for the repeated attendance of the defendant at the courthouse for sentence. The defendant was convicted on February 21st and the first sentence day of Judge Osborne thereafter was February 24th, 1919. The defendant's name appears upon this list for sentence and a notation is made that the sentence was postponed to March 10th; the sentence list of March 10th shows a postponement to March 24th; that of March 24th a postponement to April 14th; that of April 14th a postponement to May 5th; that of May 5th a postponement to May 26th; that of May 26th to June 5th, and on June 5th sentence was imposed. If there is any question about this and the case is to be appealed, I would suggest that the Prosecutor submit as part of the record on this rule evidence of the practice of this Court in sentencing, together with the sentence lists of Judge Osborne covering the period in question. The rule obtained in this case is discharged and the application of the defendant for a new trial denied. IN RE WILL OF MARION. (Essex Co. Orphans' Court, Jan. 12, 1922). _Probate of Will--Signing Will "for Sake of Peace"--Burden of Undue Influence--Facts Considered_. In the matter of the probate of a certain paper writing purporting to be the last will and testament of Elizabeth Marion, deceased. On caveat. Mr. Edwin B. Goodell and Mr. Philip Goodell for Proponent. Mr. Paul M. Fischer for Caveator. STICKEL, Jr., J: I was satisfied at the conclusion of the hearings in this matter that the paper writing purporting to be the will of the decedent had been properly executed, and I was also satisfied that she was capable of making a will; in other words, that she had testamentary capacity; but I had some doubt whether the decedent had not consented to the making of the document in question and signed the same for the sake of peace. Being thus in doubt I asked counsel to submit briefs on that point alone, and counsel for the proponent have submitted a brief. Counsel for the caveator has not submitted a brief, and, as I understand it, does not intend to submit one. The decedent was a woman between fifty and sixty years old. She had several children, two or three sons and two daughters, as I recall it, and one of the daughters, Mrs. Appleton, resided, together with her three children, with the decedent, and had done so for sometime prior to the execution of the document in question. The decedent and her husband had lived apart for some years, and the whereabouts of the husband of Mrs. Appleton were unknown, so that both the decedent and the daughter daily went out to work. The decedent had never made a will. She was not on unfriendly relations with her children, although there is some suggestion that she disagreed with all of them at different times. So far as the testimony shows, she had not indicated definitely to anyone at any time prior to the making of the document in question what she intended to do with her estate. She executed the papers purporting to be her will between five and six o'clock, P. M., on the 21st day of December, 1920. She died about one A. M., the succeeding day. She received the last rites at eleven o'clock in the morning of the day she made the will. At three o'clock in the afternoon, two or three hours before she made her will, she inquired of her daughter where certain insurance papers were, and, being told that they were in possession of the daughter and that the insurance had been paid, she seemed relieved and said she did not want any trouble over her affairs. The daughter then asked her whether she had a will and received a reply in the negative. The daughter, Mrs. Appleton, followed this with an inquiry whether the decedent wanted to have things fixed up, and the decedent did not answer her. The daughter, nevertheless, thinking, as she said, that the employer and friend of her mother, Mrs. Hill, had a will, called up Mrs. Hill and, apparently, either told Mrs. Hill that the decedent wanted a lawyer to make a will, or that she had no will and was dying, for, in any event, Mrs. Hill, shortly after the telephone call, came to the decedent's house with Mr. Edwin B. Goodell, a lawyer of Montclair, to prepare a will for the decedent. The decedent was not asked whether she wanted to make a will prior to this time, and did not in anyway, so far as the testimony shows, request the attendance of Mr. Goodell or anyone else to make a will. When Mr. Goodell acquainted the decedent with the reason for his attendance, she said she did not want to make a will "tonight," or words to that effect; indicating, as Mr. Goodell put it, that she would prefer not to make a will that night. At that time there were in the room with the decedent, who was in bed, very sick, a Mrs. Fischer, Mrs. Wickham, who was holding her up or propping her up in bed, Mrs. Appleton, the daughter, Mrs. Hill and Mr. Goodell. In an adjoining room was a son of the decedent with his child or children. Someone of the persons in the room--the testimony does not agree as to who it was, and it may be that it was more than one--urged and encouraged the decedent to make a will after her remark that she did not want to make one that night. Mr. Goodell says he did not, although he felt that the decedent wanted to make a will, and that if she did not make it that night she would never make it, because he thought she would die before morning. In any event, a short time after she said that she did not want to make a will that night, Mr. Goodell inquired of her what she wanted to do with her property, and someone in the room, he thinks it was Mrs. Wickham--but Mrs. Wickham says it was not, although all seem to agree that it was not Mrs. Appleton--suggested that she wanted to leave her house, the one in which she was then living with her daughter and grandchildren, to the three grandchildren. The decedent assented to this. But Mr. Goodell took the precaution to ask her directly whether she wanted her house to go that way and reminded her it would tie up the sale of the property, because the children were minors. The decedent, in replying to this, said that was what she wanted to do; she wanted it so that it could not be "spent." Mrs. Hill and Mr. Goodell agree as to this testimony, and Mrs. Wickham, the only other person in the room, who was interrogated on this point, said that she had no recollection one way or the other. Then Mr. Goodell inquired of the decedent what she wanted to do with the residue of her estate, and again someone volunteered that she wanted it to go equally among her children. Whereupon Mr. Goodell, having interrogated the decedent, she replied that she wanted the residue to go in that way. Mr. Goodell's recollection is that the decedent nominated the executor, herself, although he said it is possible that someone else in the room suggested it and that the decedent assented thereto. Thereupon, the will having been read, paragraph by paragraph, the decedent and the witnesses duly executed it. The burden of proving undue influence, of course, rests upon the person or persons charging undue influence, and, as was said in the case of Schuchhart v. Schuchhart, in the fourth syllabi, 62 Eq. 710, 49 Atl. 485: "When undue influence is claimed to be established by inference from certain facts proved, and, upon all the facts proved, an equally justifiable inference may be drawn that the will executed was what testator would have made under the circumstances, the burden on contestants is not supported." See also In re Richter's Will, 89 N. J. Eq. 162. The inference which the contestants would have the Court draw from the facts is that the decedent intended to die intestate, so that her property would go to her children equally, and that her objection to making a will that night indicated her desire to die intestate, for she knew that her end was near and believed that if the making of the will were put off until the next day she would be dead and dead intestate. This is an inference which may be drawn from the facts, but an equally justifiable inference is that the decedent had the all-too-common disinclination to draw a will; that she sought to shirk the responsibility of deciding what disposition to make of her property, to avoid making and executing a will; that when brought face to face with her responsibility she yielded to the advice and suggestions of her friends, and, although originally preferring not to make the will, determined to discharge her responsibility and make the will. In no other way can the statement of the decedent that she wanted to tie up the house, so the children could not spend it, be reconciled. That remark indicated that the decedent had aroused herself to the task of making her will, had overcome her disinclination, determined to perform the duty of making a will and had considered the question of the disposition of her property. It is true that others made the suggestion as to what the decedent wanted to do with the property, and I am inclined to think that everyone in the room knew from talking with the decedent that she wanted to leave her property as she actually did leave it, although there is no direct testimony on this point, but the remark about preventing the children from spending the property was the product of the decedent's own mind; she initiated the remark, and thereby revealed her state of mind, both as to the matter of making a will at all and as to how she wanted her property to go. And it is not strange that she wanted the property to go in this way, for she knew it was her grandchildren's home (and we all know the wonderful love that grandparents have for grandchildren); she knew that they could not depend upon a father for support and upbringing and that their mother was the breadearner. Her own children were grown up, married, most of them, and so far as the record shows not to need of assistance. That the devise of the house to the grandchildren is a natural, normal one, is emphasized by her disposition of the residue of her estate, for, having taken care of her grandchildren, assured them of a home during their minority at least, she proceeded to give to her children everything else that she had; and I am inclined to think she believed that the residue of the estate would be much larger than it actually is; that the return she would get from the estate of Timothy Arnold would be larger than it actually was. It is undoubtedly true that, except for the presence of the lawyer, which was brought about by Mrs. Hill and Mrs. Appleton, and except for the advice and encouragement to make a will and at once by those in the room to the decedent, she would have died without a will. But, instead of the presence of the lawyer and the said advice and encouragement dominating the deceased and destroying her free agency, it seems only to have served to arouse in her the necessity for making a will, if she would protect her grandchildren, to re-awaken and revive her apparently dormant and pre-existing desire to provide a home for her grandchildren, to do this and to give her the opportunity to carry out such desire or intention, which opportunity she seized and made the best of, for how else can her response to Mr. Goodell, that she wanted to tie up the house so that it could not be "spent," "That is what I want to do," be accounted for? Certainly acts which produce such a result cannot be said to be acts of undue influence. Stewart v. Jordon, 50 N. J. Eq. 733-741. And it is well settled that it is not the exercise of undue influence to advise, encourage, or urge the making of a will. In re Barber's Will, 49 Atl. 826; In the matter of Seagrist, 1 N. Y. App. Div. 615; 37 N. Y. Supp. 496; Aff. 153 N. Y. 682; 43 N. E. 1107. Mr. Goodell, who drew the will, is a reputable and careful lawyer, and I feel sure that he would not have prepared this will or permitted the decedent to execute it except he felt it represented her real wishes. Nor do I think he would have permitted her to have executed this document if he for one moment conceived that she was making it for the sake of peace or to be rid of her visitors. That fact must also be considered in determining the question in hand. It seems to me, therefore, that the more probable inference to be drawn from the facts in this case is one which requires the upholding of the document as the will of the decedent and that the contestants have not sustained the burden of proving undue influence. The paper writing purporting to be the will of Elizabeth Marion is consequently admitted to probate. WOMEN JURORS. Does the right of suffrage entitle women to serve as jurors? This question has been answered in the affirmative in Michigan, where it was held, in People v. Barltz, 180 N. W. 423, 12 A.L.R. 520, that a constitutional declaration that every inhabitant of the State, being a citizen, shall be an elector and entitled to vote, makes women electors within the meaning of a statute requiring jurors to be drawn from the electors, and they are therefore entitled to perform jury duty. This decision seems to stand alone. A contrary conclusion was reached in Re Grilli, 110 Misc. 45, 179 N. Y. Supp. 795, affirmed on opinion below in 192 App. Div. 885, 181 N. Y. Supp. 938, which involved the right of an enfranchised woman to compel the board of assessors and the commissioner of jurors to complete the county jury lists by including therein the qualified women voters of the county. The Court said: "The only claim made by the petitioner in connection with her application is that jury service is incidental to and a part of suffrage, and since, by the recent amendment of the State Constitution, women are qualified to vote, they must be made jurors. The fallacy of this contention is found in an examination of the history of the jury system since the adoption of the first Constitution in the State of New York. While citizenship has always been a qualification of jury service, every voter has not been included within the jury lists. The various laws with reference to jurors show that men who were entitled to vote have been excluded from jury service." In Illinois, the fact that women are legal voters for the election of statutory officers, and certain other purposes, is held not to make them eligible for jury service in criminal cases, in People v. Krause, 196 Ill. App. 140, and People v. Goehringer, 196 Ill. App. 475. In Virginia, according to 6 Va. L. Reg. N. S. 780, Judge Gardner, in instructing jury commissioners, distinguished between the right to vote and the duty to render jury service, by stating that the former is a constitutional right conferred, while the latter is a legislative duty imposed. He concluded that women cannot lawfully serve as jurors under the Virginia statute, which limits that duty to "male citizens over twenty-one years of age," until the legislature so modifies the statute as to make it applicable to "all male and female citizens twenty-one years old." The Court, in the Wyoming case of McKinney v. State, 3 Wyo. 719, 30 Pac. 293, 16 L.R.A. 710, seems to have been of the opinion that a constitutional provision that "the rights of citizens of the state of Wyoming to vote and to hold office shall not be abridged or denied on account of sex," and that "both male and female citizens of this State shall equally enjoy all civil, political, and religious rights and privileges," did not require that women voters be allowed to serve as jurors. The Supreme Judicial Court of Massachusetts, in Re Opinion of Justices, 130 N. E. 685, answered questions submitted by the House of Representatives by holding that, under the Constitution of the United States and the Constitution and laws of Massachusetts, women are not liable to jury duty. The State statute subjects to jury service persons "qualified to vote for representatives to the General Court." These words, while broad enough to include women, are held not to do so, when interpreted in connection with the history of the times and the entire system of which the statute forms a part. It was determined, however, that the General Court had constitutional power to enact legislation making women liable to jury duty.--_Case and Comment_. MISCELLANY NEW CHANCERY RULE. The Chancery Rules have been supplemented by the addition of a new rule numbered 165a, promulgated January 6, 1922, as follows: 165a. All pleadings, proofs and other papers presented to, and all orders and decrees signed by the Chancellor or a Vice-Chancellor or Advisory Master at the State House in Trenton, shall be forthwith filed with the clerk; and all such which shall be so presented and signed at chambers or elsewhere shall be marked filed by the Chancellor or Vice-Chancellor or Advisory Master (which need only be over the initials of his name and office, and may be done by his official stenographer or sergeant-at-arms at his direction), and all such papers shall be retained by the Chancellor or Vice-Chancellor or Advisory Master and delivered or forwarded by him, or at his direction, to the clerk with all convenient speed. SUPPLEMENTARY PROCEEDINGS. Attention has been called to the Bar of Bergen county by Mr. Justice Parker to a laxity of practice in relation to supplementary proceedings in cases of judgment and execution, and, as the matter should interest the Bar of the State generally we give, herewith, what has been spread before the Bergen attorneys: "1. Originally an attorney or agent could not make the affidavit. Westfall v. Dunning, 50 N. J. L. 459. This was changed by statute. P. L. 1890, p. 185. But it should appear as one of the direct statements in the affidavit that the attorney is the attorney, i. e., "J. S., being duly sworn, says that he is the attorney herein for A. B. the plaintiff," and not merely, "J. S., attorney for the plaintiff, being duly sworn," which is a mere appositive and not a definite statement. "2. Such affidavits frequently say: "that he has read the foregoing petition, and that the statements thereof so far as they relate to his own acts are true, and so far as they relate to the acts of others he believes them to be true." This, it would seem, is not a compliance with Section 24 of the Executions Act. Such an affidavit in Chancery was considered in Barr v. Voorhees, 55 Eq. 561, and held sufficient for an order for discovery, but not for an injunctive order. But it is to be noted that this was under Section 90 of the Chancery Act of 1875 (Rev. 121; G. S. 1895, p. 389) which reads "that he believes the contents thereof are true," whereas, Section 24 of the Executions Act requires the creditor or his agent to verify the petition, in which he shall state the amount due on the execution, the return by the officer, _and his belief_ that the creditor has assets, etc. The belief is, therefore, restricted to the debtor's assets and does not apply to the recovery of the judgment or the issue or return of execution. As to these facts, the late Chief Justice Depue said he doubted the sufficiency (at law) of such an allegation. 10 N. J. L. J. 223-4; Frankel v. Miner, 10 N. J. L. J. 341. "There is no difficulty about an attorney deposing from personal knowledge that a judgment was entered, and execution issued and returned, as these things are matters of record; and as Chief Justice Beasley said in Westfall v. Dunning, 50 N. J. L. 461 already cited: "It is obvious that such a statement could be safely made by anyone who was possessed of the loosest information," etc. He was there speaking of verifying the belief of the _creditor_; under the present act the belief of the attorney may do as well, but the criticism seems applicable to the other allegations also. "The printed forms in Jeffery and on some of the law blanks are open to criticism in the above respects, and debtors should not be hauled before Commissioners for examination unless the statute is complied with." ACCIDENT TO MRS. EMERY. Mrs. John R. Emery, widow of the late Vice-Chancellor Emery, while traveling with friends in Algiers, met with an automobile accident about Feb. 12th. The automobile turned over on the edge of a mine shaft, and it is stated she sustained a fracture of both arms. She went abroad Oct. 8th. DEATH OF NEWARK'S MAYOR. Mayor Alexander Archibald, of Newark, died on Feb. 11th, after an operation for a pressure on the brain nerves. He is said to have been the first Mayor of Newark to die while in office. He was born in Edinburgh, Scotland, December 13, 1869; was three years of age when his parents came to America. He was a silverware manufacturer in Newark. He was elected to the Council of Newark in 1910; became City Clerk in 1914, and in 1917 was elected City Commissioner and became Mayor. He was a Democrat and was talked of as a candidate for Governor. His funeral was large and observed generally throughout the city. HUMOR OF THE LAW. A Memphis lawyer entered his condemned client's cell: "Well," he said, "good news at last!" "A reprieve?" exclaimed the prisoner eagerly. "No, but your uncle has died leaving you $5,000 and you can go to your fate with the satisfying feeling that the noble efforts of your lawyer in your behalf will not go unrewarded." GOVERNOR'S APPOINTMENTS. Adam O. Robbins, of Flemington, Common Pleas Judge of Hunterdon county in place of George K. Large. Henry E. Newman, of Lakewood, Common Pleas Judge of Ocean county in place of William H. Jeffrey. Marshall Miller, of Bloomsbury, Prosecutor of the Pleas for Hunterdon county in place of Harry J. Able. Wilfred H. Jayne, Jr., Prosecutor of the Pleas for Ocean county in place of Richard C. Plumer. Mahlon Margerum, member of the State Board of Taxes and Assessment. J. Harry Foley, Secretary to Governor Edwards, State Superintendent of Weights and Measures. Joseph A. Delaney, of Paterson, Common Pleas Judge in place of William W. Watson. Joseph F. Autenreith, of Jersey City, in place of President John J. Treacy, resigned, on Public Utilities Commission. Austin H. Swackhamer, of Woodbury, Judge of Gloucester Common Pleas, in place of Francis B. Davis. BOOK RECEIVED. THE NATURE OF THE JUDICIAL PROCESS. By Benjamin N. Cardozo, New Haven: Yale University Press, 1821. This book is especially welcome just now, after reading Judge Cardozo's article in the December number of the "Harvard Law Review," entitled "A Ministry of Justice," which shows that his study of the nature of the judicial process has led him to seek for practical means to correct the errors that have crept into the law in the application of legal principles. This article in the "Harvard Law Review" is in itself the result of his study during his long experience on the Bench of the problem he deals with in these lectures on the nature of the judicial process. The book consists of four lectures delivered in the William L. Storrs' lecture series in the Law School of Yale University, 1921. The titles of the lectures suggest the scope of his inquiry. They include: The Method of Philosophy; The Methods of History, Tradition and Sociology; the Judge as a Legislator; Adherence to Precedent; The Subconscious Element in the Judicial Process. "Any Judge," he says, "one might suppose, would find it easy to describe the process which he had followed a thousand times and more. Nothing could be farther from the truth." In telling of the study of precedents in arriving at the rule of law to be applied to the decision of cases, he takes up, first, in the introduction, the method of philosophy and inquiries, in what proportions different sources of information shall be allowed to contribute to the result. If a precedent is applicable, when shall he refuse to follow it, and if no precedent is applicable, how does he reach the rule that will make a precedent for the future? "If," he says, "I am seeking logical consistency, the symmetry of the legal structure, how far shall I seek it? At what point shall the quest be halted by some discrepant custom, by some consideration of the social welfare; by my own or the common standards of justice or morals?" And again, he says: "The first thing he does is to compare the case before him with the precedents, whether stored in his mind or hidden in the books. I do not mean that the precedents are ultimate sources of the law, supplying the sole equipment for the legal armory, the sole tools, to borrow Maitland's phrase, 'in the legal smithy.' Back of precedents are the basic juridical conceptions which are the postulates of judicial reasoning, and farther back are the habits of life, the institutions of society, in which those conceptions had their origin, and which, by a process of interaction, they have modified in turn." In the lecture on the methods of History, Tradition and Sociology, he shows how the method of Philosophy comes in competition with other tendencies which find their outlets in other methods. The tendency of a principle to expand itself to the limit of its logic may be counteracted by the tendency to confine itself within the limits of its history. "Very often," he says, quoting Justice Holmes, "the effect of history is to make the path of logic clear. History, in illuminating the past, illuminates the present, illuminates the future." The law of real property supplies the readiest example of a field where there can be no progress without history, and where "a page of history," to quote Holmes again, "is worth a volume of logic." He refers to leading examples of cases in which history has moulded the rules established by precedents and customs, and how the Law Merchant has not been moulded into a code, but has been expanded and enlarged to meet the wants of trade, and how the course of dealing to be followed is defined by the customs, or, more properly speaking, the usages of a particular trade, or market, or profession, and the natural and spontaneous evolutions of habit fix the limitation of right and wrong. The law of real estate is taken merely as an example. Maitland, Holmes, Pollock and Pound, and many others, have pointed out the historical origins and development in the forms of action, the law of pleading, the law of contract, and the law of torts. The historic influences are strong in some departments of the law, and in others larger and fundamental conceptions tend to control the judicial mind, and there is a tendency to harmony of the law of different countries. From History and Philosophy and custom he passes to the power of Social Justice, which he says is the force that in our day is becoming the greatest of the directive forces of the law. It is by the way of history and tradition that he comes to the method of Sociology. It is by the common law method of applying old principles to new conditions that Courts have been able to preserve the continuity of the law in changing conditions. Among the leading cases cited is the Bakeries case, Lochner v. New York, 198 U. S. 45, wherein Judge Cardozo suggested that in this decision the dissenting opinion of Justice Holmes was the beginning of a new point of view in the dealing with the social welfare, which, he said, has since written itself into law. Justice Holmes made the remark, "The Fourteenth Amendment does not enact Herbert Spencer's Social Status," and Judge Cardozo cites later cases in the Supreme Court to the effect that "A constitution is not intended to embody a particular economic theory, whether of paternalism ... or of _laissez faire_." It was by careful research of the effect of long hours of work for women that the change of opinion was brought about. There is a short and very interesting lecture on precedents that are of doubtful value questioning what ought to be done with them. He quotes President Roosevelt's message to Congress, December 8, 1908, in which he says: "The chief lawmakers in our country may be, and often are, the Judges, because they are the final seal of authority.... The decisions of the Courts on economic and social questions depend upon their economic and social philosophy; and, for the peaceful progress of our people during the Twentieth century, we shall owe most to those Judges who hold a Twentieth century economic and social philosophy and not a long and out-grown philosophy which was itself the product of primitive economic conditions." This aroused at the time, he says, a storm of criticism and betrayed ignorance of the nature of the judicial process, but the author said he had no quarrel with the doctrine that Judges ought to be in sympathy with the spirit of their times. Yet this does carry us very far upon our road to the truth. The spirit of the age, as it is revealed to each of us, is only too often only the spirit of the group in which the accidents of birth, or education, or fellowship have given us a place. No effort or revolution of mind will overthrow utterly and at all times the empire of these unconscious loyalties. The relation of the law to the economic and social progress is of great importance at this time, and it is well for us to have the help of this thoughtful and suggestive discussion by an experienced and conscientious Judge. E. Q. K. OBITUARIES. MR. THOMAS W. RANDALL. Mr. Thomas William Randall, long prominent as a lawyer in Paterson, died at his residence at Upper Preakness, a few miles from that city, on Feb. 9, 1922, after a long illness. Up until a few days of his death he expected to live at least through the coming Summer, but the final end came with little warning. Mr. Randall was born at Slough, in Buckinghamshire, England, about twenty miles from London, near the historic Windsor Castle and famous Stoke Pogis church, on June 24, 1853, and is a descendant of some of the most substantial and oldest families in that locality. He arrived in the United States, with his parents, on June 8, 1866, sailing from London, and resided first in Franklin township, Bergen county, and later at Hawthorne, in Passaic county, until he entered upon the study of his profession. He first studied law in the office of Judge Hopper, in Paterson, and afterwards with Messrs. Pennington & DeWitt, of Newark, and also attended the Columbia Law School in New York. He was admitted to the New Jersey Bar at the June Term of the Supreme Court in 1877, and, after spending some time abroad, came to Paterson and entered upon the practice of law, in which he was actively engaged ever after until his last illness. He became a counselor at the February Term, 1889. Mr. Randall took no active part in politics, and never held a political office; he had no liking for mere partisanship. His practice was large in the Orphans' Court and in Chancery proceedings, as he settled many estates. He was a Special Master of the Court of Chancery and as such many matters of reference were heard by him, and always with promptness and efficiency. He was also a Supreme Court Commissioner. He was counsel for many of the old Passaic families and for various corporations. In the great Paterson fire he lost every thing in his office except what was in his safe. He was an extensive reader of good books and had an excellent memory, a refined taste and the best of habits. He had none of the common vices of the day. For many years Mr. Randall was a member of the Second Presbyterian Church. He served there on the Board of Trustees and was also a member of the Session. Mr. Randall served the Second Church in a legal capacity without cost to the congregation and was always glad to give legal advice to the poor in need of it. He also served for many years on the Board of Trustees of the New Jersey Presbytery and was known by every clergyman in that Presbyterian body. He was seldom absent at a stated meeting. Mr. Randall was also the recognized friend of the Young Men's Christian Association and his services in legal transactions were also at the disposal of the Board of Managers. He was counsel for the Young Women's Christian Association and served as a member of the Investment Committee, with other prominent men of the city. When in 1886 the people of the People's Park District appealed to the late Dr. Charles D. Shaw and the elders of the Second Presbyterian Church for the establishment of a Sunday School in that district of the city, Mr. Randall was one of the most interested members of the Session in the movement to that end. Through the aid extended on behalf of the plan the Sunday School was opened a few weeks after the request was considered, and Mr. Randall became the superintendent. He frequently referred to that service as one of the happy experiences of his life. Later the school movement grew into the establishment of the Madison Avenue Presbyterian Church, now one of the most thriving congregations in the city, under the pastorate of the Rev. Franklin J. Miller. Mr. Randall frequently visited the People's Park church and school to note the progress of the work he had a prominent part in starting. He was also interested in the St. Augustine Presbyterian Church, and in establishing headquarters for the colored men on Governor street. Mr. Randall was a Christian citizen and was concerned in the welfare of Paterson. He was a member of the Passaic County Bar Association, a director of the Paterson Building and Loan Association, and was identified with the old Board of Trade. When the centennial celebration of Paterson was held in 1892 he was one of the hundred prominent men of the city selected to plan for that big event. For several years before his death Mr. Randall was a member of the Church of the Redeemer. Mr. Randall was specially fond of his native England, and made various journeys to that county. The Editor of this Journal has special cause to know of his interest in travel and fine qualities as a traveler, having been in his company abroad in 1898, 1903, 1907 and 1910, in some of which occasions he extended his trip to France, Switzerland, Italy, Germany and Holland; also to Ireland and Scotland. In 1910 he saw the Passion Play. He was also a frequent visitor to Lake Mohonk. From its beginning he was a patron and valued friend of this Journal, frequently sending to it copies of legal articles from English newspapers and occasionally contributing to its pages. The article we shall publish in our next issue, entitled "A Letter to Portia," was received from him only a few days before his death, as were some notes concerning the death of his friend, Mr. Robert Hopper, also of the Paterson Bar. In 1879 Mr. Randall married Miss Jennie S. Perry, a well known and highly esteemed teacher in the Paterson Public Schools, and at one time principal of School Number Two. Mrs. Randall died in 1912. There survives one son, Edmund Brown Randall, who is now the Judge of the Paterson District Court. A brother of Thomas W., Mr. Richard Randall, also a member of the Paterson Bar, died Oct. 16, 1913. COL. E. LIVINGSTON PRICE. Colonel Edward Livingston Price, for 56 years past a member of the Essex County Bar, died at his home, 112 Bruen street, Newark, on February 4, from a heart attack, after an illness of about one year. Colonel Price was born in New York City Dec. 20, 1844, being a brother to former Governor Rodman M. Price, and a son of Francis and Maria Louisa (Hart) Price of New York City. He received his education at Dr. Cattell's Edgehill School, Princeton; Dr. Woodhull's School, Freehold, and Dr. John F. Pingry's School, then in Newark and now in Elizabeth. He would have gone to college had it not been for the outbreak of the Civil War. He entered the Union Army in April, 1861, when he was sixteen, as Second Lieutenant of Company E, 74th Regiment, New York Volunteers, having been unable to get a commission in New Jersey. Shortly afterward he was promoted to First Lieutenant. In this capacity he served from July, 1861, to April, 1862, when Major General Hooker placed him on his personal staff as Ordinance officer of the Third Army Corps, "Hooker's Division." As Ordinance officer he served at the siege of Yorktown, Va., and during the whole of the peninsular campaign. In August, 1862, he became Major of his old Regiment, the 74th New York, which he commanded through Pope's campaign in Virginia, in the battles of Bristow Station, Second Manassas and Chantilly. His promotion to the Colonelcy of the 145th New York Volunteers took place on February 18, 1863. He served with this Regiment until January, 1864, taking part in the battles of Chancellorsville and Gettysburg. At the end of the War he studied law with the late U. S. Justice Joseph Bradley, and was admitted as a New Jersey attorney at the June Term, 1866, but did not become counselor until February, 1879. He also became admitted to the various United States Courts. He became, in Newark, an active lawyer not only but a strong political speaker and manager, and was long chairman of the Essex County Democratic Committee and, for a time, of the State Democratic Committee. His ability as an organizer and his forcefulness as a speaker made him a powerful factor in moulding sentiment in party conventions. His tall figure and military bearing added their effect. In the latter years of his political activity he was familiarly referred to as the "Old War Horse of the Democracy." As a lawyer he ranked high in municipal practice. He was counsel for the city of Newark and various outlying townships and for many of the Boards in Newark. In 1865, before he became of age, he accepted a nomination for Assembly from Essex county and was sworn into office just after he rounded his twenty-first year. He was re-elected in 1867. As a legislator he applied his active intelligence to a study of the needs of his constituents and of the State in general and was the author of many laws now on the statute books. In later life Colonel Price bought a farm near Branchville, Sussex county, and spent much of his time there. On June 1, 1864, Colonel Price married Emma, daughter of William and Mary Ann Marriott of Newark. On April 27, 1887, he was married again, the second wife being Frederica Theresa, daughter of Edward C. and Eva Elizabeth Eberhardt of Newark. His surviving children are a son, Frank M. Price, who lives at the Price home, and two daughters, Mrs. Frances Maria Josephine Spear, wife of Edwin M. Spear of Trenton, and Mrs. Marion White, a widow, also of Trenton. Edward Livingston Price, the eldest son, died three years ago. The eldest daughter, Marie Louise Jones, died in Kansas City, Mo. MR. CHARLES J. ROE. Mr. Charles J. Roe, of the Jersey City Bar, died in Faith Hospital, St. Petersburg, Florida, on Feb. 10th. For some time past he had not been in good health, and he went South the latter end of January to seek improvement. Soon after his arrival there he became worse and entered the hospital where he died. In Jersey City he had recently made his home, for himself and wife, in the Fairmount Hotel on the Boulevard. Mr. Roe was the son of Charles Roe and Elizabeth Ann (Coult) Roe, and was born in Sussex county, Sept. 11, 1850. His father was the surrogate of that county for three terms (1863-'78) and then opened a drug store in Newton. The son obtained his preparatory education at Chester Institute and Newton Collegiate Institute; then entered Princeton College and was graduated therefrom in 1870, in the same class as Chief Justice Gummere and ex-Judge George M. Shipman of Belvidere. He then studied law with the late Levi Shepherd of Newton, and became an attorney at the June Term, 1873, and a counselor three years later. He practiced very successfully in Newton until 1894, a portion of the time having a law partner, Mr. Frank Shepherd; at the last named date, he removed to Jersey City. Recently he has had, as a law partner, J. Haviland Tompkins, the firm being Roe & Tompkins. Mr. Roe was an Advisory Master of the Court of Chancery and Supreme Court Commissioner. His practice was a general one, but he somewhat specialized in Chancery work. He was recognized as an able attorney, of scholarly instincts, being learned not only in his profession but in the arts and sciences. He knew some foreign languages and had traveled extensively in Europe as well as in this country. Mr. Roe married Margaret, daughter of James F. and Sarah (Northrup) Martin, and is survived by his wife, and his sister, Mrs. John R. Hardin of Newark. Transcriber Notes: Passages in italics were indicated by _underscores_. Small caps were replaced with ALL CAPS. Throughout the dialogues, there were words used to mimic accents of the speakers. Those words were retained as-is. Errors in punctuations and inconsistent hyphenation were not corrected unless otherwise noted. On page 67, "complaintants" was replaced with "complainants". On page 74, "breaking a storehouse" was replaced with "breaking into a storehouse". On page 76, "B & B" was replaced with "B. & B.". On page 78, a period was deleted after "ESSEX". On page 88, "37 N. Y. Supp, 496" was replaced with "37 N. Y. Supp. 496". On page 90, "haled" was replaced with "hauled". On page 94, "Christain" was replaced with "Christian". On page 94, "Assocaition" was replaced with "Association". 
43945	----	[Transcriber's Note: Bold text delimited with equal signs, italics delimited with underscores.] A TREATISE UPON THE LAW OF COPYRIGHT A TREATISE UPON THE LAW OF COPYRIGHT IN THE UNITED KINGDOM AND THE DOMINIONS OF THE CROWN, AND IN THE UNITED STATES OF AMERICA CONTAINING A FULL APPENDIX OF ALL ACTS OF PARLIAMENT INTERNATIONAL CONVENTIONS, ORDERS IN COUNCIL TREASURY MINUTE AND ACTS OF CONGRESS NOW IN FORCE By E. J. MACGILLIVRAY, LL. B. (CANTAB.) OF THE INNER TEMPLE, BARRISTER-AT-LAW MEMBER OF THE FACULTY OF ADVOCATES IN SCOTLAND LONDON JOHN MURRAY, ALBEMARLE STREET TO THOMAS EDWARD SCRUTTON, ESQ., K. C. IN GRATITUDE FOR MUCH INSTRUCTION AND KINDNESS PREFACE The foundations of this work were laid by my endeavours to understand what is perhaps the most complicated and obscure series of statutes in the statute book. In working from time to time at the Law of Copyright I found great want of a text-book which should be exhaustive of the case law, and at the same time contain a concise and clearly arranged epitome of the statutory provisions. This want I have tried to supply for myself in the present compilation, and it is now published in the hope that it may prove useful to others. The present law is bad both in substance and form, but it is the more essential that those who have anything to do with literary or artistic property should comprehend it in so far as it is comprehensible. There are probably more pitfalls for the unwary in dealing with Copyright than with any other branch of the law. We have for some time been on the eve of a general codification and amendment of the Law of Copyright. It is, however, an eve of long and indefinite duration. It is now twenty-eight years since the Royal Commission on Copyright was appointed, and still nothing has been done to ameliorate the lamentable condition in which the Commissioners then found the law. Dissensions among those who are interested in Copyright, failure to come to a satisfactory arrangement with the colonies, and want of time at the disposal of the legislature are mainly responsible for this delay. In the meantime it is well that all those who are interested in Copyright should make themselves conversant with the law as it now is, so that when the time for legislation does at last come the result may be the more satisfactory. I have added to this work Part II., dealing with Copyright in the United States, and I hope it may prove useful not only to English but to American lawyers and publishers. I have to acknowledge much assistance in the preparation of this work and many invaluable suggestions from my friends, Mr. Langridge, of the Middle Temple, and Mr. Mackinnon, of the Inner Temple. E. J. MACGILLIVRAY. 3 TEMPLE GARDENS, _June 1902._ CONTENTS PAGE TABLE OF ENGLISH, SCOTCH, IRISH, INDIAN, AND COLONIAL CASES xix TABLE OF CASES IN THE UNITED STATES xxxi PART I _THE LAW OF COPYRIGHT IN THE UNITED KINGDOM AND THE DOMINIONS OF THE CROWN_ CHAPTER I INTRODUCTORY 3 CHAPTER II WHAT BOOKS ARE PROTECTED SEC. 1. WHAT IS AN ORIGINAL BOOK 10 Definition of a Book 10 Essential Elements of a Book 11 Physical Form 11 Literary Matter 13 Originality 15 Examples of what are Books 16 SEC. 2. PUBLICATION 36 Divestitive Publication 37 Investitive Publication 38 First Publication within the British Dominions 40 SEC. 3. AUTHOR'S NATIONALITY 42 SEC. 4. IMMORAL WORKS 46 SEC. 5. REGISTRATION 46 Before Action 46 The Requisite Entry 49 The Actual Title 49 The Time of First Publication 51 The Name and Place of Abode of the Publisher 52 The Name and Place of Abode of the Proprietor 52 Certificate of Registration 53 False Entries 54 Rectification of Register 54 SEC. 6. DELIVERY OF COPIES TO LIBRARIES 55 SEC. 7. DURATION OF PROTECTION 56 SEC. 8. COPYRIGHT IN LECTURES 57 CHAPTER III THE OWNER OF THE COPYRIGHT IN BOOKS SEC. 1. THE CROWN 59 SEC. 2. THE UNIVERSITIES 61 SEC. 3. THE AUTHOR 62 SEC. 4. THE EMPLOYER 66 Under Section 18 66 Scope of Section 67 Under such Employment 68 On Terms that Copyright shall belong to such Proprietor 68 Joint Employers 71 Payment 71 Author's Separate Rights 72 Employer's Rights where Section 18 does not apply 73 SEC. 5. THE ASSIGNEE 74 Before Publication 74 After Publication 77 Partial Assignment 80 Assignment distinguished from Licence 81 SEC. 6. THE LICENSEE 82 SEC. 7. THE EXECUTORS OR ADMINISTRATORS 83 SEC. 8. THE TRUSTEE IN BANKRUPTCY 83 CHAPTER IV INFRINGEMENT OF COPYRIGHT IN BOOKS SEC. 1. PROHIBITED ACTS, AND REMEDIES 84 Causing to be Printed 85 Damages 86 Account of Profits 86 Injunction 86 Delivery up of Copies 89 Customs Act 91 Every Offence 91 Limitation of Action 91 Pleading 92 Evidence 94 Discovery 94 Mode of Trial 94 Costs 95 SEC. 2. WHAT IS A PIRATICAL COPY 96 What is a Copy 97 A Substantial Part must be Taken 97 No _Animus Furandi_ need be Proved 100 Taking not necessarily for Profit 101 Copying may be Indirect and Unintentional 102 Custom of Trade 102 Fair Use 103 No one can Monopolize a Field of Labour 103 No Infringement to take Facts 104 No Infringement to take the General Scheme of another's Work 105 Every Author must do his own work 105 Work with a Different Object 109 Extract for purpose of Criticism 111 Improvement or Addition of New Matter no Excuse 112 Dramatization of a Novel 114 Abridgments 114 Translations 116 Licence 118 Abandonment 119 Acquiescence and Delay 119 Provision against the Suppression of Books 119 CHAPTER V PERFORMING RIGHTS SEC. 1. NATURE OF PERFORMING RIGHT 120 SEC. 2. PERFORMING RIGHT AT COMMON LAW 121 SEC. 3. WHAT IS A DRAMATIC WORK 123 SEC. 4. WHAT DRAMATIC WORKS ARE PROTECTED, AND DURATION OF PROTECTION 126 SEC. 5. WHAT IS A MUSICAL COMPOSITION 130 SEC. 6. WHAT MUSICAL WORKS ARE PROTECTED, AND DURATION OF PROTECTION 130 SEC. 7. REGISTRATION OF PERFORMING RIGHTS 131 Musical Compositions 133 SEC. 8. ASSIGNMENT OF PERFORMING RIGHTS 134 SEC. 9. INFRINGEMENT OF DRAMATIC PERFORMING RIGHTS 135 Public Performance 135 Substantial Part 138 Causing to be Represented 139 Knowledge 142 Innocent Agents 142 Licence 142 SEC. 10. INFRINGEMENT OF MUSICAL PERFORMING RIGHTS 142 Substantial Part 142 Public Performance 143 Causing to be Represented 143 SEC. 11. REMEDIES FOR INFRINGEMENT OF DRAMATIC PERFORMING RIGHTS 144 SEC. 12. REMEDIES FOR INFRINGEMENT OF MUSICAL PERFORMING RIGHTS 145 CHAPTER VI COPYRIGHT IN ENGRAVINGS SEC. 1. WHAT WORKS ARE PROTECTED 146 What is an Original Engraving 146 Originality 147 Maps, Charts, and Plans 148 Engravings in a Book 149 Must the Engraving be made within the British Dominions 150 The Engraving must be First Published within the British Dominions 150 Date of First Publication and Proprietor's Name 151 Name of Proprietor 151 Immoral Works 152 Duration of Protection 152 SEC. 2. THE OWNER OF THE COPYRIGHT 152 The Engraver 152 The Employer 153 The Assignee 154 SEC. 3. INFRINGEMENT OF THE COPYRIGHT 155 Prohibited Acts and Remedies 155 Guilty Knowledge 156 Limitation of Action 156 Costs 156 Copying for Private Use 156 What is a Piratical Copy 156 Licence a Defence 159 CHAPTER VII COPYRIGHT IN SCULPTURE SEC. 1. WHAT WORKS ARE PROTECTED 161 What is an Original Sculpture 161 The Sculpture must be First Published within the British Dominions 162 Publication 162 Author's Nationality 162 Proprietor's Name and Date 162 Proprietor's Name 163 Date 163 Immoral Works 163 Duration of Protection 163 SEC. 2. THE OWNER OF THE COPYRIGHT 164 The Artist 164 The Employer 164 The Assignee 164 SEC. 3. INFRINGEMENT OF THE COPYRIGHT 164 Prohibited Acts and Remedies 164 Guilty Knowledge 165 Limitation of Action 165 Copying for Private Use 165 What is a Piratical Copy 165 CHAPTER VIII COPYRIGHT IN PAINTINGS, DRAWINGS, AND PHOTOGRAPHS SEC. 1. WHAT WORKS ARE PROTECTED 167 Every Original Painting, Drawing, and Photograph 167 Originality 167 Artistic Merit 168 Publication Outside the British Dominions 168 Published 169 Nationality or Residence of Artist 170 Registration 171 The Requisite Entry 171 Name 173 Place of Abode 173 Short Description 173 Immoral Works 174 Duration of Protection 174 SEC. 2. THE OWNER OF THE COPYRIGHT 174 The "Author" 174 The Employer 175 The Assignee 176 SEC. 3. INFRINGEMENT 177 Prohibited Acts and Remedies 177 Cause or Procure 178 Innocent Agent 179 Unlawful Copy 179 Separate Offence 179 Copying for Private Use 180 Action on Breach of Contract 180 Fraudulent Acts 180 Limitation of Action 181 Evidence 181 What is a Piratical Copy 181 No Monopoly 181 What is a Copy 181 General Idea may be Taken 182 Material Part 183 Indirect Taking 184 Guilty Knowledge 184 Replicas 184 Licence a Defence 184 CHAPTER IX COLONIAL COPYRIGHT Books 186 Artistic Works 191 CHAPTER X INTERNATIONAL COPYRIGHT Works Produced in His Majesty's Dominions 193 Works Produced in Foreign Countries with which this Country has no Treaty 193 Works Produced in Foreign Countries with which this Country has a Treaty 193 What Foreign Works are entitled to Protection 195 Produced 195 Character of Work 196 Unpublished Works 196 Special Provisions 197 Works Produced in Foreign Countries before 6th December 1887 197 Formalities Required in case of Foreign Work 198 Who are Entitled to Sue in respect of a Foreign Work 200 Evidence of Title 200 Protection afforded to Foreign Works 200 Works Published before 6th December 1887 202 Translating Right 203 Articles in Newspapers and Periodicals 204 Photographic Works 204 Performing Right in Dramatic or Dramatic Musical Works 204 Express Provision as to particular kind of Infringement 205 CHAPTER XI COMMON LAW Title--Passing off 206 No Copyright in Title. 206 Whether Protection is based on a Right of Property in Title 207 Knowledge of Existence and Value on the part of the Public 208 Non-user of Title 208 No Fraud need be Proved 209 Must be Calculated to Deceive 209 Cases in which an Injunction Granted 209 Cases where Injunction Refused 211 Malicious Criticism 213 Slander of Title 213 Author who has parted with Copyright is entitled to Protect his Reputation 213 Protection from Breach of Faith or Contract 215 Unpublished Works 220 Speeches and Sermons 223 Letters 225 CHAPTER XII PUBLISHING AND PRINTING AGREEMENTS Publishers' Agreements 227 Printers' Agreements 230 PART II _THE LAW OF COPYRIGHT IN THE UNITED STATES_ CHAPTER I INTRODUCTORY 235 CHAPTER II WHAT WORKS ARE ENTITLED TO COPYRIGHT SEC. 1. AN ORIGINAL LITERARY OR ARTISTIC WORK 236 SEC. 2. NATIONALITY OF THE AUTHOR 247 SEC. 3. NECESSARY FORMALITIES 250 Conditions Precedent 251 Delivery of Title 251 Delivery of Description 253 Delivery of Copies 253 Printing in the United States 254 Retrospective Provision 254 Notice of Copyright 255 Publication 260 SEC. 4. IMMORAL WORKS 266 SEC. 5. DURATION OF COPYRIGHT 267 CHAPTER III WHO IS THE OWNER OF THE COPYRIGHT SEC. 1. THE AUTHOR 269 SEC. 2. THE EMPLOYER 271 SEC. 3. THE STATE 272 SEC. 4. THE ASSIGNEE 272 CHAPTER IV INFRINGEMENT OF COPYRIGHT SEC. 1. WHAT IS A PIRATICAL COPY 276 Copying may be Indirect 277 The Intention need not be Bad 277 Proof of Copying 277 No Monopoly in the Subject-Matter 278 Taking a Substantial Part 279 Fair Use 281 Improvement no Excuse 283 Different Object 283 Extract for Review 284 Abridgments 284 Translations 286 Dramatic Performing Right 286 Musical Rights 287 SEC. 2. PROHIBITED ACTS AND REMEDIES 287 Account of Profits 289 Damages 290 Penalties 290 Forfeiture 290 Injunction 291 Who is Liable 291 Limitation of Action 292 Acquiescence 292 Pleading 293 Penalties for affixing False Notice 293 Importing Books Printed outside the United States 294 CHAPTER V COMMON LAW RIGHTS SEC. 1. PUBLISHED WORK 296 Passing Off 296 SEC. 2. UNPUBLISHED WORK 298 APPENDIX BRITISH STATUTES THE ENGRAVING COPYRIGHT ACT, 1734 303 THE ENGRAVING COPYRIGHT ACT, 1766 305 THE COPYRIGHT ACT, 1775 (Universities) 307 THE PRINTS COPYRIGHT ACT, 1777 310 THE SCULPTURE COPYRIGHT ACT, 1814 311 THE DRAMATIC COPYRIGHT ACT, 1833 313 THE LECTURES COPYRIGHT ACT, 1835 315 THE PRINTS AND ENGRAVINGS COPYRIGHT ACT, 1836 316 THE COPYRIGHT ACT, 1836 (Compensation to Libraries) 317 THE COPYRIGHT ACT, 1842 317 THE INTERNATIONAL COPYRIGHT ACT, 1844 329 THE COLONIAL COPYRIGHT ACT, 1847 337 COPYRIGHT IN DESIGNS ACT, 1850, secs. 6 and 7 (Sculpture) 338 THE INTERNATIONAL COPYRIGHT ACT, 1852 339 THE FINE ARTS COPYRIGHT ACT, 1862 343 THE INTERNATIONAL COPYRIGHT ACT, 1875 348 THE CANADA COPYRIGHT ACT, 1875 349 THE CUSTOMS LAWS CONSOLIDATION ACT, 1876 350 THE COPYRIGHT (MUSICAL COMPOSITIONS) ACT, 1882 351 THE INTERNATIONAL COPYRIGHT ACT, 1886 353 THE COPYRIGHT (MUSICAL COMPOSITIONS) ACT, 1888 360 THE REVENUE ACT, 1889 361 INTERNATIONAL CONVENTIONS THE BERNE CONVENTION, 1886 361 ORDER IN COUNCIL, 1887 370 THE ADDITIONAL ACT OF PARIS, 1896 373 ORDER IN COUNCIL, 1898 376 TREASURY MINUTE GOVERNMENT PUBLICATIONS TREASURY MINUTE, 1887 377 AMERICAN STATUTES REVISED STATUTES, 1874 379 ACT OF CONGRESS, June 18, 1874 384 " " August 1, 1882 384 " " October 1, 1890 385 " " March 3, 1891 385 " " March 3, 1893 389 " " March 2, 1895 390 " " January 6, 1897 390 " " March 3, 1897 391 TABLE OF CASES _N. B. In the page references the figures in larger type indicate that the facts of the case will be found most fully stated on that particular page._ ENGLISH, SCOTCH, IRISH, INDIAN, AND COLONIAL CASES ABERNETHY _v._ Hutchinson 1825 3 L. J. (O. S.), 37, 38, 219, Ch., 209 222, =224= Adams _v._ Batley 1887 18 Q. B. D., 625 144 Aflalo _v._ Lawrence -- [1902], 1 Ch., 264 =71= Ager _v._ Collingridge 1886 2 T. L. R., 291 =20= Ager _v._ P. & O. Steam 1884 26 Ch. D., 637 =20=, 102, 118 Navigation Co. Alexander _v._ Mackenzie 1847 9 D., 748 =23=, =101=, 104 Allen _v._ Lyon 1884 5 Ont. Rep., 615 118 Anglo-Canadian _v._ 1889 17 Ont. Rep., 239 191 Suckling Anonymous Case 1774 Lofft., 775 115 Anstruther _v._ Bentley 1866 14 W. R., 630 228 Archbold _v._ Sweet 1832 5 C. and P., 219 214 Austria, Emperor of, _v._ 1861 4 L. T. (N. S.), 494 90 Day Avanzo _v._ Mudie 1854 10 Exch., 203 =200= Avery _v._ Wood -- [1891], 3 Ch., 115 144,156 BACH _v._ Longman 1777 2 Cowp., 623 36, 97 Baily _v._ Taylor 1829 1 Russ. and My., 73 15, =23=, 86, 87, 98, 105, 109 Barfield _v._ Nicholson 1824 2 Sim. and Stu., 1 62, 220, 229 Barnett _v._ Glossop 1835 1 Bing., N. C., 633 93 Baschet _v. London_ -- [1900], 1 Ch., 73 46, 152, 174, _Illustrated Standard_ 179, 180, 201 Baskett _v._ Cunningham 1762 1 Wm. Black, 370 59, 60 Baskett _v._ University of 1758 2 Burr., 661 59 Cambridge Bastow, _ex parte_ 1854 14 C. B., 631 54, 81, 82 Beal, _ex parte_ 1868 L. R., 3 Q. B., 387 91, 173, 179, 181, 184 Beckford _v._ Hood 1798 7 T. R., 620 36, 47, 86, 206 Beere _v._ Ellis 1889 5 T. L. R., 330 138 Bell _v._ Walker 1785 1 Bro. Ch. Cas., 450 115 Bell _v._ Whitehead 1839 8 L. J. Ch., 141 112 Bensley _v._ Bignold 1822 5 B. and Ald., 335 230 Bentley _v._ Foster 1839 10 Sim., 329 =42= Black _v._ Murray & Son 1870 9 M., 341 12, =26=, 27, 111 Blackie _v._ Aikman 1827 5 Sh., 719 229 Blackwell _v._ Harper 1740 2 Atk., 93 146, 151, 152 Blake _v._ Nicholson 1814 3 M. and S., 167 230 Blanchett _v._ Ingram 1887 3 T. L. R., 687 38 Bleaden _v._ Hancock 1829 4 C. and P., 152 230 Bogue _v._ Houlston 1852 5 De G. and Sm., 267 12, =34=, 149 Bohn _v._ Bogue 1846 10 Jur., 420 98, 101 Bolton _v._ Aldin 1895 65 L. J. Q. B., 120 181 Bolton _v._ London 1898 14 T. L. R., 550 179, 183 Exhibitions Boosey _v._ Davidson 1846 4 D. and L., 147 92, 93 " " 1849 13 Q. B., 257 42, 94 Boosey _v._ Fairlie 1877 7 Ch. D., 301 26 Boosey _v._ Jefferys 1851 4 Exch., 145 42 Boosey _v._ Purday 1846 10 Jur., 1038 93 " " 1849 4 Exch., 145 40, 42 Boosey _v._ Whight, -- [1899], 1 Ch., 836 11, 12 " " -- [1900], 1 Ch., 122 11, =33=, 97 Borthwick _v. Evening 1888 37 Ch. D., 449 88, 207, 209, Post_ 212 Boucicault _v._ Chatterton 1876 5 Ch. D., 267 36, 41, 127, 128, 129 Boucicault _v._ Delafield 1863 1 H. and M., 597 41, 129, 193 Boydell _v._ Drummond 1809 11 East., 142 230 Bradbury _v._ Beeton 1869 39 L. J. Ch., 57 207, 209, 211 Bradbury _v._ Dickens 1859 27 Beav., 53 207 Bradbury _v._ Hotten 1872 L. R., 8 Ex., 1 99, 109, =110= Bradbury _v._ Sharp 1891 [1891], W. N., 143 89 Bramwell _v_, Halcomb 1836 3 My. and Cr., 737 99 Bridgman _v._ Green 1755 2 Ves. Sen., 627 219 Britain _v._ Hanks 1902 Wright, J., April 15 162, 163 British Museum _v._ Payne 1828 2 Y. and J., 166 56 Brooke _v._ Chitty 1831 2 Coop. Cas., 216 229 Brooke _v._ Milliken 1789 3 T. R., 509 91 Brooks _v._ Cock 1835 3 Ad. and E., 138 151 Brooks _v._ Religious Tract 1897 45 W. R., 476 183, 184 Society Brown _v._ Cooke 1846 16 L. J. Ch., 140 68, 71 Burnett _v._ Chetwood 1720 2 Mer., 441 46, 117 Butterworth _v._ Kelly 1888 4 T. L. R., 430 84 Butterworth _v._ Robinson 1801 5 Ves., 709 =28=, 115 Buxton _v._ James 1851 5 De G. and Sm., 80 40, 41, 42, 87 Byron _v._ Johnston 1816 2 Meriv., 29 215 CABLE _v._ Marks 1882 47 L. T. (N. S.), 432 =31= Cadell _v._ Anderson 1787 Mor. Dic., 8310 =26= Caird _v._ Sime 1887 12 A. C., 326 37, 38, 220, 221, =222= Cambridge University _v._ 1812 16 East, 317 56, 86 Bryer Campbell _v._ Scott 1842 11 Sim., 31 88, 101, 112 Caproni _v._ Alberti 1892 40 W. R., 235 162 Carnan _v._ Bowles 1786 1 Cox Cha. Cas., 16, 27, 113, 283 164 Carr _v._ Hood 1808 1 Camp., 354 _n_ 213 Cary _v._ Faden 1799 5 Ves. 24 16, 46 Cary _v._ Kearsley 1802 4 Esp., 168 16, 75, 98, 100, 101, 113 Cary _v._ Longman 1801 1 East, 358 12, 16, =26= Cassell _v._ Stiff 1856 2 K. and J., 279 53, 202 Cate _v._ Devon 1889 40 Ch. D., 500 11, =21=, 48, 50, 88, 99, 100,102 Chappell _v._ Boosey 1882 21 Ch. D., 232 121, 127 Chappell _v._ Davidson 1855 2 K. and J., 123 =210= " " 1856 18 C. B., 194 46, 49, 87, 93 Chappell _v._ Purday 1843 12 M. and W., 303 54, 55, 79 " " 1845 14 M. and W., 303 40, 42 Chappell _v._ Sheard 1855 2 K. and J., 117 50, =210= Chatterton _v._ Cave 1875 L. R., 10 C. P., 572 25, 26, 98, 123, 139 " " 1878 3 A. C., 483 25, 26, 97, =98=, 102, 138 Chilton _v._ Progress -- [1895], 2 Ch., 29 14, =33= Printing Co. Church _v._ Linton 1894 25 Ont. Rep., 131 19, 24, 33 Clark _v._ Bell 1804 Mor. Dic. Literary 92 Property, App. 9 Clark _v._ Bishop 1872 25 L. T. (N. S.), =47=, 120, =124=, 908 133, 134 Clarke _v._ Freeman 1848 11 Beav., 112 214 Clarke _v._ Price 1819 2 Wills, C. C., 157 227 Clay _v._ Yates 1856 1 H. and N., 73 231 Clement _v._ Maddick 1859 1 Giff., 98 101, 207, 209, =210= Clementi _v._ Golding 1809 2 Camp., 25 11, 36 Clementi _v._ Walker 1824 2 B. and C., 861 40, 41, =75=, 77 Clowes _v._ Hogg 1870 W. N., 268 =210= Cobbett _v._ Woodward 1872 L. R., 14 Eq., 407 =18=, 19, 95, 238 Cocks _v._ Purday 1848 5 C. B., 860 40, 42, 76, 77, 79, 93 Colburn _v._ Duncombe 1838 9 Sim., 151 76, 78 Colburn _v._ Simms 1843 2 Hare, 543 85, 86, 90 Cole _v._ Gear 1888 4 T. L. R., 246 141 Coleman _v._ Wathen 1793 5 T. R., 245 37, 122 Collette _v._ Goode 1878 7 Ch. D., 842 93 Collingridge _v._ Emmott 1887 57 L. T. (N. S.), 864 =50=, 51, 71 Collis _v._ Cater 1898 78 L. T. (N. S.), 613 =19= Comyns _v._ Hyde 1895 43 W. R., 266 =35=, 149 Constable _v._ Brewster 1824 3 S., 215 209, 229 Cooper, _in re_ 1902 19 Pat. Des. and 31 Trade Mark Cases, 53 Cooper _v._ Stephens -- [1895], 1 Ch., 567 =34=, 78, 81, 98, 99, 118, 154, 160 Cooper _v._ Whittingham 1880 15 Ch. D., 501 84, 85, 87, 102 Coote _v._ Ingram 1887 35 Ch. D., 117 95 Coote _v._ Judd 1883 23 Ch. D., 727 70, 93 Cornish _v._ Upton 1861 4 L. T. (N. S.), 862 17 Corns _v._ Griffiths 1873 [1873], W. N., 93 =210= Correspondent Newspaper 1865 11 Jur. (N. S.), 540 48, 208 _v._ Saunders Cowan _v._ Milbourn 1867 L. R., 2 Ex. 46 Cowen _v._ Hulton 1882 46 L. T. (N. S.), 897 =212= Cox _v._ Cox 1853 1 Eq. Rep., 94 77, 214 Cox _v. Land and Water_ 1869 L. R., 9 Eq., 324 11, =21=, 48, 89, 206 Cumberland _v._ Copeland 1861 7 H. and N., 118 134 " " 1862 1 H. and C., 194 77 Cumberland _v._ Planché 1834 1 A. and E., 580 135 D'ALMAINE _v._ Boosey 1835 1 Y. and C. Ex., 288 36, 37, =42=, 97, =113=, 115, 142 Davidson, _ex parte_ 1853 18 C. B., 296 54, 55 " " 1856 2 E. and B., 577 54 Davidson _v._ Bohn 1848 6 C. B., 456 77, 80, 164 Davis _v._ Comitti 1885 52 L. T. (N. S.), 539 14, =32= Day _v._ Simpson 1865 18 C. B. (N. S.), 680 126 De Berenger _v._ Wheble 1819 2 Stark, 548 157 Delfe _v._ Delamotte 1857 3 K. and J., 581 86, 90 Delondre _v._ Shaw 1828 2 Sim., 237 42, 86 Dennison _v._ Ashdown 1897 13 T. L. R., 226 79 Dickens _v._ Lee 1844 8 Jur., 183 116 Dicks _v._ Brooks 1880 15 Ch. D., 22 95, 157, 159, 213 Dicks _v._ Yates 1881 18 Ch. D., 76 48, 52, 96, =207=, =212= Dobson, _ex parte_ 1892 12 N. Z. L. R., 171 41, 80 Dodsley _v._ Kinnersley 1761 Amb., 403 =115=, 116 Dodson _v._ Martin 1880 24 Sol. J., 572 46 Donaldson _v._ Beckett 1774 2 Bro. P. C., 129 6, 8, 61, 122, 152, 206, 220 Du Bost _v._ Beresford 1810 2 Camp., 511 174 Duck _v._ Bates 1884 13 Q. B. D., 843 =136= Duck _v._ Mayen 1892 8 T. L. R., 339 142 Dupuy _v._ Dilkes 1879 48 L. J. Ch., 682 79, 172 EATON _v._ Lake 1888 20 Q. B. D., 378 77, 118, 134, 142 Ellis _v._ Marshall 1895 11 T. L. R., 522 175, 176, 180 Ellis _v._ Ogden 1894 11 T. L. R., 56 175, 176 Exchange Telegraph _v._ -- [1897], 2 Ch., 48 37, =219= Central News Exchange Telegraph _v._ -- [1896], 1 Q. B., 147 37, 219 Gregory Eyre _v._ Carnan 1781 6 Bac. Abr., 509 59 Eyre _v._ Walker 1735 4 Burr., 2325 6 FAIRLIE _v._ Boosey 1879 4 A. C., 711 53, 134 Farina _v._ Silverlock 1858 4 K. and J., 650 168 Fishburn _v._ Hollingshead -- [1891], 2 Ch., 371 =199=, 200 Fisher _v._ Folds 1834 1 Jon. Ir. Ex., 12 35 Fitzbull _v._ Brooke 1844 2 D. and L., 477 144 Fores _v._ Johnes 1802 4 Esp., 97 152, 174 Forrester _v._ Walker 1741 4 Burr., 2331 220 Fourmat _v._ Pearson 1897 14 T. L. R., 82 14 French _v._ Day 1893 9 T. L. R., 548 141 Frowde _v._ Parish 1896 27 Ont. Rep., 526 77, 191 Fuller _v._ Blackpool -- [1895], 2 Q. B., 429 =124=, 126, 131 Winter Gardens GALE _v._ Leckie 1817 2 Stark, 107 227 Gambart _v._ Sumner 1859 5 H. and N., 5 156 Gambart _v._ Ball 1863 14 C. B. (N. S.), 157, 182 306 Garland _v._ Gemmill 1887 Canada, 14 S. C. R., 16, 106, 108, 321 256 Gee _v._ Pritchard 1818 2 Swanst., 402 225, 226 Geissendorfer _v._ 1896 13 T. L. R., 91 170 Mendelssohn Gibson _v._ Carruthers 1841 8 M. and W., 321 227 Gilbert _v._ Boosey 1889 _The Law Times_, =214= Sept. 28, 1889 Gilbert _v._ 1894 11 T. L. R., 4 =218= _Star_ Newspaper Gillett _v._ Mawman 1808 1 Taunt., 140 230, 231 Goubard _v._ Wallace 1877 36 L. T. (N. S.), 47 704 Grace _v._ Newman 1875 L. R., 19 Eq., 623 =19=, 77 Granard _v._ Dunkin 1809 1 Ball and B., 207 225 Graves, _ex parte_ 1868 L. R., 3 Ch., 642 178 Graves, _ex parte_ Walker 1869 L. R., 4 Q. B., 715 54, 55, 168, 172, 173, 176, 182 Graves _v._ Ashford 1867 L. R., 2 C. P., 410 152, 157, 182 Graves _v._ Gorrie 1900 32 Ont. Rep., 266 192 Graves _v._ Mercer 1868 16 W. R., 790 156 Green _v._ 1899 [1899], 1 I. R., 386 180 _Irish Independent_ Grierson _v._ Jackson 1794 Irish T. R., 304 59 Griffin _v._ Kingston 1889 17 Ont. Rep., 660 =33= Griffith _v._ Tower -- [1897], 1 Ch., 21 227 Publishing Company Grimson _v._ Eyre 1804 9 Ves., 341 86 Guggenheim _v._ Leng 1896 12 T. L. R., 491 35, 183, 185 Guichard _v._ Mori 1831 9 L. J. (O. S.), Ch. 227 Gyles _v._ Wilcox 1740 2 Atk., 142 25, =115= HALL, _in re_ 1899 24 Vict., L. R., 702 54 Hall _v._ Whittington 1892 18 Vict., L. R., 525 21 Hanbury _v._ Dumsday 1884 10 Vict., L. R. Eq., 32 272 Hanfstaengl _v._ American -- [1895], 1 Q. B., 347 198, =199= Tobacco Hanfstaengl _v._ Baines -- [1895], A. C., 20 182, 184 Hanfstaengl _v._ Empire -- [1894], 2 Ch., 1 167, 182 Palace Hanfstaengl _v._ Empire -- [1894], 3 Ch., 109 182, 184, 196 Palace Hanfstaengl _v._ Holloway -- [1893], 2 Q. B., 1 198, =199=, 203 Harris _v._ Smart 1889 5 T. L. R., 594 =49=, 94 Harrison _v._ Hogg 1794 2 Ves., 322 151 Hasker _v._ Wood 1885 54 L. J. Q. B., 419 144, 156 Hatton _v._ Kean 1859 7 C. B. (N. S.), 268 26, =63=, 123 Hayward _v._ Lely 1887 56 L. T. (N. S.), 418 26, 46, 51, 93 Hazlitt _v._ Templeman 1866 13 L. T. (N. S.), 593 77 Hedderwick _v._ Griffin 1841 3 D., 383 27 Henderson _v._ Maxwell 1876 4 Ch. D., 163 51 " " 1877 5 Ch. D., 892 48 Hereford, Bishop of, _v._ 1848 16 Sim., 190 70, 73 Griffin Hildesheimer & Faulkner 1891 64 L. T. (N. S.), 452 =35=, 53, 74, _v._ Dunn 149 Hildesheimer _v._ Faulkner -- [1901], 2 Ch., 552 179, 180 Hime _v._ Dale 1803 2 Camp., 27 _n_ 11, 46 Hodges _v._ Welsh 1840 2 Ir. Eq. Rep., 266 28, 70, 111 Hogg _v._ Kirby 1803 8 Ves., 215 46, 86, 87, 104, =209=, 213, 229 Hogg _v._ Maxwell 1866 L. R., 2 Ch., 307 48 Hogg _v._ Scott 1874 L. R., 18 Eq., 444 47, 88, 92, 107, 119 Hole _v._ Bradbury 1879 12 Ch. D., 886 47, 54, 81, 90, 92, 93, 227 Hollinrake _v._ Truswell -- [1894], 3 Ch., 420 14, =32=, 36, 105 Holt _v._ Woods 1896 17 N. S. W. Eq., 36 80, 135 Hotten _v._ Arthur 1863 1 H. and M., 603 =18=, 19, 20, 94. 101, =106= Houston _v._ Mills 1834 1 M. and Rob., 325 230 Howard _v._ Gunn 1863 32 Beav., 462 225 Howitt _v._ Hall 1862 6 L. T. (N. S.), 348 79, 80 Hutchins, _ex parte_ 1879 4 Q. B. D., 483 135 INGRAM _v._ Stiff 1859 5 Jur. (N. S.), 947 210 Isaacs _v._ Fiddemann 1880 49 L. J. Ch., 412 47, 90 JARROLD _v._ Heywood 1870 18 W. R., 279 98 Jarrold _v._ Houlston 1857 3 K. and J., 708 =24=, 88, 94, 100, 101, =105=, 106, 113, =211= Jefferys _v._ Baldwin 1753 Amb., 164 146 Jefferys _v._ Boosey 1854 4 H. L. C., 815 15, 36, 37, 40, 41, =42=, 43, 44, =76=, 77, 79, 80, 119, 164, 286, 218, 221 Jefferys _v._ Kyle 1856 18 D., 906 76 Johnson, _in re_ 1902 19 Pat. Des. and 31 Trade Mark Cases, 56 Johnson _v._ Egan 1880 24 Sol. J., 572 229 Johnson _v._ Newnes -- [1894], 3 Ch., 663 =12=, 52, =70=, 72 Johnson _v._ Wyatt 1863 2 De G. J. and S. 88 Jovatt _v._ Winyard 1820 1 Jac. and W., 394 =216= KELLY _v._ Byles 1879 40 L. T. (N. S.), 623 207, =211= Kelly _v._ Hodge 1873 29 L. T. (N. S.), 387 90 Kelly _v._ Hooper 1841 1 Y. and C. Ch. 86,99 Cas., 197 Kelly _v._ Hutton 1868 L. R., 3 Ch, 703 207, 229 Kelly _v._ Morris 1866 L. R., 1 Eq., 697 16, 17, 88, 101, =105=, 106, 107, 108, 109, 113 Kelly _v._ Wyman 1869 17 W. R., 399 94 Kelly's Directories _v._ -- [1901], 1 Ch., 374 16, =85=, 95, Gavin & Lloyds 140 Kenrick _v._ Lawrence 1890 25 Q. B. D., 99 168, 174, 175 Kenrick _v._ Danube 1891 39 W. R., 473 14, 37 Collieries King _v._ Reed 1804 8 Ves., 223 23 Kyle _v._ Jefferys 1859 3 Macq., 611 77, 78 LACY _v._ Rhys 1864 4 B. and S., 873 47, 133, 134, 135 Lacy _v._ Toole 1867 15 L. T. (N. S.), 78 572 Lamb _v._ Evans -- [1893], 1 Ch., 218 12, =17=, 67, =69=, 104, 105, =217=, 237 " " -- [1892], 3 Ch, 462 88 Latour _v._ Bland 1818 2 Stark, 382 78, 83, 119 Lauri _v._ Renad -- [1892], 3 Ch., 402 65, 79, =198=, 203 Lawrence _v._ Smith 1822 Jac., 471 46 Leader _v._ Purday 1849 7 C. B, 4 26, 50, 78, 93, 130, Leader _v._ Strange 1849 2 C. and K., 1010 84 Lee _v._ Gibbings 1892 8 T. L. R., 773 215 Lee _v._ Simpson 1847 3 C B., 871 102, =123=, 136, 142 Lennie _v._ Pillans 1843 5 D., 416 =24=, 98, 105 Leslie _v._ Young -- [1894], A. C., 335 12, =22=, 98, 113, 237 Levi _v._ Champion 1887 3 T. L. R., 286 175 Levy _v._ Rutley 1871 L. R., 6 C. P., 523 =64=, 78 Lewis _v._ Chapman 1840 3 Beav., 133 87 Lewis _v._ Fullarton 1839 2 Beav., 6 =24=, 88, 89, =106=, 107 Leyland _v._ Stewart 1876 4 Ch. D., 419 77, 134 Licensed Victuallers _v._ 1888 38 Ch. D., 139 207, 208 Bingham Liverpool _v._ Commercial -- [1897], 2 Q. B., 1 53, 78, 82, 96 Press London Printing _v._ Cox -- [1891], 3 Ch., 291 52, 78, 118, 172, 176, 185 London Stereoscopic _v._ 1888 5 T. L. R., 169 183 Kelly Longman _v._ Winchester 1809 16 Ves., 269 16, 17, 24, 104, =105=, 109 Louie _v._ Smellie 1895 11 T. L. R, 515 =217= Lover _v._ Davidson 1856 1 C. B. (N. S.), 182 26, 41, 50, 53, 78, 130 Low _v._ Routledge 1864 L. R, 1 Ch., 42 47, =51=, 53 Low _v._ Ward 1868 L. R, 6 Eq., 415 12, 44 Lucas _v._ Cooke 1880 13 Ch. D., 872 53, 80, 176 Lucas _v._ Williams -- [1892], 2 Q. B., 113 181 Lyon _v._ Knowles 1863 3 B. and S., 556 140 Lytton _v._ Devey 1884 52 L T. (N. S.), 121 225, 226 MACFARLANE _v._ Oak 1883 10 R., 801 46 Foundry Mack _v._ Petter 1872 L. R., 14 Eq., 431 207 Macklin _v._ Richardson 1770 Amb., 694 37, 120, 121, 222 Mackmurdo _v._ Smith 1798 7 T. R., 518 151 Maclean _v._ Moody 1858 20 D., 1154 20, 62, 76 Macmillan _v._ Shamsal 1894 Ind. L. R., 19 116 Bomb., 557 Macmillan _v._ Suresh 1890 Ind. L. R., 17 =25=, 47, 51, Chunder Deb Calc., 951 52, 77, 92 Macneill _v._ Williams 1847 11 Jur., 344 =23=, 87 Manners _v._ Blair 1828 3 Bligh (N. S.), 391 59 Maple _v._ Junior Army 1882 21 Ch. D., 369 13, 14, =19=, and Navy Stores =34=, 51, 69, 87, 95, 97, 149, 238 Marchant _v._ Evans 1818 2 Moore, 14 230 Marsh _v._ Conquest 1864 17 C. B. (N. S.), 47, 121, 134, 418 135, 140 Marshall _v._ Broadhurst 1831 1 Tyrw., 348 227 Marshall _v._ Petty 1900 17 T. L. R., 501 34, 78, 154, 160 Martin, _in re_ 1884 10 Vict. L. R., 196 54 Martin _v._ Wright 1833 6 Sim., 297 113, 155, 156, 158, 213 Marzials _v._ Gibbons 1874 L. R., 9 Ch., 518 24, 65 Mason _v._ Murray -- Cited, 1 East, 360 26 Mathieson _v._ Harrod 1868 L. R., 7 Eq., 270 51 Matthewson _v._ Stockdale 1806 12 Ves., 270 15, 16, 104, 105, 109 Mavor _v._ Pyne 1825 3 Bing., 285 230 Mawman _v._ Gillett 1809 2 Taunt., 325 231 Mawman _v._ Tegg 1826 2 Russ., 385 83, 86, 88, 94, 99, 104, 105, 111 Maxwell _v._ Hogg 1867 L. R., 2 Ch., 307 14, 51, 207, 208 Maxwell _v._ Somerton 1874 22 W. R., 313 95, 102 Mayall _v._ Higbey 1862 1 H. and C., 148 180, 223 Mayhew _v._ Maxwell 1860 1 J. and H., 312 52, 72, 73 Melville _v._ -- [1895], 2 Ch., 531 174, 175, 176 _Mirror of Life_ Merryweather _v._ Moore -- [1892], 2 Ch., 518 =217= Metzler _v._ Wood 1878 8 Ch. D., 606 46, 95, =211= Millar _v._ Taylor 1769 4 Burr., 2303 =6=, 7, 37, 42, 59, 115, 117, 119, 206, 220, 221 Moffat & Paige _v._ Gill 1902 C. A., April 25 25, 26, 109 Monaghan _v._ Taylor 1886 2 T. L. R., 685 141 Moore _v._ Clarke 1842 9 M. and W., 692 157, 183 Morang _v._ Publishers 1900 32 Out. Rep., 393 53, 78, 188 Morison _v._ Moat 1851 9 Hare, 241 219 Morocco Bound Syndicate -- [1895], 1 Ch., 534 193 _v._ Harris Morris _v._ Ashbee 1868 L. R., 7 Eq., 34 16, =17=, 18, 87, 105, =107=, 108, 119 Morris _v._ Colman 1812 18 Ves., 437 228 Morris _v._ Kelly 1820 1 Jac. and W., 481 79, =121= Morris _v._ Wright 1870 L. R., 5 Ch., 279 16, =108=, 109 Morton _v._ Copeland 1855 16 C. B., 517 78, 118, 143 Motte _v._ Falkner 1735 4 Burr., 2326 6 Moul _v._ Groenings -- [1891], 2 Q. B., 443 202, 203 Muddock _v._ Blackwood -- [1898], 1 Ch., 58 84, 86, 92 Munshi _v._ Mirza 1890 Ind. L. R., 14 116 Bomb., 586 Murray _v._ Benbow 1822 Jac., 474 _n_ 46 Murray _v._ Bogue 1852 1 Drew, 353 =26=, 51, 99, 102, 117 Murray _v._ Elliston 1822 5 B. and A., 804 114, 115, 121 Murray _v._ Heath 1831 1 B. and A., 804 159, 180 Murray _v._ MacFarquhar 1785 Mor. Dic., 8309 110 NEALE _v._ Harmer 1897 13 T. L. R., 209 =99= Newman _v._ Pinto 1887 57 L. T. (N. S.), 31 46 Newton _v._ Cowie 1827 4 Bing., 234 34, 148, 151, 152, 157 Nicholls _v._ Parker 1901 17 T. L. R., 482 180, 185 Nicol _v._ Stockdale 1785 3 Swanst., 687 59 Nicols _v._ Pitman 1884 26 Ch. D., 374 11, 37, 38, 97, =110=, 118, 222, 224 Nottage _v._ Jackson 1883 11 Q. B. D., 627 52, 57, 62, 65, 171, 174 Novello _v._ Sudlow 1852 12 C. B., 177 86, 97, 102 Novello _v._ James 1854 24 L. J. Ch., 111 87 OLIVER _v._ Oliver 1861 11 C. B. (N. S.), 225 139 Ollendorff _v._ Black 1850 4 De G. and Sm., 209 42 Osborne _v._ Donaldson 1765 2 Eden, 327 6 Oxford and Cambridge _v._ 1899 43 Sol. J., 570 102, 113 Gill Oxford and Cambridge _v._ 1802 6 Ves., 689 59 Richardson PAGE _v._ Townsend 1832 5 Sim., 395 150 Page _v._ Wisden 1869 20 L. T., 435 =31=, 51, 96 Palin _v._ Gathercole 1844 1 Coll., 565 225, 226 Parsons _v._ Chapman 1831 5 C. and P., 33 140, 141 Paton _v._ Duncan 1828 3 C. and P., 336 228 Perceval _v._ Phipps 1813 2 V. and B., 19 225, 226 Petty _v._ Taylor -- [1897], 1 Ch., 465 52, 63, 171, 176 Piddington _v._ Philip 1893 14 N. S. W. Rep., 95 Eq., 159 Pike _v._ Nicholas 1869 L. R., 5 Ch., 251 86, 95, =98=, 104, 105, =108= Pitman _v._ Hine 1884 1 T. L. R. 119 Pitt Pitts _v._ George -- [1896], 2 Ch., 866 201 Planché _v._ Braham 1837 4 Bing. N. C., 17 138 Planché _v._ Colburn 1831 5 C. and P., 58 228 Platt _v._ Button 1815 19 Ves., 447 87, 119 Platt _v._ Walter 1867 17 L. T. (N. S.), 11, 67, 206, 157 229 Pollard _v._ Photo Co. 1888 4 Ch. D., 345 172, 180, 220 Pope _v._ Curl 1741 2 Atk., 342 220, 225 Poplett _v._ Stockdale 1825 Ry. and M., 337 231 Poulton, _ex parte_ 1884 53 L. J. Q. B., 320 54 Powell _v._ Head 1879 12 Ch. D., 686 65, 79, 142 Power _v._ Walker 1814 4 Camp., 8 76, 77, 134, 164 Price's Patent Candles 1858 4 K. and J., 727 86 _v._ Bauwen Priestley's Case -- 2 Mer., 437 46 Primrose Press _v._ 1886 2 T. L. R., 404 48 Knowles Prince Albert _v._ Strange 1849 2 De G. and Sm., 37, 90, 117, 652 152, 172, =216=, 219, 220, 221, 223 Prowett _v._ Mortimer 1856 2 Jur. (N. S.), 414 48, =209=, 210 QUEENSBERRY _v._ Shebbeare 1758 2 Eden, 329 79, 220 READE _v._ Bentley 1857 3 K. and J., 271 81, 227, 228, 229 " " -- 4 K. and J., 656 Reade _v._ Conquest 1861 9 C. B. (N. S.), 755 114, 120, 123, 206 " " 1862 11 C. B. (N. S.), 46, 102, 139 479 Reade _v._ Lacy 1861 1 J. and H., 524 101, 102 Reeve _v._ Gibson -- [1891], 1 Q. B., 144, 156 652 Reg _v._ Closs 1857 6 W. R., 109 180 Reichardt _v._ Sapte -- [1893], 2 Q. B., =128=, 139 308 Reid _v._ Maxwell 1886 2 T. L. R., 790 41 Reuter's Telegram Co. 1874 43 L. J. Ch., 661 =216= _v._ Byron Richardson _v._ Gilbert 1851 1 Sim. (N. S.), 336 71 Rippon _v._ Norton 1839 2 Beav., 63 81 Robb _v._ Green 1895 2 Q. B., 315 =218= Roberts _v._ Bignell 1887 3 T. L. R., 552 =124=, 142 Robinson _v._ Wilkins 1805 8 Ves., 224 _n_ 87 Rock _v._ Lazarus 1872 L. R., 15 Eq., 104 52, 102, 152 Rooney _v._ Kelly 1861 14 Ir. C. L. R., 90, 229 158 Routledge _v._ Low 1868 L. R., 3 H. L, 100 40, =43=, 44, 56 Roworth _v._ Wilkes 1807 1 Camp., 94 34, 47, 97, 100, 110, 112, 151, 158 Rundell _v._ Murray 1821 Jac., 311 =24=, 87, 119, 164, 267 Russell _v._ Briant 1849 8 C. B., 836 140 Russell _v._ Smith 1848 12 Q. B., 217 47, =123=, 125, 126, 131. 133, 134, 136, 137, 140 SAUNDERS _v._ Smith 1838 3 My. and C., 711 =28=, 87, =111=, 119 Saunders _v._ Will -- [1892], 2 Q. B., 18 144 Sayre _v._ Moore 1785 1 East, 361 _n_ 104, 112 Schauer _v._ Field -- [1893], 1 Ch., 35 203 Schlesinger _v._ Bedford 1890 63 L. T. (N. S.), 120 762 Schlesinger _v._ Turner 1890 63 L. T. (N. S.), 120 764 Schove _v._ Schmincké 1886 33 Ch. D., 546 48, 208 Scott _v._ Stanford 1867 L. R., 3 Eq., 718 20, =62=, 99, 101, =107=, 113 Seeley _v._ Fisher 1841 11 Sim., 581 213 Shackell _v._ Rosier 1836 2 Bing., N. C., 634 229 Shelley _v._ Bethell 1883 12 Q. B. D., 11 136 Shepherd _v._ Conquest 1856 17 C. B., 427 =64=, 67, 77, 80, 134 Sims _v._ Marryat 1851 17 Q. B., 281 79 Smiles _v._ Belford 1876 1 Tupp. App., 436 189 Smith _v._ Chatto 1874 31 L. T. (N. S.), 112 775 Smith _v._ Johnson 1863 4 Gif., 632 72 Southern _v._ Bailes 1894 38 Sol. J., 681 11, =24= Southey _v._ Sherwood 1817 2 Meriv., 435 87, 119, 223 Spiers _v._ Brown 1858 31 L. T. (O. S.), =25=, 101, 116 16 Spottiswoode _v._ Clarke 1846 2 Phillips, 154 211 Stannard _v._ Harrison 1871 24 L. T. (N. S.), 62, 90, 148, 570 153 Stannard _v._ Lee 1871 L. R., 6 Ch., 346 15, 47, 148, 149 Stevens _v._ Benning 1855 6 De G. M. and G., 83, 227 223 Stevens _v._ Bradbury 1854 1 K. and J., 168 81 Stevens _v._ Brett 1864 10 L. T. (N. S.), 94 231 Stevens _v._ Wildy 1850 19 L. J. Ch., 190 78 Stewart _v._ Black 1846 9 D., 1026 92 Stiff _v._ Cassell 1856 2 Jur. (N. S.), 348 228 Stockdale _v._ Onwhyn 1826 5 B. and C., 173 46 Storace _v._ Longman 1788 2 Camp., 262 11, 75 Strahan _v._ Graham 1867 16 L. T. (N. S.), 87 79, 118 Strong _v._ Worskett 1896 12 T. L. R., 532 =35= Stubbs _v._ Howard 1895 11 T. L. R., 507 =68= Sweet _v._ Benning 1855 16 C. B., 459 12, 28, =69=, 73, 93, 97, =111= Sweet _v._ Cater 1841 11 Sim., 572 79, 80, 82, 83 Sweet _v._ Lee 1841 3 Man. and G., 452 230 Sweet _v._ Maughan 1840 11 Sim., 51 =28=, 86, 94 Sweet _v._ Shaw 1839 3 Jur., 217 =28=, =76=, 79, 111 TALBOT _v._ Judges 1887 3 T. L. R., 398 48, =208= Taylor _v._ Bayne 1776 Mor. Dic., 8308 16 Taylor _v._ Neville 1878 26 W. R., 299 80, 82 Taylor _v._ Pillow 1869 L. R., 7 Eq., 418 79 Thomas _v._ Turner 1886 33 Ch. D., 292 27, 51 Thombleson _v._ Black 1837 1 Jur., 198 79, 228 Thompson _v._ Stanhope 1774 Amb., 737 225, 226 Thompson _v._ Symonds 1792 5 T. R., 41 151, 152, 154 Tinsley _v._ Lacey 1863 1 H. and M., 747 88, 98, 114, 116, 120, 123 Tipping _v._ Clarke 1843 2 Hare, 383 =218= Tonson _v._ Collins 1760 1 W. Bl., 301 6, 206 Tonson _v._ Walker 1752 3 Swanst., 672 6, 12, 26, 115, 221 Toole _v._ Young 1874 L. R., 9 Q. B., 523 114, 120, 122, 123, =126= Trade Auxiliary _v._ 1887 4 T. L. R., 130 71 Jackson Trade Auxiliary _v._ 1889 40 Ch. D., 425 11, =21=, Middlesborough =48=, 52,67, =69=, 71, 72, 80, 82, 89, 99, 100 Tree _v._ Bowkett 1895 74 L. T. (N. S.),77 26, 64, 78, 80, 82 Troitzsch _v._ Rees 1887 3 T. L. R., 773 176 Trusler _v._ Murray 1789 1 East, 363 _n_ Tuck _v._ Canton 1882 51 L. j. Q. B., 82, 177 363 Tuck _v._ Continental 1887 3 T. L. R., 826 172 Tuck _v._ Priester 1887 19 Q. B. D., 629 172, 179, 180, 220 Turner _v._ Robinson 1860 10 Ir. Ch. R., 510 37, 39, 162, 169, 172, 184 " " 1860 10 Ir. Ch. R., 121 162, 169, 172, 184 WALCOT _v._ Walker 1802 7 Ves., 1 46 Walford _v._ Johnston 1846 20 D., 1160 20 Walker, _ex parte_ 1869 See Graves Wall _v._ Taylor 1883 11 Q. B. D., 102 95, =124=, 131, 136, 143 Wallerstein _v._ Herbert 1867 16 L. T., 453 63 Walter _v._ Emmott 1885 54 L. J. Ch., 1059 207, =212= Walter _v._ Howe 1881 17 Ch. D., 708 11, 48, =70= Walter _v._ Lane -- [1900], A. C, 539 13, 15, =29=, 30, 31, 37, 62, =65=, 109, 139, 238 Walter _v._ Steinkopff -- [1892], 3 Ch., 489 95, =103= Walthoe _v._ Walker 1736 4 Burr., 2326 6 Ward _v._ Beeton 1874 L. R., 19 Eq., 207 46, 207, 213, 229 Warne _v._ Lawrence 1886 34 W. R., 452 47 Warne _v._ Routledge 1874 L. R., 18 Eq., 497 83, 228 Warne _v._ Seebohm 1888 39 Ch. D., 73 90, 97, 113, =114=, 120, 123 Webb _v._ Rose 1732 Amb., 694 =23=, 220 Weekes _v._ Williamson 1886 12 Vict. L. R., 483 104 Weldon _v._ Dicks 1878 10 Ch. D., 247 52, 53, 92, 119, 207 West _v._ Francis 1822 5 B. and A., 737 152, 156, 157, 172, 183, 184 White _v._ Geroch 1819 2 B. and A., 298 11, 12, 36, 38, 97 Whittingham _v._ Wooler 1817 2 Swanst., 428 112 Whitwood _v._ Hardman -- [1891], 2 Ch., 416 227 Wilkins _v._ Aikin 1810 17 Ves., 422 104, 105, 109, 112 Willis _v._ Curtois 1838 1 Beav., 189 83 Wilson _v._ Lake 1895 1 Vict., L. R., Eq., 104 127 Wood _v._ Boosey 1868 L. R., 3 Q. B., 223 113, 134 " " 1867 L. R., 2 Q. B., 340 26, 51, 78, 130 Wood _v._ Chart 1870 L. R., 10 Eq., 193 203, 204 Wooderson _v._ Tuck 1887 4 T. L. R., 57 174,175 Wright _v._ Goodlake 1865 3 H. and C, 540 94 Wright _v._ Tallis 1845 1 C. B., 893 46 Wyatt _v._ Barnard 1814 3 V. and B., 77 15, =21=, 25, 102, 117 YOUNG Duchess, _in re_ 1891 8 T. L. R., 41 54 CASES DECIDED IN THE UNITED STATES AMBERG File _v._ Shea 1897 53 U. S. App., 449 =242= American Trotting _v._ 1895 70 Fed. Rep., 237 239, 267 Gocher Aronson _v._ 1886 28 Fed. Rep., 75 240, 241, 263, Fleckenstein 270, 275, 297 Atwill _v._ Ferrett 1846 2 Blatchf., 39 270, 271, 290 BACKERS _v._ Gould 1849 7 How., 798 290 Baker _v._ Selden 1879 101 U. S. Rep., 99 237, 238, 239, =242= Baker _v._ Taylor 1848 2 Blatchf., 82 251, =257=, 261, 262 Banks _v._ M'Divitt 1875 13 Blatchf., 163 241, =258=, 278, 281, 282 Banks _v._ Manchester 1888 128 U. S. Rep., 244 241, 251, 272, 296 Bartlett _v._ Crittenden 1847 4 M'Lean, 301 262, 263, 299 Belford _v._ Scribner 1892 144 U. S. Rep., 488 253, 289, 291 Bennett _v._ Boston 1900 101 Fed Rep., 445 288 Bennett _v. Carr_ 1899 96 Fed. Rep., 213 253 Binns _v._ Woodruff 1821 4 Wash. C. Ct., 48 245 Black _v._ Allen 1890 42 Fed. Rep., 618 260, 262, 273, 291 " " 1893 56 Fed. Rep., 764 241, 244, =252=, 253, 270, 271, 274, 292 Black _v._ Ehrich 1891 44 Fed. Rep., 793 298 Bleistein _v._ Donaldson 1899 98 Fed. Rep., 608 246 Blume _v._ Spear 1887 30 Fed. Rep., 629 253, 281 Blunt _v._ Patten 1828 2 Paine, 397 262, 278 Bolles _v._ Outing 1899 175 U. S. Rep., 262 245, =256=, 257 " " -- 77 Fed. Rep., 966 290 Boucicault _v._ Fox 1862 5 Blatchf., 87 241, 263, 271, 296 Boucicault _v._ Hart 1875 13 Blatchf., 47 251, 260, 263, 296 Boucicault _v._ Wood 1867 2 Biss., 34 249, 260, 264, 293, 296 Brady _v._ Daly 1899 175 U. S. Rep., 148 287, 292 " " 1897 83 Fed. Rep., 1007 277, 280 Brightley _v._ Littleton 1888 37 Fed. Rep., 103 236, =237=, 239, 241, 242, 243, 283 Broder _v._ Zeno 1898 88 Fed. Rep., 74 266, 281 Bullinger _v._ MacKay 1879 15 Blatchf., 550 236, 239, 243, 270, 278, 283 Burnell _v._ Chown 1895 69 Fed. Rep., 993 282 Burrow-Giles _v._ Sarony 1884 111 U. S. Rep., 53 245, 256, 270 CALLAGHAN _v._ Myers 1888 128 U. S. Rep., 617 240, 251, 253, =257=, 267, 273, 289 Carlisle _v._ Colusa 1893 57 Fed. Rep., 979 239 County Carte _v._ Bailey 1874 64 Maine, 458 270, 273, 274, 299 Carte _v._ Duff 1885 25 Fed. Rep., 183 279, 287, 296 Carte _v._ Evans 1886 27 Fed. Rep., 861 =241=, 251, =252=, 273, 274 Carte _v._ Ford 1883 15 Fed. Rep., 439 296 Chapman _v._ Ferry 1883 18 Fed. Rep., 539 251, 253 " " 1882 12 Fed. Rep., 693 289, 290 Chase _v._ Sanborne 1874 4 Cliff., 306 241, 251 Chicago Music _v._ 1884 19 Fed. Rep., 758 251 Butler Child _v._ 1901 110 Fed. Rep., 527 290 _New York Times_ Chils _v._ Gronland 1890 41 Fed. Rep., 145 239, 282 Clayton _v._ Stone 1828 2 Paine, 382 236, =237=, 239, 242 Clemens _v._ Belford 1883 14 Fed. Rep., 728 297 Coffeen _v._ Brunton 1849 4 M'Lean, 516 243, =246= Collender _v._ Griffith 1878 11 Blatchf., 212 246 Colliery Engineer Co. _v._ 1899 94 Fed. Rep., 152 271, =291= United Correspondence Schools Connecticut _v._ Gould 1888 34 Fed. Rep., 319 240 Corbett _v._ Purday 1897 80 Fed. Rep., 901 244 Courier _v._ Donaldson 1900 104 Fed. Rep., 993 246 Cowen _v._ Banks 1862 24 How. Pr., 72 240, 267 Crowe _v._ Aiken 1870 2 Biss., 208 263, 264, 299 DALY _v._ Brady 1889 39 Fed. Rep., 265 =252=, 290 " " 1895 69 Fed. Rep., 285 292 Daly _v._ Palmer 1868 6 Blatchf., 256 281, 286, 291 Daly _v._ Walrath 1899 40 App. Div. N. Y., 264, 296, 299 220 Daly _v._ Webster 1892 1 U. S. App., 573 240, =252=, 281, 287 Davidson _v._ Wheelock 1886 27 Fed. Rep., 61 241 Davies _v._ Vories -- 42 S. W., 707 274 Dewight _v._ Appleton 1842 1 N. Y. Leg. Obs., 259 195 Dielman _v._ White 1900 102 Fed. Rep., 892 271 Doan _v._ American Book 1901 105 Fed. Rep., 772 298 Co. Dodd _v._ Smith 1891 144 Pa., 340 298 D'Ole _v._ Kansas City 1899 94 Fed. Rep., 840 262 Star Co. Donnelley _v._ Ivers 1882 20 Blatchf., 381 =252= Drummond _v._ Altemus 1894 60 Fed. Rep., 338 297, 298 Drury _v._ Ewing 1862 1 Bond., 541 =242=, 283 EGBERT _v._ Greenberg 1900 100 Fed. Rep., 447 239, 267 Ehret _v._ Pierce 1880 18 Blatchf., 302 245, 246, 282 Elizabeth _v._ 1877 97 U. S. Rep., 126 289 Pavement Co. Emerson _v._ Davis 1845 3 Story, 768 241, 243, 278, 279, 281 Estes _v._ Leslie 1886 27 Fed. Rep., 22 297 Estes _v._ Williams 1884 21 Fed. Rep., 189 296, 297 Ewer _v._ Coxe 1824 4 Wash. C. C., 487 251, 296 FALK _v._ Brett 1891 48 Fed. Rep., 678 245 Falk _v._ Curtis 1901 107 Fed. Rep., 126 290, 291 " " 1900 100 Fed. Rep., 77 290 " " 1900 98 Fed. Rep., 989 290 Falk _v._ Donaldson 1893 57 Fed. Rep., 32 245, 253, 276, 280, 281, 283 Falk _v._ Gast 1893 54 Fed. Rep., 890 259, 262, 289 " " 1891 48 Fed. Rep., 262 245, 251, 259 Falk _v._ Heffron 1893 56 Fed. Rep., 299 290 Falk _v._ Howell 1888 37 Fed. Rep., 202 276, 281, 283 Falk _v._ Schumacher 1891 48 Fed. Rep., 222 255, 293 Farmer _v._ Culvert 1872 5 Am. L. T. R., 168 280, 282 Farmer _v._ Elstner 1888 33 Fed. Rep., 494 279, 289 Fishel _v._ Lueckel 1892 53 Fed. Rep., 499 276, 277, 280, 291 Folsom _v._ Marsh 1841 2 Story, 100 =243=, 277, 279, 280, 284 French _v._ Kreling 1894 63 Fed. Rep., 621 262 French _v._ Maguire 1878 55 How. (N. Y.) Pr., 263, 299 471 GILMORE _v._ Anderson 1890 42 Fed. Rep., 267 289 " " 1889 38 Fed. Rep., 846 274, 278, 283 Goldmark _v._ Kreling 1888 35 Fed. Rep., 661 281 " " 1885 25 Fed. Rep., 349 299 Gottsberger _v._ Aldine 1887 33 Fed. Rep., 381 261 Gould _v._ Banks 1832 8 Wend., 562 240, 274 Gray _v._ Russell 1839 1 Story, 11 240, 241, 243, 270, 278, 279, 284 Greene _v._ Bishop 1858 1 Cliff., 186 243, 269, 279 HARPER _v._ Holman 1897 84 Fed. Rep., 224 291, 296 Harper _v._ Shoppell 1886 23 Blatchf., 431 276 Hefel _v._ Whitely 1893 54 Fed. Rep., 179 256 Hegemen _v._ Springer 1901 110 Fed. Rep., 374 290 Heine _v._ Appleton 1853 4 Blatchf. C. C., 12 240, 269, 271, =272=, 293 Henderson _v._ Tompkins 1894 60 Fed. Rep., 758 240 Higgins _v._ Keuffel 1891 140 U. S. Rep., 428 246 Hill _v._ Epley 1858 31 Penn., 331 293 Hoertel _v._ Raphael Tuck 1899 94 Fed. Rep., 844 294 Holmes _v._ Donohue 1896 77 Fed. Rep., 179 263 Holmes _v._ Hurst 1898 174 U. S. Rep., 82 263, 296 Howell _v._ Miller 1898 91 Fed. Rep., 129 241, 280, 282 Hubbard _v._ Thompson 1882 14 Fed. Rep., 689 291 _ILLUSTRATED American_ 1892 Cited, U. S., 594 =256= _v. New York Press_ Isaacs _v._ Daly 1875 39 N. Y., 511 244, 245 JACKSON _v._ Walkie 1886 29 Fed. Rep., 15 255 Jewellers' Mercantile 1898 155 N. Y., 241 251, =260=, 261, Agency _v._ Jewellers' 262, 263, 296 Publishing Co. Jewellers' Mercantile 1896 84 Hun., 12 251, 260 Agency _v._ Jewellers' Publishing Co. Johnson _v._ Donaldson 1880 3 Fed. Rep., 22 243, 278, 290 Johnson _v._ Klopsch 1890 88 Fed. Rep., 692 293 Jollie _v._ Jacques 1850 1 Blatchf., 618 241, 244, 251, 281 Jones _v._ Thoms 1843 1 N. Y. Leg. Obs. 299 408 KEENE _v._ Clarke 1867 5 Rob. (NY.), 38 263, 293 Keene _v._ Kimball 1860 16 Gray, 549 263, 266, 299 Keene _v._ Wheatley 1860 4 Phil. (Pa.), 157 262, 263, 274, 284 Kennedy _v._ McTammany 1888 33 Fed. Rep., 584 276 Kiernan _v._ Manhattan 1876 50 How. Pr., 194 262 Kipling _v._ Fenno 1900 106 Fed. Rep., 692 298 Koppel _v._ Downing -- 24 Wash. L. R., 342 269 LADD _v._ Oxnard 1896 75 Fed. Rep., 703 237, 239, 260, 261, 263, 277, 283 Larrowe _v._ O'Loughlin 1898 88 Fed. Rep., 896 263 Lawrence _v._ Dana 1869 4 Cliff, 1 241, 242, 251, 258, 273, 269, 271, 277, 279, 280, 284, 285, 289, 293 List Publishing Co. _v._ 1887 30 Fed. Rep., 772 281, 282 Keller Little _v._ Gould 1851 2 Blatchf., 165 269, 271, 272, 273, 274, 291 Little _v._ Hall 1855 18 How., 165 240, 299 Littleton _v._ Oliver 1894 62 Fed. Rep., 597 254 MACKAYE _v._ Mallory 1882 12 Fed. Rep., 328 273 McDonald _v._ Hearst 1899 95 Fed. Rep., 656 292 M'Lean _v._ Flemming 1877 96 U. S. Rep., 245 277, 296 Maloney _v._ Foote 1900 101 Fed. Rep., 264 277 Martinetti _v._ Maguire 1867 1 Abb. U. S., 356 266 Mead _v._ West 1896 80 Fed. Rep., 380 241, 278, 281, 282, 283 Menendez _v._ Holt 1888 128 U. S. Rep., 514 293 Merrell _v._ Tice 1881 104 U. S. Rep., 557 251, 253, 296 Merriam _v._ Famous Shoe 1891 47 Fed. Rep., 411 297, 298 Co. Merriam _v._ Holloway 1890 43 Fed. Rep., 450 297 Merriam _v._ Texas 1892 49 Fed. Rep, 944 298 Siftings Mifflin _v._ Dutton 1901 107 Fed. Rep., 708 =256=, 263 Millet _v._ Snowden 1848 1 West L. J., 240 277 Morrison _v._ Pettibone 1897 87 Fed. Rep., 330 276, 277, =280= Mott _v._ Clow 1897 53 U. S. App., 461 237, =238=, 239, 242, 246 Munro _v._ Smith 1890 42 Fed. Rep., 266 282 Mutual Advertising Co. 1896 76 Fed. Rep., 961 240, 271, 272, 282 _v._ Refo NASH _v._ Lathrop 1886 142 Mass., 29 240 OERTEL _v._ Wood 1870 40 How. Pr., 10 299 Oertel _v._ Jacoby 1872 44 How., 179 299 Osgood _v._ Allen 1872 1 Holmes, 185 244 Osgood _v._ Aloe 1897 83 Fed. Rep., 470 251, 253, =256=, 260 PAIGE _v._ Banks 1871 7 Blatchf., 152 268 Palmer _v._ De Witt 1872 47 N. Y., 532 263, 264, 296, 299, 300 Parker _v._ Hulme 1849 1 West L. J., 240 277 Parkinson _v._ Lascelle 1875 3 Sawyer, 330 251 Parton _v._ Prang 1872 3 Cliff, 537 273, 296, 299, 300 Perris _v._ Hexamer 1878 99 V. S. Rep., 674 280 Pierce _v._ Werckmeister. 1896 72 Fed. Rep., 57 259, 263 Pierpont _v._ Fowle 1846 2 Wood, and Min., 23 267, 271 Press Publishing Co. _v._ 1896 73 Fed. Rep., 196 262, 270, 271, Munroe 274 300 Pulte _v._ Derby 1852 5 M'L., 328 260, 273 REED _v._ Carusi 1845 72 Fed. Cas., No. 241, 290 11, 642; 8 L. R., 411 Reed _v._ Holliday 1884 19 Fed. Rep., 325 277, 279, 291 Rees _v._ Peltzer 1874 75 Ill., 475 263, 296, 299 Richardson _v._ Miller 1877 3 L. and Eq. Rep. 246, 267 (Am.), 614 262, 294 Rigney _v._ Dalton 1896 77 Fed. Rep., 176 Rigney _v._ Raphael Tuck 1896 77 Fed. Rep., 173 294 Roberts _v._ Myers 1860 13 L. R. Mass., 398 244, 270 Rogers _v._ Jewett 1858 12 L. R., 339 291 Rosenbach _v._ Dreyfuss 1880 2 Fed. Rep., 217 247, 294 Ross _v._ Raphael Tuck 1898 91 Fed. Rep., 128 294 SANBORN _v._ Dakin 1889 39 Fed. Rep., 266 280, 282 Sarony _v._ Ehrich 1886 28 Fed. Rep., 79 291 Schreiber _v._ Thornton 1883 17 Fed. Rep., 603 245 Schumacher _v._ Wogram 1888 35 Fed. Rep., 210 =246=, 257 Schumacher _v._ Schwencke 1885 25 Fed. Rep., 466 271, 272 " " -- 23 Blatchf., 373 246 " " 1887 30 Fed. Rep., 690 277 Scoville _v._ Toland 1848 6 West Law, J., 84 243 Scribner _v._ Allen & Co. 1892 49 Fed. Rep., 854 251, 256, 293 Serrana _v._ Jefferson 1888 33 Fed. Rep., 347 282 Shook _v._ Daly 1875 49 How. Pr., 366 266 Shook _v._ Rankin 1875 6 Biss., 477 241, 263 Snow _v._ Laird 1900 98 Fed. Rep., 813 242, 245 Snow _v._ Mast 1895 65 Fed. Rep., 995 257 Social Register 1894 64 Fed. Rep., 270 296 Association _v._ Howard Springer _v._ Falk 1894 20 U. S. App., 296 259, 276, 280, 283, 290, 292 Stephens _v._ Cady 1852 14 How., 528 273, 275 Stevens _v._ Gladding 1854 17 How., 447 273, 275, 289 Story _v._ Holcombe 1847 4 M'L., 306 277, 279, 283, 284, 285 Stowe _v._ Thomas 1853 2 Wall. Jr., 547 284, 286 Struve _v._ Schwedler 1857 4 Blatchf., 23 251 Stuart _v._ Smith 1895 68 Fed. Rep., 189 291 TAFT _v._ Stephens 1889 39 Fed. Rep., 781 294 Taylor _v._ Gilman 1885 24 Fed. Rep., 632 288, 290, 292 Thomas _v._ Lennox 1883 14 Fed. Rep., 849 =241=, 263, =279= Thompson _v._ Hubbard 1888 131 U. S. Rep., 123 251,259 Thornton _v._ Schreiber 1887 124 U. S. Rep., 612 290 " " -- 8 Sup. Ct., 618 288, 290, 292 Tompkins _v._ Halleck 1882 133 Mass., 32 263, 299 Trow _v._ Boyd 1899 97 Fed. Rep., 586 291, 292 WALL _v._ Gordon 1872 12 Abb. Pr. N. S. 262 (N. Y.), 349 Webb _v._ Powers 1847 2 Woodb. and M., 497 273, 277, 282, 283 Werckmeister _v._ Springer 1894 63 Fed. Rep., 808 256, 263, 273, 274 West _v._ Lawyers 1896 51 U. S. App., 216 240, 251, 278 " " 1894 64 Fed. Rep., 360 282, 289, 296 Wheaton _v._ Peters 1834 8 Pet., 591 237, 240, 251, 268, 296, 299 Wheeler _v._ Cobbey 1895 70 Fed. Rep., 487 292 Williams _v._ Smythe 1901 110 Fed. Rep., 961 291 Wood _v._ Abbott 1866 5 Blatchf. C. C., 325 245 YUENGLING _v._ Schile 1882 12 Fed. Rep., 97 246, 247, 248, 269, 273 PART I THE LAW OF COPYRIGHT IN THE UNITED KINGDOM AND THE DOMINIONS OF THE CROWN. CHAPTER I INTRODUCTORY The history of copyright has been exhaustively dealt with by Mr. Copinger, Mr. Scrutton, and Mr. Drone in their respective treatises on copyright law. I feel that I can add nothing useful to this branch of the subject, and as a detailed account of the evolution of the law of literary and artistic property is of little value to the practitioner except as academic knowledge, I propose merely to pass briefly in review the various epochs through which the author and his publisher have passed in their struggle to obtain from the public what they consider to be the just and adequate remuneration for their labours. For a complete historical introduction to the law of copyright I cannot do better than refer to Mr. Birrell's delightful lectures.[1] [Sidenote: The Royal Prerogative.] The first record which we have of any monopoly in the reproduction of literary work is in the exercise of the alleged prerogative of the Crown to control the printing-press. No book whatsoever was allowed to be printed without a licence or grant of monopoly from the Crown. One of the principal objects in the exercise of this prerogative was the prevention of the dissemination of religious doctrines contrary to the accepted faith. [Sidenote: The Company of Stationers.] [Sidenote: The Star Chamber.] Henry VIII. created the Company of Stationers to supervise and control the publication of books. This company made various rules and regulations as to the printing of books, and from them licences could be obtained by an author to print his copy. The Stationers' Company was first incorporated in the reign of Philip and Mary in 1556. The Crown enforced its prerogative and the rules of the Stationers' Company by means of the Court of Star Chamber, which from time to time passed various decrees, and punished offenders by fine and imprisonment. [Sidenote: The germ of Copyright.] [Sidenote: Licences.] By this means the Crown until 1640 exercised an unlimited jurisdiction over the press. In this there was no recognition of a right of property in the author of a work, but merely an enforcement of the royal prerogative to control the press. Incidentally, however, a kind of property sprang up, since the Stationers' Company in granting licences recognised the right of the author or his assignee to his copy. Licences were granted to those who showed that they had a right in the manuscript, and all others were prohibited from infringing the monopoly. An entry in the records of the Stationers' Company in 1562, for instance, enacts "That if it be found any other has a right to any of the copies, then the licence touching such of the copies so belonging to another shall be void." [Sidenote: The Long Parliament.] When the Star Chamber was abolished in 1640 the two Houses made an ordinance prohibiting printing unless the book was first licensed and entered in the register of the Stationers' Company, and further prohibiting printing without the consent of the owner. [Sidenote: Licensing Statute.] At the Restoration a licensing statute[2] was passed similarly prohibiting printing without licence and without the consent of the owner. The statute finally expired in 1694. On the expiry of the licensing statute, authors and publishers thought that all protection for literary work was gone, and made strenuous efforts for new legislation. Bills were brought into Parliament in 1703 and 1706, and finally in 1709 the copyright statute of Anne became law. [Sidenote: 8 Anne, c. 19. The beginning of Statutory Copyright.] The Act of Anne created for the first time a statutory property in books. The author of any book and his assignee or assigns were given the sole liberty of printing and reprinting such book for the term of fourteen years from publication "and no longer," and if at the end of that period the author was still living, then such right returned to the author for another term of fourteen years. The Act provided that an offender should forfeit pirated copies and sheets to the proprietor of the copyright, who was enjoined to "forthwith damask and make waste paper of them." The Act further imposed a penalty of one penny for every sheet found in the offender's possession, one half of the penalties to go to the Crown and the other half to any person who should sue for the same. The Act made registration in the Register Book of the Company of Stationers before publication a condition precedent to an action for the infringement of any book. A provision was made in this Act for an adjustment of the price of books by complaint to the Archbishop of Canterbury, the Lord Chancellor and others, if booksellers or printers set too high a price upon their publications. Provision was also made for the delivery of nine copies at the warehouse of the Stationers' Company for the use of various libraries. [Sidenote: 41 Geo. III., ch. 107.] The Act of Anne was amended in some particulars in 1801 by 41 Geo. III. c. 107. This Act gave the proprietor of the copyright an action of damages against an offender as well as providing forfeiture and penalties. [Sidenote: 54 Geo. III., ch. 156.] The Act of Anne was again amended in 1814 by 54 Geo. III. c. 156. This latter statute extended the period of copyright to twenty-eight years certain, and the residue of the author's life thereafter. [Sidenote: Copyright at Common Law.] [Sidenote: Injunctions in Chancery.] After the passing of the statute of Anne those booksellers who were in the habit of purchasing and publishing authors' manuscripts were not satisfied with the limited protection accorded to them by that Act. They discovered, by the aid no doubt of legal advice, that a further protection might be secured by setting up a common law right of literary property which would ensure not merely a paltry term of twenty-eight years, but a perpetual monopoly. The result of this discovery led to half a century of litigation between the authors' booksellers and those other smaller booksellers who contended that they might without licence print those books in which the statutory copyright had expired. At first the authors' men were successful, and from 1735 there is a series of cases in Chancery in which a common law right in published books was undoubtedly recognised and a preliminary injunction granted, notwithstanding that the period of protection given by 8 Anne, c. 19, had expired.[3] [Sidenote: _Tonson_ v. _Collins_.] [Sidenote: A collusive action.] These injunctions appear to have been acquiesced in, and the cases did not proceed to hearing. In 1760, in the case of _Tonson_ v. _Collins_,[4] the great question of common law right was argued at law before Lord Mansfield, C. J. The action was in respect of the _Spectator_, the statutory copyright in which had expired. It was twice argued before Lord Mansfield, who then ordered that it should stand over for further argument before all the twelve judges. No judgment was ever given in the case. Before it could be argued before the whole Court, information reached the judges that the action was collusive, brought for the purpose of obtaining a precedent to support the contention of the authors' men. The Court refused to proceed further with the cause. [Sidenote: _Osborne_ v. _Donaldson_.] [Sidenote: _Millar_ v. _Taylor_.] [Sidenote: _Donaldson_ v. _Beckett_.] It was not long, however, until the question was again raised. In 1765 Messrs. Osborne & Millar, assignees of the copyright in Thomson's "Seasons," filed their Bills in Chancery against Donaldson, an Edinburgh bookseller, who had, without their authority, reprinted the book after the statutory copyright had expired.[5] A preliminary injunction was obtained, but subsequently dissolved. Lord Chancellor Northington said it was a point of so much difficulty and consequence that he should not determine it at the hearing, but should send it to law for the opinion of the judges. The question therefore again came to law, and, in _Millar_ v. _Taylor_,[6] was argued at great length before Lord Mansfield and Justices Aston, Willis and Yates. The authors' men were victorious. The Court decided (Yates, J., dissenting) that there was copyright at common law, and that the period of protection thereunder was not cut down by the statute of Anne. This great victory, however, afforded but a short-lived triumph to literary men. In 1774, in _Donaldson_ v. _Beckett_,[7] the matter came before the House of Lords on appeal from an order in Chancery, with the result that the decision in _Millar_ v. _Taylor_[8] was overruled. In this case all the judges were consulted. Eleven consulted judges gave their opinion. The questions put to the judges, and the answers given by them, are as follows: [Sidenote: Opinions of the judges.] 1. Whether at common law an author of any book or literary composition had the sole right of first printing and publishing the same for sale, and might bring an action against any person who printed, published, and sold the same without his consent? Eight answered Yes. One answered No. Two answered That an action would only lie if the MS. were taken by fraud or violence. 2. If the author had such right originally did the law take it away upon his printing or publishing such book or literary composition, and might any person afterward reprint and sell for his own benefit such book or literary composition against the will of the author? Seven answered No. Four answered Yes. 3. If such action would have lain at common law, is it taken away by the statute of 8th Anne? And is an author by the said statute precluded from every remedy except on the foundation of the said statute and on the terms and conditions prescribed thereby? Six answered Yes. Five answered No. 4. Whether the author of any literary composition and his assigns had the sole right of printing and publishing the same in perpetuity by the common law? Seven answered Yes. Four answered No. 5. Whether this right is in any way impeached or taken away by the statute of 8th Anne? Six answered Yes. Five answered No. [Sidenote: Decision of the House of Lords.] [Sidenote: Defeat of the Authors' booksellers.] The House of Lords on a division, which included several lay members of the House, decided by 22 to 11 against the contention that the common law right survived the statute of Anne and was unrestricted by it. So the authors and their champions the booksellers were finally defeated, and had to remain satisfied with the term of protection afforded to them by statute. [Sidenote: Relief for the Universities.] The Universities obtained from Parliament statutory relief against the decision in _Donaldson_ v. _Beckett_. In 1775, the Act of 15 Geo. III. c. 53 was passed giving them a perpetual copyright in all books which might be bequeathed to them. This right they still retain. [Sidenote: 5 & 6 Vict. c. 45.] In 1842 the present literary Copyright Act was passed and the statute of Anne and the two amending statutes of Geo. III. repealed. The principal reform is the extension of the term of protection to a period of forty-two years certain, or for the author's life and seven years if that should prove longer. Perhaps the other most important change (it cannot decently be called a reform) is the reduction of registration at Stationers' Hall to a mere useless and troublesome technicality. Instead of being as formerly a condition precedent to protection, and therefore a useful index from which one could ascertain whether a book was copyright or not, it is now made merely a condition precedent to action, and registration can be effected the same day as that on which a writ is issued. [Sidenote: Engravings.] Meanwhile the engravers as well as the authors had been working for the proper protection of their art. In 1734 they first obtained a statute which, together with the amending statutes passed in 1766, 1776, and 1836 respectively, still contains the law of copyright in engravings, prints, etchings, and similar productions. [Sidenote: Sculpture.] In 1798 the sculptors obtained an Act. This was repealed by another Act obtained in 1813. This latter Act still contains the whole law as to copyright in sculpture. [Sidenote: Dramatic Work.] [Sidenote: Musical Work.] In 1833 authors of dramatic work obtained from Parliament an exclusive right to perform their plays whether published or unpublished. By the Literary Copyright Act, 1842, the provisions of that Act are made applicable to performing rights in dramatic work, and performing rights are still regulated by both these Acts, which together contain the law on this subject. The Literary Copyright Act, 1842, also applied the provisions of both these Acts to performing rights in musical compositions hitherto unprotected in this respect. As regards musical composition, the law is amended by two subsequent Acts which must be read with the two older Acts. [Sidenote: Lectures.] In 1835 an Act was passed for the protection of copyright in lectures. This Act, although still in force, has become a dead letter since the requisite notice to two Justices of the Peace is troublesome, and lectures receive full protection from copying by common law and under the Literary Copyright Act, 1842. The Lectures Act never purported to give anything in the nature of a performing or lecturing right, but merely a protection from unauthorised reproduction in print. [Sidenote: Paintings, Drawings, and Photographs.] The artists were the last to obtain protection for their work. It was not until 1862 that an Act was passed giving statutory protection to paintings, drawings, and photographs. This Act contains the present law on the "Fine Arts." [Sidenote: International Acts.] [Sidenote: The Berne Convention.] [Sidenote: The Paris Convention.] From 1844 onwards there is a series of Acts known as the International Copyright Acts which extend the protection of the copyright law to works published in certain foreign countries. The last and principal international copyright Act is the International Copyright Act, 1886. That Act was passed in view of the Berne Convention of 1887 which was then in contemplation. The Berne Convention is an international copyright agreement whereby those states which are signatory to it agree that, subject to its terms, a work first published in any one of those states shall have copyright in all the others. The Berne Convention is now amended by the Paris Convention, 1898, and read together they form the present international agreement. [Sidenote: Colonial Acts.] There are several statutes dealing with the colonies dating from 1847. CHAPTER II WHAT BOOKS ARE PROTECTED The following books are protected by statute throughout the British Dominions:[9] 1. Every original book:[10] 2. First published within the British Dominions:[11] 3. [The author of which is a British subject or resident within the British Dominions at the time of first publication:[12]] 4. Which is innocent:[13] 5. And has been registered before action:[14] 6. For 42 years, or the author's life and 7 years, whichever period is the longer.[15] SECTION I.--WHAT IS AN ORIGINAL BOOK. =Definition of a Book.=--"Book" is defined by 5 & 6 Vict. c. 45, sec. 2, "to mean and include every volume, part or division of a volume, pamphlet, sheet of letterpress, sheet of music, map, chart, or plan separately published." As an exhaustive definition this is of little value. It only indicates what the outward visible form of the "book" must be, and gives no indication of the nature or quality of the literary matter which it must contain. Even as a guide to the form it is defective, since it is only a definition by example and not exhaustively descriptive. In the absence of an accurate statutory definition of a "book," the Courts have given a very wide interpretation to the term, and both as to the form and the matter have strained the ordinary dictionary meaning of the word to the uttermost. In the light of the decided cases a "book" might be defined as _original literary matter in such tangible form as readily conveys ideas or information to the mind of a reader_. =Essential Elements of a Book.=--There are three essential elements which must be found in every book, viz.: I. A certain physical form. II. Literary matter. III. Originality. I. _Physical Form._--The form of the book need not necessarily constitute what in common parlance is known as a book or volume. Thus a single sheet of music[16] or a printed leaflet such as an application form[17] are both books within the meaning of the Copyright Acts. In one case[18] it was held that a newspaper was not a book, but that decision was not followed,[19] and there can now be no doubt that a newspaper comes within the definition of a book as a sheet of letterpress.[20] The form must be adapted for conveniently conveying to the mind of a reader the intellectual matter which the book contains. It will not be sufficient that it can possibly be used for conveying intellectual matter to the mind, it must be conveniently adapted for that purpose. Thus music in the form of a perforated scroll for use in an æolian or pianola is not a "book,"[21] for although it can be deciphered and read by the eye no one in his senses would use it instead of an ordinary sheet of music. On the other hand literary matter may nevertheless be in "book" form although it requires a special training to decipher it. For instance a story written in shorthand characters is in book form,[22] and no doubt also a story impressed in raised characters for the blind.[23] The substance on which the literary matter is depicted and the manner of depicting it are probably immaterial; but presumably a "book" must be at least _ejusdem generis_ as an ordinary printed volume or leaflet. It must be "something in the nature of a book."[24] Thus although copies in ordinary manuscript[25] or even engraved on thin slips of ivory would be in "book" form, an epitaph on a tombstone probably would not. The meaning of the words "separately published" in section 2 is by no means clear. They do not mean that the matter in which copyright is claimed must be issued physically separate from any non-copyright literary matter. In the statute of Anne the words "separately published" are not used in the definition of a book, but it was nevertheless argued that a "book" must be entirely the original work of the author and not bound up with other matter. In _Cary_ v. _Longman_ Lord Kenyon rejected such an argument. In giving judgment he said: "The courts of justice have long been labouring under an error if an author have no copyright in any part of a work unless he have an exclusive right to the whole book."[26] Under the statute of Victoria parts of a book bound up with non-copyright matter have frequently been protected; notes to non-copyright works,[27] illustrations to non-copyright works,[28] a small portion of a serial story,[29] a small part of a time table,[30] have all been protected. Clearly therefore a person may have copyright in a book although he has not copyright in every part of it.[31] _In Johnson_ v. _Newnes_[32] Romer, J., takes the view that "separately" published means clearly distinguishable. He says: "Now in my opinion if you find in a volume separate parts, and distinguished or perfectly distinguishable from the other parts, and the volume is published, each part that is separate and clearly distinguished in the volume itself is separately published within the meaning of section 2." If we accept this as correct we exclude the case of a revised edition of an old work, the corrections and additions to which forming the new work are not clearly distinguishable from the old. I am inclined to think that the real explanation and meaning of "separately published" is that it does not apply to "volume, part, or division of a volume" at all, but only to "sheet of letterpress, sheet of music, map, chart, or plan" which are to be protected, even although they are "separately published," _i. e._ not bound up into a volume. It was no doubt inserted as declaratory of the case law under the statute of Anne, which laid down that a single printed sheet was a "book" within the meaning of the Act. II. _Literary Matter._--No literary merit or great labour is required to be shown. Lord Halsbury, L. C., in _Walter_ v. _Lane_,[33] referring to the verbatim reports of Lord Rosebery's speeches which were the subject-matter of that action, said: "Although I think in these compositions (_i. e._ the work of the stenographer) there is literary merit and intellectual labour, yet the statute seems to me to require neither--nor originality either in thought or language ... the right in my view is given by the statute to the first producer of a book, whether that book be wise or foolish, accurate or inaccurate, of literary merit, or of no merit whatever."[34] In many of the cases great stress was laid in argument at the bar on the preamble of the Copyright Act, 5 & 6 Vict. c. 45. The preamble runs as follows: "Whereas it is expedient to amend the law relating to copyright, and to afford greater encouragement to the production of literary works of lasting benefit to the world...." From this it is argued that the Act intends to protect only those works which are likely to prove a substantial addition to the world's literature. Jessel, M. R., in his judgment in _Maple_ v. _Junior Army and Navy Stores_,[35] points out the fallacy of this argument: "The Act does not say that it is expedient to afford greater encouragement to the production of literary works of lasting benefit to the world, and to amend the law of copyright relating thereto, but that it is expedient to amend the law of copyright generally, merely adding the principal reason for doing so. There is therefore nothing in the preamble to cut down the enacting part, even if the enacting part had not been clear."[36] Road-books,[37] directories,[38] tradesmen's catalogues,[39] mercantile statistics,[40] telegraph codes,[41] time tables,[42] verbatim reports of speeches[43] are all books within the meaning of the Act. It is quite immaterial for what purpose the matter was composed or published. Personal correspondence,[44] advertisements,[45] and a mining report[46] are all subjects of copyright if published. There must be some composition or arrangement of words, figures, sentences, or paragraphs which by itself will convey to the mind of the reader some intelligible proposition.[47] There cannot be copyright in a single word,[48] even although it expresses a man's opinion: there is no composition or arrangement. Neither can there be copyright in a pattern sleeve[49] or the face of a barometer,[50] because both are really instruments to be used in conjunction with something else, and although there may be words and sentences on them, by themselves they convey no intelligible proposition to the reader. Probably a drunken scrawl, absolutely unintelligible, would not be protected. A jury having found that such a document was not a literary composition, the Court of Appeal refused to interfere with their verdict.[51] The illustrations in a book are protected as part of the book,[52] and a number of drawings bound up together without any letterpress would be protected as a book,[53] compliance with the provisions of the artistic Copyright Acts being in such a case unnecessary; but a single drawing or engraving separately issued can only be protected under the artistic Acts. A map, whether bound in a volume or separately issued, is a book within the meaning of the Literary Copyright Act, and will be protected thereunder.[54] III. _Originality_ as an essential element of a book means that the composition in the "book" must not have been copied from some other literary composition in "book" form. Originality does not necessarily imply an original composition on the part of the author.[55] Copyright is given not necessarily to the first composer, but to the first producer in "book" form of a literary composition.[56] Thus a book would be an original book if the literary matter contained therein were taken by the author verbatim from the oral utterances of a public speaker,[57] or probably if copied from some ancient monument or mural writing. It would not, however, be original if the author had merely transcribed the literary matter from some public manuscripts, even although difficult of access.[58] Again, originality does not necessarily imply novelty. Another book exactly the same in every respect, word for word, may have been previously published, and yet a later book will be original if derived from common sources, and not copied from the earlier book. Thus two mathematicians may have independently made the same calculations,[59] two travellers may have made a chart of the same island or district,[60] or two reporters may have taken shorthand reports of the same speech.[61] In each case there would be independent copyright,[62] and the later book, even although published ten years after the first, would be original. Composition may consist in composition in the ordinary sense of piecing together words, figures, sentences, and paragraphs, in order to convey certain intellectual ideas, or it may consist in the arrangement of material, as in the case of directories, lists of statistics, &c. Sometimes part may be copied and part may be original, as in the case of new editions,[63] translations,[64] abridgments,[65] selections from non-copyright authors,[66] precedents of conveyancing, &c.[67] The new matter only is the subject of copyright. [Sidenote: Road Books.] =Examples of what are Books.=--Road-books[68] were among the first works in the protection of which by the Courts it was recognised that copyright did not necessarily depend on the evidence of any high mental qualities in the composition. In 1786 an injunction was granted to restrain the piracy of "Paterson's Road-Book."[69] Lord Chancellor Loughborough in his judgment said that a book in order to acquire copyright did not require to be an operation of the mind like the "Essay on Human Understanding." There might be copyright even although the subject-matter lay _in medio_, so that every man with eyes could trace it, and the whole merit of the work depended upon the accuracy of the observation. In 1776 the Court of Session in Scotland protected a "Traveller's Pocket-Book," which contained nothing but a mere list of stages and their distances.[70] The compiler of such a work may arrive at the same, or nearly the same, result as some other compiler working over the same country, but if each has made his own compilation, "counting the milestones for himself,"[71] he will have copyright and can prevent any one else from infringing such copyright. [Sidenote: Directories.] Directories[72] soon followed road-books in their claim for protection. Lord Chancellor Erskine in 1806 hesitated somewhat, "thinking it dangerous to carry this doctrine of copyright too far," but ultimately decided that an East India calendar or directory[73] containing the names and appointments on the Indian establishment, obtained with considerable labour and expense from the repositories in India House, was the subject of copyright. This decision was followed by Lord Chancellor Eldon in 1809 in the case of "A Court Calendar."[74] In 1861 a street directory of Birmingham was protected,[75] and in 1866 "Kelly's Post Office London Directory."[76] In this last-mentioned case it was suggested in defence that the various residents had given their names for public use, and that therefore any one could copy them; this contention, however, was rejected, and it was held that the information contained in a directory was similar to that in a road-book or map; it was open to all mankind, but that he who collected and described it was entitled to prevent any one else from taking the results of his labours. In _Morris_ v. _Ashbee_,[77] a trade directory, called "The Business Directory of London," was protected. This work contained the names and occupations of merchants and traders carrying on business in or about London. Those traders who paid the proprietor of the directory one shilling annually were entitled to have their names printed in capital letters, and a further payment entitled them to "extra lines" descriptive of their vocations. The defendants took from this work the names in capital letters and the "extra lines," and contended that they were entitled to do so; but it was held that the payment by the several persons whose names were inserted had not the effect of making the names and descriptions when inserted common property, and that as the plaintiff had incurred the labour and expense of getting the necessary information and arranging it, he was entitled to protection. [Sidenote: Trade Directory.] [Sidenote: Sheet of Advertisements.] In _Lamb_ v. _Evans_[78] the defendants had copied extensively from a trade directory. The directory consisted of a list of tradesmen in various localities. In some cases their names and addresses only were entered, and in others more elaborate advertisements containing descriptions of articles in which the advertiser dealt. The entries in the directory were classified under headings, giving short descriptions of the particular trades; each separate heading was arranged so that the proper catch-words occurred first in alphabetical order, and each heading was repeated in three other languages after the English heading. The Court of Appeal held that although the plaintiffs had no copyright in each individual entry, they had copyright at least in the headings. They were the result of literary labour both as regards the composition of the headings themselves and their collocation and concatenation in the book.[79] Their Lordships were also of opinion, although they said it was unnecessary to decide the question, that there was copyright in the mass of advertisements as collected and arranged. Lindley, L. J., said: "I do not see myself the difficulty in the publishers having a copyright in a sheet of advertisements. I do see a difficulty in his having a copyright in one advertisement, because, as Mr. Justice Chitty pointed out, that might prevent the advertiser from republishing his advertisements in another paper, which is absurd. But to say that it follows from that that the proprietor, say of the _Times_, has no copyright in a sheet of advertisements so that he cannot restrain anybody from copying that sheet appears to me a very different proposition."[80] [Sidenote: Catalogues.] Tradesmen's catalogues, consisting of lists descriptive or otherwise of the articles in which they deal, have been often attacked as being devoid of literary merit. In _Hotten_ v. _Arthur_[81] the plaintiff's copyright in a descriptive catalogue of old books which he had in stock was challenged. This catalogue was not a mere list of the books by name, but contained short notices of the contents and general nature of the various volumes. Page Wood, V. C., found no difficulty in deciding that such a catalogue was the subject of copyright, notwithstanding that the catalogues were for the purpose of advertising the plaintiff's stock-in-trade, and were not themselves offered for sale. In _Cobbett_ v. _Woodward_[82] the doctrine laid down by Page Wood, V. C., received a check. In that case the plaintiff had published a catalogue containing numerous engravings and illustrations of designs and articles of furniture which were sold by his firm. Lord Romilly, M. R., refused to grant an injunction against a rival tradesman who, in a similar publication, appropriated at least fifty of the plaintiff's illustrations, and in his judgment he said: [Sidenote: Advertisements.] "But at the last it always comes round to this, that there is no copyright in an advertisement. If you copy the advertisement of another, you do him no wrong, unless in doing so you lead the public to believe that you sell the articles of the person whose advertisement you copy."[83] The next case in which this question came before the Courts was _Grace_ v. _Newman_.[84] The book infringed was a volume containing lithographic sketches of monumental designs, and a little letterpress. The sole object of the book was to serve as an advertisement in the plaintiff's business of "Cemetery Stone and Marble Mason." Hall, V. C., granted an injunction, evading _Cobbett_ v. _Woodward_[85] and following _Hotten_ v. _Arthur_.[86] In 1882 _Cobbett_ v. _Woodward_[87] was expressly overruled in the Court of Appeal in the case of _Maple & Co._ v. _Junior Army and Navy Stores_.[88] The plaintiffs published an illustrated catalogue consisting almost entirely of engravings of furniture with short descriptions and prices. The catalogue was prepared by selecting articles of furniture which were drawn by artists in their employment and then engraved. The Court of Appeal sustaining the opinion of Hall, V. C., in the Court below, held that the catalogue was the subject of copyright as a book. Jessel, M. R., said: "The case which has done all the mischief is _Cobbett_ v. _Woodward_.[89]... I think that is not law. I am not aware that the use to which a proprietor puts his book makes any difference in his rights. His copyright gives him the exclusive right of multiplying copies, and he may use them as he pleases. I think, therefore, that _Cobbett_ v. _Woodward_[90] will not bear legal examination."[91] [Sidenote: Alphabetical Catalogue of Tradesmen's Goods.] In _Collis_ v. _Cater_[92] North, J., protected a catalogue of medicinal articles which the plaintiff kept for sale. The articles were arranged by their common names in alphabetical order under various headings and sub-headings. The learned judge strongly negatived the contention that a tradesman's catalogue would only be protected when, as in _Hotten_ v. _Arthur_,[93] some amount of skill or literary merit was shown. He said: "A distinction is made between copyright in a large catalogue by a clever author which gives a great deal of information, and is interesting to persons who read it, and a catalogue like the plaintiffs, which is nothing whatever but a simple list of certain articles described by their common names, which every one is entitled to use with respect to them with the addition of the prices at which they are sold.... In one way or another a man engaged in preparing a catalogue of this sort has incurred labour in its preparation, or it may be expense and trouble in its preparation, and has done it for the advantage of having his own catalogue.... I cannot see any distinction between this and the publication of a directory. It seems to me to be exactly _in pari materia_." [Sidenote: Telegraph Codes.] A list of telegraphic code words carefully selected so that, in their transmission by the Morse system of dots and dashes, they would not be liable to be mistaken or misspelt was admitted to be a copyright work in _Ager_ v. _P. & O. Steam Navigation Co._[94] The same book, "The Standard Telegram Code," was again protected in _Ager_ v. _Collingridge_.[95] [Sidenote: Shipping Statistics.] [Sidenote: Mineral Statistics.] Lists of statistics compiled from various sources of information are well recognised as original books. "The Clyde Bill of Entry and Shipping List," containing a compilation of statistics collected from the official records and documents in the Custom houses, was protected in Scotland in 1846[96] and again in 1858.[97] The "Mineral Statistics of the United Kingdom of Great Britain and Ireland" was protected in England in 1867.[98] It consisted of an annual statement of returns in the City of London coal market, showing the quantity of coal imported into London from the various collieries, and was compiled by the clerk and registrar of the coal market from the day-books in the office. Page Wood, V. C., said: "A great deal of time and labour must have been spent in this compilation, more, indeed, than in the case of a directory or guide, and there can be no doubt that he is entitled to be protected in the fruits of his labour."[99] [Sidenote: Lists taken from public documents.] [Sidenote: List of Bills of Sale.] Compilations made from public documents and records are protected in so far as there is selection or arrangement. A mere verbatim copy of a public document would not be protected.[100] In _Trade Auxiliary Co._ v. _Middlesborough_,[101] "Stubbs' Weekly Gazette" was protected from infringement. The gazette contained a list of bills of sale registered under the Bills of Sale Act and of deeds of arrangement registered under the Deeds of Arrangement Act. The particulars of each bill of sale had been taken from the official records, not merely from the indexes on the official register but from the instruments themselves, for the inspection of each of which a charge of 1s. or 2s. 6d. is made. The same and other similar lists were also protected in _Cate_ v. _Devon_.[102] [Sidenote: Specifications of Patents.] In _Wyatt_ v._ Barnard_[103] Lord Chancellor Eldon refused protection to a copy of specifications of patents taken from the patent office. If this decision meant that a selection, arrangement, or abridgment of the specifications in the patent office would not be protected, it cannot be considered sound law. [Sidenote: List of Foxhounds.] In _Cox_ v. _Land and Water_[104] Malins, V. C., although he refused to grant an injunction on the grounds of its probable inefficacy, expressed a strong opinion that a list of packs of foxhounds, with the hunting days of each pack and their respective masters and huntsmen, was the subject of property. The information contained in the list was obtained by issuing circulars requesting the masters of the hunt to fill up the required information. The Vice-Chancellor in his judgment said: "It is clear that in this case the getting of the names of masters of hunts, the number of hounds, the huntsmen and whips, and so forth is information open to all those who seek to obtain it; but it is information they must get at their own expense, as the result of their own labour, and they are not to be entitled to the results of the labours undergone by others." [Sidenote: Time Tables.] One of the leading cases in this branch of copyright law is _Leslie_ v. _Young_,[105] a Scotch appeal case. The pursuer's book consisted of a monthly penny railway time table, published in Perth. It was compiled from the various railway companies' time tables. Some of these were taken verbatim and some were abridged by the smaller stations being omitted, and to the whole was added a list of convenient circular tours around Perth compiled by the pursuer. The defender in compiling a rival time table, copied many of these tables and all of the circular tours from the pursuer's book, either literally or with colourable differences only. As regards the time tables the House of Lords sustained the judgment of the Inner House in refusing an interdict. The mere publication, they said, in any particular order of the time tables which are to be found in railway guides and the publications of the different railway companies, could not be claimed as a subject-matter of copyright. In dealing with the abridged time tables Lord Herschell, L. C., said: "Looking at these tables as a whole, and having regard to the fact that it is admitted that the defender's work is, as regards these tables, not by any means in all respects a copy of the pursuer's work, that it was not denied that there was a certain amount of original work done by them in compiling these tables, and that these are the differences which have been pointed out, I do not think that it can be said that as regards these tables there has been an appropriation by the defender of the pursuer's work such as to entitle the pursuer to complain and to obtain the interdict which he claims. The real truth is that although it is not to be disputed that there may be copyright in a compilation or abstract involving independent labour, yet when you come to such a subject-matter as that with which we are dealing, it ought to be clearly established that, looking at these tables as a whole, there has been a substantial appropriation by the one party of the independent labour of the other before any proceeding on the ground of copyright can be justified." As regards the circular tours the House of Lords reversed the judgment of the Court of Session and granted an interdict. The Lord Chancellor said: "It appears to me the only part of the work which can be said to indicate any considerable amount of independent labour and be entitled to be regarded as an original work.... It seems to me that this was a compilation containing an abridgment of information of a very useful character, and such as was likely to be taken advantage of by those who were travelling in the neighbourhood of Perth." [Sidenote: Tables of Calculation.] Mathematical calculations are undoubtedly subjects of copyright. In _Baily_ v. _Taylor_[106] Sir John Leach, M. R., evidently assumed that they were, although in that case he refused an injunction on the grounds that a very small part had been copied, that what was copied could have been calculated again in a few hours, and that there was unreasonable delay in bringing the action. In _M'Neill_ v. _Williams_[107] protection was sought for "Comprehensive Tables for the Calculation of Earthwork as connected with Railways," &c. Knight Bruce, V. C., refused an interim injunction, but he did not suggest that the calculations were not the subject of copyright. [Sidenote: Forms and Precedents.] [Sidenote: Conveyancing Precedents.] Forms and Precedents and similar works are made and published for the very purpose that they should be bought and used in business or other transactions. To this extent copying is of course no infringement, but they will be protected from any copying other than that which is impliedly permitted by their publication. In _Webb_ v. _Rose_[108] precedents of conveyancing were stolen from a barrister's chambers and printed against his will. The Court had not the least hesitation in restraining the defendant from printing and publishing them. In the Scotch case of _Alexander_ v. _Mackenzie_[109] the claim of "Styles and Precedents of Conveyancing" to protection under the Copyright Acts was recognised by the Inner House. The forms in question were drawn up from general directions contained in the "Heritable Securities and Infeftments Acts," and it was contended that, as all who followed these directions must arrive at almost identically the same result, there could be no copyright in a precedent so produced. The Court was unanimously of opinion that although such work did not require the exercise of original or creative genius, yet it implied industry and knowledge, and was undoubtedly the subject of copyright. [Sidenote: Application Form.] In _Southern_ v. _Bailes_[110] a form of application by intending students to a "Lessons by Correspondence Department" was protected by Chitty, J. The learned judge granted an injunction against copying the plaintiff's form, but thought it would be dangerous to extend the injunction in such a matter to colourable imitations, as there was a great deal in the form any one could have put together for himself. [Sidenote: Selections and Extracts from Non-copyright Works.] [Sidenote: Collection of Cookery Recipes.] [Sidenote: Topographical Dictionary.] [Sidenote: Child's A B C.] [Sidenote: "Guide to Science."] It was very early recognised that the skill and labour of selecting and arranging extracts from previously published books was sufficient to entitle the compiler to copyright in the new work thereby produced.[111] Copyright can thus be obtained without the composition of a single sentence. There is composition, but the composition is of new arrangement and not of new matter. In _Rundell_ v. _Murray_[112] Lord Chancellor Eldon expressed his opinion that a collection of cookery recipes would have entitled the plaintiff who collected them to copyright, even if she had merely embodied and arranged them in a book. If, however, she had only collected them and handed them over to the publishers, he did not think that would give her copyright. In _Lewis_ v. _Fullarton_[113] "The Topographical Dictionary of England," which consisted partly of compilations and selections from former works, was recognised as being the subject of copyright. In _Lennie_ v. _Pillans_[114] the Court of Session in Scotland were of opinion that "The Child's A B C," consisting in a great degree of extracts from and repetition of previous publications by other authors, was entitled to protection on account of the original arrangement, selection, abridgment, or amplification of such borrowed materials. In _Jarrold_ v. _Houlston_[115] Page Wood, V. C., granted an injunction against the piracy of Dr. Brewer's "Guide to Science." The book was intended for the instruction of tiros in science, and was composed largely from previous works, aided by notes taken from time to time of popular ideas concerning various scientific phenomena. The Vice-Chancellor said: "That an author has a copyright in a work of this description is beyond all doubt. If any one by pains and labour collects and reduces into the form of a systematic course of instruction those questions which he may find ordinary persons asking in reference to the common phenomena of life, with answers to these questions and explanations of these phenomena, whether such explanations and answers are furnished by his own recollection of his former general reading or out of works consulted by him for the express purpose, the reduction of questions so collected, with such answers under certain heads and in a scientific form, is amply sufficient to constitute an original work of which the copyright will be protected." [Sidenote: French Dictionary.] The same judge, in _Spiers_ v. _Brown_,[116] in considering an alleged infringement of "Spiers' School Dictionary," said: "In a large part of his work Dr. Spiers could have no copyright as to words and expressions, though he might have it as to new words introduced or new acceptations, or as to the order and arrangement by which he improved the particular work he had in hand." [Sidenote: Selections of Poetry.] In an Indian case Palgrave's "Golden Treasury of Songs and Lyrics" was protected. It consisted in a selection and arrangement of poems and fragments of poems from the non-copyright works of many poets. The defendant took the selected portions, rearranged them, and made a few additions. His book was condemned as an infringement.[117] [Sidenote: Abridgments.] Lawfully made abridgments are protected on account of the judgment which the abridger must exercise in order to do his work well.[118] [Sidenote: Translations.] Lawfully made translations are also protected as if they were original works.[119] The protection will only extend to the work of the translator. A translator by translating a non-copyright work acquires no exclusive right to translate. Others may do the same from the original non-copyright source. [Sidenote: Adaptations.] An author is entitled to copyright by reason of lawful adaptation of a book from one form to another; thus, if he dramatizes a novel, or by material alteration and rearrangement produces a new version of an old play.[120] The adaptation of music, for instance an opera score for the pianoforte,[121] or the rearrangement of an old tune,[122] is the subject of copyright. [Sidenote: New Editions and Notes.] New editions either of copyright or non-copyright works are protected as original books, but only to the extent to which they consist of original material in the way of notes to, or substantial revision and alteration of the old text. Lord Chancellor Hardwicke[123] granted an injunction against the piracy of a new edition of Milton's "Paradise Lost" containing original notes by Dr. Newton. In _Cary_ v. _Longman_[124] new material added to an old road-book was protected. In _Murray_ v. _Bogue_[125] in the case of a subsequent edition of a guide-book, Kindersley, V. C., said: "If a man prints a second edition, not being a mere reprint of the first edition, but containing considerable and material alterations and additions, _quoad_ those, it is a new work."[126] In _Cadell_ v. _Anderson_[127] the Court of Session in Scotland held that the pursuers had the sole right of printing and reprinting "Blackstone's Commentaries;" and as regards those editions in which there were corrections and continuations, their term of copyright began to run afresh with respect to such new material. In _Black_ v. _Murray & Son_[128] the notes in Lockhart's edition of Scott's "Border Minstrelsy" were protected, the copyright in the original edition of the "Border Minstrelsy" having expired. Lord President Inglis, in the course of a long and elaborate judgment, said: "Questions of great nicety and difficulty may arise as to how far a new edition of a work is a proper subject of copyright at all; but that must always depend upon circumstances. A new edition of a book may be a mere reprint of an old edition, and plainly that would not entitle the author to a new term of copyright running from the date of the new edition. On the other hand, the new edition of a book may be so enlarged and improved as to constitute in reality a new work, and that just as clearly will entitle the author to a copyright running from the date of the new edition.... That there may be copyright in the notes, even when the book is not under the protection of copyright, is quite a fixed principle in the law, and most desirably so. There is no doubt that the compilation of good notes to a standard work is a task worthy of the highest literary talents and reputation.... Of the 200 notes the defender's counsel tells us that 15 only consist of original matter, while the remaining 185 are quotations from other books and authors. Now this seemed to be considered to be a sort of disparagement of the value of the notes, in which I cannot at all agree.... The quotations are, in many places, most apposite, and highly illustrative of the text, and exceedingly interesting to the reader, and certainly the selection and application of such quotations from other books may exercise as high literary faculties as the composition of original matter." If a new edition is a mere reprint of what has been published in "book" form before, it is obvious that no new or independent copyright can be claimed in it.[129] So also if there are only slight corrections, verbal alterations, and the like. Lord Mackenzie, in the Scotch case of _Hedderwick_ v. _Griffin_,[130] said: "I doubt very much if there can be right of literary property in the exclusion from an edition of the works of any author of articles not truly written or published by that author, or in the correction of accidental errors, or in the mere order and titles of articles which seem to be all, or nearly all, that can be claimed by the pursuers in this case."[131] The publication of an old work with an index not previously published would undoubtedly be copyright as to the index.[132] In _Black_ v. _Murray_[133] Lord Deas was of opinion that the alteration of a single word in a poem was sufficient to give a new edition an independent copyright, inasmuch as the alteration was very important and entirely altered the meaning of the line in which it was used. The other judges, however, did not altogether concur in Lord Deas' opinion; and it would seem that his lordship stretched the law as to new editions too far. [Sidenote: Reports.] [Sidenote: Law Reports.] The question whether a verbatim report of oral proceedings is a "book" within the meaning of the Copyright Acts was long a moot question. That there might be copyright in law reports and similar matter, in so far as they consisted of a summary of the proceedings in the author's own language, was early recognised. In _Butterworth_ v. _Robinson_[134] the "Term Reports"; in _Sweet_ v. _Shaw_,[135] Meeson and Welsby's reports, and others; and in _Sweet_ v. _Maughan_[136] the reports in the "Jurist" were protected; but it does not appear in the reports of these cases whether any copyright was claimed in the verbatim reports of the judgment of the Court. In _Saunders_ v. _Smith_[137] Lord Cottenham, L. C., refused an injunction against "Smith's Leading Cases" on equitable grounds, but said he would not decide the legal question as to whether that publication infringed the copyright in the "Term Reports" and others. In _Sweet_ v. _Benning_[138] the defendants published a "Monthly Digest" into which were copied numerous head notes of cases taken bodily from the "Jurist." The Court held that these head notes were copyright, and that the defendant's work was an infringement. "The head note or the side or marginal note of a report is a thing upon which much skill and exercise of thought are required to express in clear and concise language the principle of law to be deduced from the decision to which it is prefixed, or the facts and circumstances which bring the case in hand within some principle or rule of law or of practice."[139] [Sidenote: Verbatim Reports.] So far, therefore, as appears from the reports of these cases our Courts had only recognised copyright in the matter of reports to the extent to which that matter was the composition of the author, only, in short, when it was a description in his own language of what had taken place. The American Courts had held[140] that there was no copyright in the verbatim report of a judgment of the Court, but their decisions were based to a large extent on the ground of public policy. The judgments of the Court, they said, were published to the whole of the people of the United States, and no individual could acquire a monopoly with respect to them. _Walter_ v. _Lane_[141] has to a large extent cleared up the doubtful state of our law as regards reports, but it cannot be said that it has done so entirely. _Walter_ v. _Lane_[142] decides that a reporter can have copyright in a verbatim report of the oral utterances of another from whom he derives no title. In that case certain reporters of the _Times_ were present at various meetings at which Lord Rosebery made speeches. These speeches were taken down in shorthand and appeared in the _Times_ the following morning, reproducing as nearly as possible verbatim the words which Lord Rosebery had spoken. Lane, a publisher, subsequently published a book entitled "Appreciations and Addresses: Lord Rosebery," and purporting to be a collection of some of Lord Rosebery's speeches. Five of the speeches in this book were taken from the reports in the _Times_, as was admitted by the defendant, substantially verbatim. The House of Lords reversing the judgment of the Court of Appeal and restoring the judgment of North, J., held that the reports in the _Times_ were copyright, and that the reporters' assignees, the proprietors of the _Times_, were the owners of the copyright. Lord Chancellor Halsbury in his judgment said: "My Lords, I should very much regret it if I were compelled to come to the conclusion that the state of the law permitted one man to make profit and to appropriate to himself the labour, skill, and capital of another. And it is not denied that in this case the defendant seeks to appropriate to himself what has been produced by the skill, labour, and capital of others. In the view I take of this case I think the law is strong enough to restrain what to my mind would be a grievous injustice.... The speeches and the sheets of letterpress in which they were contained were books first published in this country; and I confess, upon looking at the definition and the right conferred, I am wholly unable to discern why they are not protected by the statute from being pirated by unauthorised persons. The sole ground, as I understand the judgment of the Court of Appeal, is that in their judgment the producer of a written speech, unless he is the original speaker, cannot be an 'author' within the meaning of the Act. My Lords, it seems to me that this argument is based upon too narrow and misleading a use of the word 'author.'... The producer of this written composition is, to my mind, the person who is the author of the book within the meaning of the statute.... I do not find the word 'original' in the statute, or any word which imparts it as a condition precedent, or makes originality of thought or idea necessary to the right."[143] We must be careful not to carry the doctrine of _Walter_ v. _Lane_[144] further than the actual decision warrants. It should be noticed, for instance, that the essence of the case is that the reporter was entitled to copyright, because it was he who first reduced to "book" form the literary composition contained in Lord Rosebery's speeches. If, therefore, Lord Rosebery had, before delivering his speeches, done as some statesmen and many clergymen do, _i. e._, reduced them to writing, the reporter would probably not have had copyright, since his report would then have been a mere copy of the speaker's original manuscript, a very different thing from being the first manuscript.[145] Again, it must be noticed that Lord Rosebery claimed no proprietary right in his speeches. It was admitted by counsel that he had freely abandoned his words to the world so that any one might make of them what use he pleased. Lord Rosebery might have secured a right in his own speeches if he had cared to do so. He might have delivered them to a limited audience[146] under an implied contract that those who heard his speeches should make no other use of them except by listening to them and benefiting by the entertainment and general information conveyed. Possibly he might also have secured a statutory copyright in them as lectures by giving notice in writing two days before delivering the same to two justices living within four miles of the place of delivery.[147] If in either of these ways Lord Rosebery had secured a proprietary right for himself it is doubtful whether a reporter unauthorised by him could have acquired copyright in his report. The report would have been an infringement of Lord Rosebery's rights, but the reporter might nevertheless be held to have a copyright against the rest of the world. It should also be noticed in connexion with this case that it was expressly stated by the judges in the House of Lords that any number of reporters could make a report of the same speech, and each would have a separate copyright. In _Walter_ v. _Lane_[148] the defendant admitted that he took his book from the _Times'_ report. It is obvious, however, that if a speech were reported in, say, six newspapers, any one could reprint it, and by careful correction of the parts in which the reports varied baffle any one of the newspaper proprietors in an attempt to prove that the speech was taken from his newspaper. Another question with regard to verbatim reports, which is not necessarily covered by _Walter_ v. _Lane_,[149] is in reference to verbatim reports of judgments in the Courts. Will the American doctrine be adopted that it is against public policy that there should be any monopoly in them?[150] [Sidenote: Mechanical Devices.] [Sidenote: Cricket Scoring Card.] The law of copyright does not protect anything in the nature of a mechanical device, except in so far as apart from any mechanical application it conveys ideas or information to the person reading it. In _Page_ v. _Wisden_[151] it was claimed by the plaintiff that he had literary copyright in a cricket-scoring card, the only novelty in which was a line along which could be indicated "Runs at the fall of each wicket." Malins, V. C., held that such a thing was not a book within the Act, and characterised it as absurd to contend that a particular mode of ruling a book constituted an object for a copyright.[152] [Sidenote: Shadow Trick.] [Sidenote: Barometer Face.] In _Cable_ v. _Mark_,[153] Bacon, V. C., refused to protect under the Literary Act "The Christograph--the Christian's Puzzle: suitable for all sects and denominations." This consisted of an envelope on which the above title was inscribed. Inside the envelope was a card perforated in such a way that when held up in a strong light it threw upon the wall a shadow which was supposed to represent the picture "Ecce Homo." The Vice-Chancellor in his judgment described it as a mere child's trick and nothing else. The face of a barometer was held by Chitty, J., in _Davis_ v. _Comitti_[154] not to be a book. It consisted of a circular card on which were printed various words such as "set fair," "high winds," &c., and on which the hands of the barometer moved. The learned judge said: "Separated from the instrument it was not intended to have and has no use or meaning whatever. Regarded as a card apart from the instrument it not only foretells nothing, but tells nothing. By reading the printed matter on the card alone, no intelligible proposition is arrived at." [Sidenote: Sleeve Chart.] Protection was claimed in _Hollinrake_ v. _Truswell_[155] for a cardboard pattern sleeve called the "Cosmopolitan Sleeve Chart." It consisted of a piece of cardboard cut to suitable shape and size and marked with figures and directions, such as "measure round the thick part of the arm," and it was intended to be used for the purpose of measuring and cutting out sleeves. The Court of Appeal reversed the judgment of Wright, J., and dismissed the action. Lord Herschell said: "The object of the Copyright Act was to prevent any one publishing a copy of the particular form of expression in which an author conveyed ideas or information to the world. These may be retained by any one, although the book, map, or chart which embodied them has passed out of his possession. If he were to commit to memory the contents of the book or the information disclosed by the map or chart, he would be as much in possession of the author's ideas or information as if the book, map, or chart were physically in his hands. But this is not the case with the words or figures upon the sleeve chart. They are intended to be used, and can only be used in connection with that upon which they are inscribed.... I think it clear, therefore, that what the plaintiff has sought to protect under the Act for the protection of literary productions is not a literary production, but an apparatus for the use of which certain words and figures must necessarily be inscribed upon it."[156] [Sidenote: Railway Ticket.] In a Canadian case a railway ticket containing the names of stations on the line and dates so arranged that when punched it indicated where the holder was entitled to travel, was refused protection. It was said that without the application of the conductor's punch, the ticket was senseless and meaningless.[157] [Sidenote: Scroll for Mechanical Instrument and Directions thereon.] In _Boosey_ v. _Whight_[158] it was held that a sheet of music was not infringed by a perforated scroll for use in a mechanical instrument; and further, that the directions in the printed music, _e. g. pp., crescendo_, were not the subject of copyright apart from the printed sheet, and therefore might be taken and used in conjunction with the perforated scroll. It seems to follow that neither the perforated scroll nor the directions thereon would constitute a "book" within the meaning of the Act. [Sidenote: Sporting Tips.] _Chilton's Special Guide_ published weekly sporting information. Among other matter it contained their sporting prophet's "tips" for the big races in the ensuing week. This was contained in a list, thus: ONE HORSE SELECTIONS. _Tuesday_ Keelson. _Wednesday_ Priestholm. _Thursday_ Coelus. _Friday_ Dromonby. The Progress Printing and Publishing Company published daily at the various race meetings racing sheets with the day's "tips" from various sporting papers, thus: THE SPECIALS, ONE HORSE TRIALS. _The Jockey_ Rusina _Racing World_ Keelson _Gale's_ Keelson _Chilton_ Keelson. _Grant's Opinion_ Juda. _Turf Marvel_ Kenney. The Court of Appeal held[159] that there could be no copyright in the individual selections for each day, but suggested that there might be copyright in the list of selections for the week, and that it would be an infringement to take it bodily. Lindley, L. J., in giving judgment, said: "Unless you find the one horse selection and that block which is headed by the title 'One Horse Selections' in the shape in which the plaintiff has published it, I doubt whether you can bring it within literary composition at all. Perhaps the whole of that might be called literary composition; but there is no literary composition in the word 'Priestholm.'"[160] [Sidenote: Illustrations.] [Sidenote: To Non-copyright Letterpress.] Engravings, prints, designs, or other reproductions of artistic matter will be protected under the law of literary copyright either when published in the form of a volume or when published in connexion and together with letterpress. By this means compliance with the stringent requirements of the Acts relating to artistic copyright is avoided. The first case where an illustration was held to be part of a book, and therefore protected under 5 & 6 Vict. c. 45, was _Bogue_ v. _Houlston_.[161]. The plaintiff published some old non-copyright tales, including "Reynard the Fox," and illustrated them with original drawings of animals. These woodcuts were pirated by the defendants, and used as illustrations in their serial publication, "The Story-Book for Young People, by Aunt Mary." The plaintiff did not claim copyright in any letterpress.[162] The defendants maintained that the woodcuts not having been published so as to comply with the provisions of the Engravings Acts, could not be protected from piracy. It was held, however, that they were part of a book. Parker, V. C., in giving judgment, quoted the definition of a book from the Act 5 & 6 Vict. c. 45, and continued: "This definition does not extend to prints or designs separately published, but only to the prints and designs forming part of a book, and the book is not less a book because it contains prints or designs or other illustrations of the letterpress. This Act vested in the proprietor of such book duly registered the right to sue in respect of any invasion or infringement of the copyright of his book. It appears to me that a book must include every part of the book; it must include every print, design, or engraving which forms part of the book as well as the letterpress therein which is another part of it."[163] [Sidenote: No Letterpress.] [Sidenote: Christmas Card.] [Sidenote: Plate issued separately.] In _Maple & Co_. v. _Junior Army and Navy Stores_,[164] the engravings in an illustrated catalogue, containing almost no letterpress, were protected under 5 & 6 Vict. c. 45. "There may be such things," said Jessel, M. R., "as picture-books for those who cannot read letterpress."[165] In _Hildesheimer & Faulkner_ v. _Dunn & Co._,[166] protection was claimed for a Christmas card cut out and painted in the form of a lady's hand. It opened out book-wise, and inside were delineated the lines of life according to the rules of palmistry, and on one side there was an original verse. This work was registered both under 5 & 6 Vict. c. 45 as a book and 25 & 26 Vict. c. 68 as a painting. Kekewich, J., in granting an injunction against a piracy, said he would not decide whether the work was a picture or a book, but as it was well registered under both Acts, an action lay. In _Comyns_ v. _Hyde_,[167] a coloured plate representing an Orpington cock was issued with the weekly number of a serial publication called _The Feathered World_. The plate was not in any way physically connected with the rest of the publication, but it was illustrative of an article in the journal, and a copy was given to every purchaser. Stirling, J., held that it must be protected as part of the book. If a plate or picture has been previously published in separate form, without complying with the provisions of the Engravings Acts, it will not subsequently receive protection by reason of its incorporation into a volume.[168] In _Strong_ v. _Worskett_[169] a magazine was before publication advertised by means of illustrated posters. The same illustration as appeared on the posters was afterwards reproduced in the magazine. It was held that it could not be protected as part of the magazine. The result of these decisions appears to be that an artistic work will be protected under the Literary Copyright Act, 1842, if it is bound up with other artistic works in the form of a volume, or if it is published in connexion with letterpress. The picture on a Christmas card on which there are also verses, would, it is submitted, be protected as a book, and, it would seem, whether or not the verses were copyright, and whether or not (but this is more doubtful) the picture was in any way illustrative of the verses. It is also submitted that an engraving published in a magazine without any relation to the letterpress, except that of physical connexion, would be protected as part of the book; but an engraving or print which had neither any relation to the letterpress nor physical connexion would probably not be protected even although issued gratis with every copy of the magazine. It need hardly be said that anonymous works are entitled to copyright. The publication of a work without the author's name is not to be construed as an abandonment of the literary property.[170] [Sidenote: Maps.] Maps, charts, and plans are expressly included in the definition of a "book." If incorporated in a volume they will be protected with the rest of the volume under its general title; if published separately they will be protected as "books" by themselves. The meaning of "maps," &c., will be literally construed; but it must be something which in itself conveys information to the person studying it. Davey, L. J., in speaking of maps, said:[171] "I agree ... that a 'map' is not confined to what is popularly known as a map--viz. a geographical map; and that a 'chart' is not confined to what is popularly called a chart--viz. a map of a portion of the seas showing the rocks, soundings, and such-like information for the use of navigators.... There may, no doubt, be an anatomical and physiological plan showing the structure and distribution of the muscles and bones of the human arm, or any other part of the human frame, which would be protected by the Copyright Act." [Sidenote: Music.] The exclusive right of making copies of original music is expressly protected by the Act of 5 & 6 Vict. c. 45 under the definition of a book. Under the statute of Anne it was protected by case law, "book" being held to include a volume or sheet of music.[172] SECTION II.--PUBLICATION. Publication divests the author or proprietor of an unpublished work of his common law rights therein. After publication his right to protection depends solely upon the statute. Publication must be looked at from two points of view--divestitive, _i. e._ as taking away the author's common law right; and investitive, _i. e._ as clothing him with the statutory right. =Divestitive Publication.=--If a literary work is communicated to the public without restriction, the common law right of the author terminates. This may be done orally or by written or printed manuscript. Either kind of communication, however, may be so limited as not to amount to a publication. A drama or musical work is not published by being publicly performed in a theatre or concert room,[173] since the communication is limited to those who have paid their price for admission, and they are admitted under an implied contract that they will not make any use of what they hear except for their own entertainment and instruction. The same applies to lectures delivered at a University[174] or by a private lecturer.[175] The question as to when a public speaker or preacher publishes the speech or sermon which he delivers is one of extreme difficulty, and depends on the relation of the speaker to his audience.[176] If a literary composition is orally communicated in a place to which all have admission as of right, or to which all are admitted without distinction, and where there are no circumstances from which a contractual relationship between the speaker and his audience can be inferred, the matter so communicated will be abandoned to the public to make what use of it they please. Similarly communication by means of manuscript or print may be limited or unlimited. Private distribution of copies of a book is not publication, because the essence of publication is that the matter must be available to all comers and not only to a class;[177] but the issue of a book to subscribers only would be publication if the subscription list was open to the public at large, and even although the number of copies available was very small. In one case[178] the words of a song were held to be published by being printed on a music-hall programme and distributed in the streets as an advertisement. Exhibition in a public place without distribution of copies would undoubtedly be divestitive publication. Divestitive publication must be with the consent of the proprietor; an unlicensed publication would merely be an infringement of his rights. =Investitive Publication.=--Publication vests the statutory right of copyright, but a publication which divests the common law right does not necessarily invest the statutory right. An investitive publication is of necessity also a divestitive publication, but not _vice versâ_. The principal distinction is that an investitive publication must be a publication of a book, while a divestitive publication is a publication of the literary composition which is or may be contained in a book. Thus the delivery of a lecture does not vest copyright, although under certain circumstances it may divest the common law right. The book itself must be given to the public, and not merely the contents, in order to secure copyright. It has been suggested that a book will not be published within the meaning of the Copyright Act unless it is also printed. There is certainly some colour for this suggestion. The Act 5 & 6 Vict. c. 45 gives protection to all books which are "published" without any express restriction to printed books. It seems to be assumed, however, throughout the Act that a book when published must necessarily be in print. For instance, section 6 requires "That a printed copy ... shall be delivered at the British Museum." In section 11 again, where provision is made for registration, it is not contemplated that a book in which there is copyright could be in manuscript, although the section makes express provision for the registration of manuscript dramatic and musical pieces, in respect of performing right. There is no authority on this point. In _White_ v. _Geroch_[179] it was said that publication of a musical piece in manuscript vested the statutory copyright; but this was under the statute of Anne, which seems expressly to contemplate publication in manuscript which 5 & 6 Vict. certainly does not. In _Boucicault_ v. _Chatterton_[180] James, L. J., says: "a book is published by being printed and issued to the public;" but this was said only in illustration of the point he was then making, viz. that publication does not necessarily mean the same thing in dealing with copyright as it does in dealing with performing right. On the whole, although the point is extremely doubtful, I am of opinion that printing is not required. Suppose an illuminated hand-made book, fifty copies put on the market, is that to be denied copyright? If it is, the result seems to be that it is unprotected from piracy, since the common law right terminates with unconditional publication. Another point on publication has been raised but not decided, viz.: Must there be a distribution of copies to the public, or will it be sufficient if one or more copies are made accessible to the public; for instance, by deposit of a copy at the British Museum or in other public libraries. Sir James Stephen, in his Digest appended to the "Report of the Copyright Commission, 1878," Art. 4, says: "publication ... means in reference to books, publication for sale;" and James, L. J., as cited above, suggests that there must be an "issuing to the public." On the other hand, the disjunctive use of the terms "published" and "offered for sale " in section 6 of 5 & 6 Vict. c. 45 is rather in favour of the view that there can be investitive publication without "offering for sale." Analogy from other branches of the law is unreliable; the exhibition of a picture in a public gallery is publication of the picture,[181] but that is the only way in which a picture can be published. On the whole, I think that if the public have free and unrestricted access to a book there will be publication, even although they may not be able to procure copies for themselves. Something might depend on the rules of a library where the book was deposited. There is a common practice among publishers to accept as proof of first publication a receipt given on the sale of a single copy of the book. No doubt this is _primâ facie_ proof of publication, but the sale of a single copy does not necessarily imply publication, and it would be open to any one disputing the date of the publication to say that the sale was collusive, and that the book was not at that time, as it must be in order to constitute publication, offered to the public. It would be sufficient publication for the publisher to place copies, or even one copy of the book, in his window for sale. The record in his books should be sufficient evidence of the date if it is disputed. In a case[182] under the statute of Anne it was held that publication must be by or on behalf of the proprietor, or at least with the view of conferring copyright upon him. The publication in that case was made by an oral assignee to whom the author had purported to convey the exclusive right of publication in the United Kingdom. It was held that the assignee had no copyright because there was no written assignment, and that the author did not acquire copyright because the publication was not on his behalf. The result seems to be that the copyright was lost. If the principle is sound, which is extremely doubtful, it might be applied to the case of first publication by a licensee, unless it could be implied from the contract between the licensor and licensee that the licensee was not acting entirely on his own behalf, but also on behalf of his licensor to secure copyright. =First Publication within the British Dominions.=--Under the Act of 5 & 6 Vict. c. 45, it was held essential that first publication should be within the United Kingdom;[183] but since the International Act of 1886[184] first publication anywhere within the British dominions will equally secure copyright. If a book is published simultaneously within and without the dominions it is sufficient.[185] Publication a day later than publication abroad would probably lose the copyright; but if on the same day, even although an hour or two later, it would be deemed simultaneous. If a serial story in a periodical is being published simultaneously, say here and in the United States, some parts may have lost their copyright by too hasty publication in America, but this would not deprive the whole serial of copyright if the other parts were "first published" within the British dominions.[186] The date on the title-page of an American book has been held not to be conclusive evidence of the time of publication in the United States.[187] It is quite immaterial where the manuscript is written;[188] and probably equally immaterial where the book is printed. It has been suggested, however, that under 5 & 6 Vict. c. 45, printing within the United Kingdom was necessary, and that now since the "International Copyright Act, 1886," printing within the British dominions is a condition precedent to protection. I do not think the suggestion is of any weight. It is founded on two _obiter dicta_--one of Lord St. Leonards in _Jefferys_ v. _Boosey_,[189] and the other of Bayley, J., in _Clementi_ v. _Walker_.[190] If a book is first published outside the British dominions there will be no copyright[191] in it except under the International Statutes.[192] Section 19 of 7 & 8 Vict. has been held to apply to publication in all foreign countries, and not only to those with which an international convention is in existence;[193] and it has been further held to apply to the works of a British subject as well as to those of a foreigner.[194] If a dramatic or musical work is first performed abroad before publication as a book, although that may destroy the performing right within the British dominions, it probably will not affect the author's right to acquire copyright by first publication here in "book" form. It may be said that "first published" in 7 & 8 Vict. c. 12, sec. 19, has been held to include "first performed."[195] That decision, however, dealt only with a question of performing right. In _Boosey_ v. _Davidson_[196] there was first performance abroad, and it was held that copyright was obtained here by first publication; but there was no argument on section 19. SECTION III.--AUTHOR'S NATIONALITY. It must still be considered doubtful whether or not the author of a book must be a British subject, or at least resident within the British dominions at the time of publication. This point is the subject of a considerable body of case law under the statute of Anne; but there has been no definite and authoritative decision under the statute of Victoria. The question was first seriously argued in the case of _D'Almaine_ v. _Boosey_,[197] when it was decided in the Court of Exchequer that the work of a foreigner would be entitled to protection if first published in England by an English assignee. The next case was _Bentley_ v. _Foster_,[198] before Shadwell, V. C., who decided that the foreigner himself could acquire a copyright by first publication in this country. After that there is a series of confused and conflicting cases,[199] terminating with the decision of _Jefferys_ v. _Boosey_[200] in the House of Lords. The plaintiff in that case was the English assignee of the unpublished work of a non-resident foreigner. The first publication was in England. The judges were consulted, and of these six were in favour of the plaintiff's right and four against it. The House of Lords, however, were unanimous against the plaintiff's right. They decided that the work of a non-resident foreigner could not acquire copyright in this country. Lord Cranworth, L. C., said: "The statute (8 Anne) must be construed as referring to British authors only. _Primâ facie_ the legislature of this country must be taken to make laws for its own subjects exclusively, and where, as in the statute now under consideration, an exclusive privilege is given to a particular class at the expense of the rest of her Majesty's subjects, the object of giving that privilege must be taken to have been a national object and the privileged class to be confined to a portion of that community for the general advantage of which the enactment is made. When I say that the legislature must _primâ facie_ be taken to legislate only for its own subjects, I must be taken to include under the word 'subjects' all persons who are within the Queen's dominions, and who thus owe to her a temporary allegiance. I do not doubt but that a foreigner resident here, and composing and publishing a book here, is an author within the meaning of the statute: he is within its words and spirit. I go further: I think that if a foreigner having composed but not having published a work abroad were to come to this country, and the week or day after his arrival were to print and publish it here, he would be within the protection of the statute." _Jefferys_ v. _Boosey_[201] then definitely decided that under the statute of Anne a foreigner, unless at the time of publication he was resident within the jurisdiction of the crown, could not be an author within the meaning of the Act, and therefore neither he nor his assigns before or after publication could acquire copyright. It would seem to follow that the construction of 5 & 6 Vict. c. 45 would lead to a similar decision. This, however, has been doubted in the House of Lords in the case of _Routledge_ v. _Low_.[202] The actual decision in that case went no further than holding that a foreign author who was resident for a few days in Canada expressly for the purpose of acquiring copyright while her book was published in London was an author within the Act, a proposition which had not been disputed in _Jefferys_ v. _Boosey_.[203] Their Lordships, however, discussed the wider issue whether even temporary residence was necessary. Lord Cairns, L. C., and Lord Westbury were of opinion that it was not. Lord Cairns, after pointing out that _Jefferys_ v. _Boosey_[204] was a decision under the Act of Anne, said: "It was impossible not to see that the _ratio decidendi_ in that case proceeded mainly, if not exclusively, on the wording of the preamble of the statute of Anne, and on a consideration of the general character and scope of the legislation of Great Britain at that period. The present statute had repealed that Act, and professed to aim at affording greater encouragement to the production of literary works of lasting benefit to the world. And accepting this decision of the House as to the construction of the statute of Anne, it is, I think, impossible not to see that the present statute would be incompatible with a policy so narrow as that expressed in the statute of Anne."[205] Lords Cranworth and Chelmsford agreed that temporary residence within the dominions was sufficient to give a foreigner the right to acquire copyright as a British author, and therefore concurred in the judgment of the House. They, however, differed strongly from the view that a non-resident foreigner could be an author within the Act. Lord Cranworth said: "I have no hesitation in concurring with my noble and learned friend in thinking that the decree below was right. I find it difficult to concur with him in the opinion that the present statute extends its protection to all foreigners wherever they may be resident without saying that the case of _Jefferys_ v. _Boosey_[206] is not good law--a conclusion at which I should be very unwilling to come as to any case decided in this House, more especially as to one so elaborately considered as that of _Jefferys_ v. _Boosey_.[207] That case, as my noble friend has pointed out, was decided not on the construction of the Act of 5 & 6 Vict. c. 45, but on the statute of Queen Anne; but I own I do not as at present advised see any difference between the two statutes so far as relates to the subject of the residence of foreign authors." _Routledge_ v. _Low_[208] is followed as to its actual decision in _Low_ v. _Ward_;[209] but as to the rights of a non-resident foreign author the law remains, as left by _Routledge_ v. _Low_,[210] truly in a most unsatisfactory state. It is difficult to escape from the conclusion, however willingly one would, that there is really no distinction between the application of the statute of Anne and that of Victoria, and that, therefore, a case arising on this point under the Act of Victoria is governed by _Jefferys_ v. _Boosey_,[211] a decision which, if erroneous, was not so for want of deliberate research and consideration. The general opinion, however, seems to be that Lords Cairns and Westbury were right and Lords Cranworth and Chelmsford wrong. This view is adopted by Stephen, J., in his digest.[212] Mr. Scrutton is of the same opinion, and cites the Naturalisation Act and the proviso that copyright is personal property.[213] Mr. Chamier does the same.[214] It is respectfully submitted that the provisions of the Naturalisation Act and the indisputable fact that a foreigner wherever resident can acquire a British copyright are entirely beside the mark, and do not in the least help one to decide whether the legislature is to be presumed to have applied the Act of 5 & 6 Vict. to the works of foreign authors. The decision that the work of a non-resident foreign author will not be protected is in no way contrary to the provision of the Naturalisation Act that an alien friend may acquire and hold personal property in the same way in all respects as a British subject. The logical conclusion from that provision is that an alien friend as well as a British subject may acquire British copyright wherever it exists; but it does not necessarily follow that British copyright exists in the work of a foreign author, and that either an alien friend or a British subject can acquire it. After the passing of the Chace Act (1891) in the United States, the law officers of the Crown in England were consulted by the American law officers, and they advised that an American author could acquire copyright in his work by simultaneous publication in this country and America, even although he was not at any time resident within the British dominions. Consequently on that advice the President of the United States proclaimed Great Britain as one of the countries which gave by their law reciprocal rights to American authors; and English authors are thereby entitled to acquire copyright in the United States. It would certainly be most unsatisfactory if the law of England were now to be declared contrary to the advice then given by our law officers, but it cannot be said that this should influence our Courts if their decision on the point was called for. SECTION IV.--IMMORAL WORKS. Profane,[215] indecent,[216] seditious,[217] and libellous[218] books will not be protected. Neither will those which are a fraud upon the public.[219] For instance, a book published as translated from the German of Sturm, which was entirely untrue and induced purchasers to buy it, was refused protection.[220] _Quære_ whether a piratical book would be protected in so far as it was original. Probably it would.[221] If a book is not wholly mischievous, but only in part, it will probably be protected except as to that part;[222] and if a book is subsequently published purged of its immoral matter or fraudulent nature it would be protected.[223] If an action is brought in respect of a mischievous publication the practice of the Court is to dismiss the action without costs.[224] In one case[225] Mathew, J., would not take cognisance of immorality _mero motu_, and when it was not pleaded by the defendant he gave the plaintiff his remedy. Notwithstanding this, there can be no doubt that the Court may refuse to interfere even when both parties are willing to waive the question of immorality. The Court cannot be compelled to sit to take an account between public malefactors. SECTION V.--REGISTRATION. =Before Action.=--Before an owner of copyright sues for infringement his book must be registered at Stationers' Hall.[226] The omission to register does not affect the copyright in a book, but it is a condition precedent to the right to sue in respect of the infringement thereof.[227] At one time it was thought that registration was only a condition precedent to an action for the particular remedies given by the statute, and that whether registration was effected or not the common law right of action for damages lay.[228] This, however, is not law. Registration is a condition precedent to any right of action for infringement of copyright. If an action is brought without proper registration, that action must fail; but a correct entry may then be made and a fresh action commenced.[229] No registration is necessary to maintain an action for the infringement of performing rights in a book which is a dramatic or musical work.[230] Registration need not be made before infringement: it may be effected at any time before the writ is issued.[231] In one case it was held a good registration when entry was made on the same day, but a few hours before the issue of the writ.[232] In _Hole_ v. _Bradbury_,[233] Fry, J., held that registration after infringement did not entitle the plaintiff to delivery up of copies for his own use under the 23rd section of the Act of 1842, but that under its general jurisdiction the Court had power to order delivery up for destruction. In _Isaacs_ v. _Fiddemann_,[234] Jessel, M. R., thought that even although infringement was before registration the plaintiff was entitled to have delivery up for his own benefit, and that the 23rd section applied to such a case. Which is the correct view it is difficult to say. The argument of Fry, J., in support of his view is elaborate and appears sound, whereas Jessel, M. R., seems to have gone more on the ground of convenience. Registration must be effected after the publication of the book.[235] In several cases an attempt has been made to secure a monopoly in a title by registration before the book was published or even written.[236] Such registration is entirely inoperative to secure a monopoly in the title or the right to sue in respect of the copyright in the book when published. Registration does not give the plaintiff any right (except perhaps as to delivery of copies) which he would not equally have had without registration.[237] All registration does is to perfect the right and give a title to sue on it. It must be remembered that it is the book which is to be registered and not the copyright. It is common but erroneous to talk of "registering copyright." The distinction was pointed out in _Trade Auxiliary_ v. _Middlesborough_.[238] The three several proprietors of three periodicals had employed and paid a contributor under section 18 on the terms that the matter contributed should belong to these three proprietors. The matter appeared in each of the three newspapers and each registered his own newspaper in his own name. It was argued that the registration was bad, since they should have been registered as joint proprietors, but the Court of Appeal held that the registration was good, since each had registered his "book," and section 19 was literally complied with. A newspaper is a sheet of letterpress within the Act and must be registered.[239] In one case[240] Malins, V. C., protected a newspaper which was not registered, but that case has been expressly overruled[241] and is clearly unsound. No registration is necessary other than that required by the Act of 1842. In _Cate_ v. _Devon_[242] it was contended that a newspaper would not be protected unless it had been registered under the Newspaper Libel Act, 1881. This contention was held erroneous, and registration under the Act of 1842 was alone required. Similarly it is not a good defence to an action for infringement that the publisher's name and address is not printed on the first or last page of a book as required by 2 & 3 Vict. c. 12.[243] =The Requisite Entry.=--Registration is made in the Book of Registry which the Act enacts[244] shall be kept at the Hall of the Stationers' Company. The fee for registration is five shillings. The Book of Registry must at all convenient times be open to the inspection of any person on payment of one shilling for every entry searched for or inspected. This, however, does not entitle any one to make a copy of an entry; but any one may demand a certified copy of an entry from the keeper of the Registry on payment of five shillings. The proprietor of the copyright must register in the Book of Registry:[245] i. The title. ii. The time of first publication. iii. The name and place of abode of the publisher. iv. The name and place of abode of the proprietor. In the case of an encyclopædia, review, magazine, periodical work, or other work published in a series of books or parts, the publisher must register:[246] i. The title. ii. The time of first publication of the first part. iii. The name and place of abode of the proprietor. iv. The name and place of abode of the publisher if different from the proprietor. _The Actual Title._--This must be registered: a description of the book will not be sufficient, even although accurate. Thus in _Harris_ v. _Smart_[247] the plaintiffs' book was intituled "Illustrated Catalogue and Price List," and they registered it as "Illustrated Book of Shop-fittings." The Court of Appeal, reversing the decision of Mathew and Grantham, JJ., held that the objection to the registration was fatal. When there is a clear and distinct title, that title they held must be registered. It might be different if a book had no title; perhaps such a book could not be registered at all; but probably a description of the book, stating that it had no title, would be sufficient.[248] In _Collingridge_ v. _Emmott_[249] the plaintiff's newspaper was intituled "Warehousemen and Drapers' Trade Journal and Review of the Textile Fabric Manufacturers"; but it was registered as "Warehousemen and Drapers' Trade Journal: Failures and Arrangements." Kay, J., thought that the discrepancy was fatal to the registration. It has been questioned whether in the case of a volume, a considerable part of which, being old matter, is not entitled to copyright, and which is published under one comprehensive title, there must not be some indication on the book itself or on the register that the owner does not claim copyright in the whole work. The point has never been definitely decided. It has been held that one who adapts new words and music to an old air and describes himself proprietor of the whole composition is entitled to protection;[250] but the question raised in these cases was whether the author was entitled to copyright at all unless he could show that the whole was original. It should always be remembered in questions of this kind that the purpose of registration is not, as has frequently been suggested in argument, to notify to an intending copyist what he may copy and what he may not. In _Cate_ v. _Devon_[251] the plaintiffs had published a "Commercial Compendium," containing lists of bankruptcies and bills of sale. They reprinted several copies of it under another title, viz. "The London Association for the Protection of Trade," and it was issued "privately and confidentially" to that association. The defendants copied matter from the latter issue and pleaded that it was unregistered, and therefore that they were entitled to copy it. North, J., held that the act of the defendants was an infringement of copyright in the "Commercial Compendium," which was registered under that title. In his judgment he said: "It is not intended that there should always be complete registration of the publication in which there is copyright in order that persons may know what they may legitimately copy and what they cannot copy. The Act itself contains provisions which make that clear. It is well known that registration is only necessary as a condition precedent to suing, and the almost universal practice on the part of large publishers notoriously is that they do not register until just on the eve of taking some proceeding. Then they take care to register their copyright and sue upon it. I think, therefore, that the contention that the defendants have not been warned by registration of the title under which the document appears is one which cannot be entertained."[252] _The Time of First Publication._--This must be exactly entered to the day of the month. In _Low_ v. _Routledge_[253] an entry of "23rd May 1864" was held to be bad when the actual publication was on the 25th of May 1864.[254] Under the International Copyright Act, 1844, an entry of the year only was held to be fatal,[255] and under the Copyright Act of 1842 it has been held in two cases that an entry of the month only is bad.[256] When a subsequent edition of a book is published, in so far as it is a reprint of the first edition, it will not be protected unless the first edition and the date of the first publication thereof is entered on the register;[257] in so far as it consists of new matter there must be an entry bearing the date of the publication of the edition in which such new matter was first published;[258] but the previous editions and the date of their respective publications do not require to be entered in order to protect the new matter,[259] and subsequent editions do not require to be entered in order to protect old matter.[260] Where a book has been revised and altered as each new edition has come out, every edition should be entered separately in the register, with the date of the publication of such edition. When a story, or article, or serial story, or a series of articles is published in a magazine or other periodical, the proprietor of the magazine need only register the first number of the magazine and the date of the publication thereof in order to entitle him to sue.[261] If, however, the action is at the instance of the author of a contribution to a collective work against third parties, the proper registration would be of the story or article only with the date of the first publication in the collective work of such story or article, or if serial, of the first part thereof.[262] Against the proprietor, for publishing separately without permission, the author does not require to be registered, as the right sued on is not one of copyright but presumably of implied contract.[263] If the owner of the periodical has acquired the entire copyright in a story or article, he can sue on a registration either of the first number of the magazine or of the first part of the story or article.[264] _The Name and Place of Abode of the Publisher._--The publisher to be entered is the first publisher of the book.[265] No subsequent publisher, unless of a revised edition, need be entered on the register.[266] If the publishers are a firm it is sufficient to enter their firm name, such as _Newby & Co._; the individual names of the members of the firm need not be entered.[267] A publisher's ordinary place of business describes sufficiently his "place of abode": his private residential address need not be entered.[268] _The Name and Place of Abode of the Proprietor._--The proprietor to be entered is the proprietor at the time of registration, and it is unnecessary to trace his title from the first proprietor.[269] The joinder of the unregistered proprietor as co-plaintiff with a person who has been erroneously registered, or who, being rightly registered, is no longer proprietor, will not render an action for infringement of copyright maintainable.[270] It is not sufficient to register a mere agent or nominee of the proprietor.[271] The registered proprietor, however, if legal owner, may sue as trustee for the equitable owner of the copyright.[272] If the plaintiff in an action is the assignee of a former proprietor already registered, either the assignment must have been by entry in the register, or the assignment, if made otherwise, must be entered. In every case the plaintiff, either as proprietor at the date of registration or as his assignee, must appear on the face of the register.[273] It is probably not necessary to register every mesne assignment from the proprietor originally registered to the plaintiff.[274] When the original proprietor is registered, and the assignee from him is subsequently registered, it is necessary that both entries should be correct, in order to entitle the assignee to sue.[275] If the proprietor has no fixed abode in the United Kingdom, an address in the United Kingdom through which he can be conveniently communicated with will probably be a sufficient compliance with the statute.[276] If there is an error in any of the particulars required to be entered in the register it is fatal to the success of an action, even although caused by neglect or carelessness on the part of one of the officials at Stationers' Hall.[277] If the necessary particulars are entered it is immaterial that superfluous matter is also entered.[278] =Certificate of Registration.=--The officer appointed by the Stationers' Company for the purposes of registration under the Copyright Acts must, whenever reasonably required, give a copy of any entry in the Book of Registry, certified under his hand and impressed with the stamp of the Stationers' Company, to any person on payment of five shillings, and such copies are to be received in evidence in all Courts, and are _primâ facie_ proof of the proprietorship or assignment of copyright or licence, but subject to be rebutted by other evidence.[279] Registration does not, however, give a title against the whole world except the true owner.[280] =False Entries.=--If any person wilfully makes or causes to be made any false entry in the Registry Book of the Stationers' Company, or wilfully produces in evidence any paper falsely purporting to be a copy of any entry in such book, he will be guilty of an indictable misdemeanour.[281] =Rectification of Register.=--If any person "deems himself aggrieved" by any entry in the Registry Book, he may apply by motion to the King's Bench Division for an order that such entry may be expunged or varied.[282] An order to expunge will not be made at the trial of an action:[283] it must be applied for by motion in accordance with section 14, unless, perhaps, it is specifically claimed in the statement of claim in the action. There is probably no appeal from an order to expunge.[284] If a wrong entry has been made in the Book of Registry, the proprietor of the copyright in the book so erroneously entered is, even although he has by mistake made the wrong entry himself, a person aggrieved within the meaning of the statute, and can apply to the Court for an order to vary such entry.[285] An order to expunge or vary will not be made without definite proof that the existing entry is erroneous, and that the proposed entry in lieu thereof is correct.[286] By the words "deem himself aggrieved" the legislature did not mean that any person who said he was aggrieved could apply: the applicant must show to the Court that he has a right to consider himself aggrieved.[287] When the copyright in a book is in dispute either party claiming the right is a party aggrieved.[288] If a non-copyright book is entered on the register, probably any one who wished to copy it would be a party aggrieved;[289] but it is not open to any one to make application to the Court on the ground of technical flaws in a registration.[290] The applicant, unless he claims the copyright, must be able to show a substantial defect on the merits of the registered proprietor's title.[291] When once an entry on the register has been struck out, the Court has probably no power to restore it.[292] SECTION VI.--DELIVERY OF COPIES TO LIBRARIES. Copies of all books first published in the United Kingdom after 1842 must be delivered to the undermentioned libraries by the publisher. In default the respective librarians may recover from the publisher:[293] i. The value of the copy which ought to have been delivered. ii. A sum not exceeding £5. iii. Solicitor and client costs. The proceedings may either be summary by way of conviction before two Justices of the Peace in the county or place where the publisher making default resides, or by action in any Court of Record in the United Kingdom.[294] The following copies are to be delivered: I. _To the British Museum_:[295] One of the best copies published (complete with maps and prints) of i. Every book first published. ii. Every subsequent edition of a book, unless (_a_) it contains no additions or alterations, and (_b_) some preceding edition has been delivered: Within one calendar month after publication or offering for sale in London. Within three calendar months after publication or offering for sale elsewhere in the United Kingdom. The copy must be delivered between 10 A. M. and 4 P. M. on any day except Sunday, Ash Wednesday, Good Friday, and Christmas Day.[296] The officer of the Museum appointed to receive these copies is required to give a receipt in writing.[297] II. _To each of the following Libraries_,[298] _or to Stationers' Hall for their use_: The Bodleian Library at Oxford. The Public Library at Cambridge. The Library of the Faculty of Advocates at Edinburgh. The Library of Trinity College at Dublin. One copy of those copies of which the largest number is printed for sale, and in the like condition of i. Every book first published. ii. Every subsequent edition of a book, unless (_a_) it contains no alterations or additions. Within one month after demand. Provided that within twelve months after publication demand has been made to the publishers under the hand of the officer of the Company of Stationers or other person authorised thereto by the respective libraries. The officer at Stationers' Hall and librarians of the several libraries are required to give a receipt in writing when a copy of a book is delivered to them. The clauses as to delivery of copies are to be considered as being strictly penal. In _The British Museum_ v. _Payne_,[299] under the similar provisions in 54 Geo. III. c. 156, it was held that when a book was published in parts, a single part was not demandable. The Court refused to consider the question when, if ever, the complete book would be demandable. It will be noticed that neither the copyright nor the right to sue is affected by non-delivery of these copies. The only consequence of omission to do so is a penalty on the publisher. The right of the various bodies to delivery of a copy applies to all books published within the United Kingdom and not only to those entered at Stationers' Hall.[300] SECTION VII.--DURATION OF PROTECTION. Protection dates from first publication. _Generally._--The period of protection is for the natural life of the author and for seven years after his death, or for forty-two years from the date of publication, whichever period shall be longer.[301] _Posthumous Works_ are protected for forty-two years from the date of publication.[302] _Encyclopædias_ are protected for the life of the proprietor and seven years (by 5 & 6 Vict. c. 45, sec. 18, the proprietor of a collective work enjoys the same rights as if he were the actual author thereof), or for forty-two years from the date of publication, whichever period shall be the longer.[303] _Reviews_, _Magazines_, _and other periodical works of a like nature_[304] have two separate copyrights, viz.: i. The proprietor's copyright in the publication, as a whole, for his life and seven years, or forty-two years from first publication. ii. The contributor's copyright in his separate contribution as a separate work, beginning twenty-eight years after publication of the collective work, or on separate publication, if such should by agreement take place within the twenty-eight years, and lasting for his life and seven years, or forty-two years from first publication in the collective work. _New Editions._[305]--As to each edition, the copyright runs from the date of publication thereof, in so far as the matter therein is then first published. _Joint Works._--Although there is no statutory provision, they are probably protected for the life of the surviving author and seven years, or for forty-two years from first publication.[306] SECTION VIII.--COPYRIGHT IN LECTURES. There is no lecturing right, _i. e._ no exclusive statutory right to deliver a lecture in public. The only Act applying to lectures is 5 & 6 Will. IV. c. 65, which, under pain of penalties, prohibits printing or publishing, or knowingly selling lectures, which at the time of delivery have not been published in book form, without leave of the author thereof, or of the person to whom the author thereof has sold or otherwise conveyed the same. The remedy is action in the High Court for: (i) Forfeiture of copies. (ii) One penny per copy; half to the Crown and half to informer. A condition precedent of protection under this Act is the giving of notice in writing to two justices living within five miles from the place where such lecture or lectures are delivered, two days at least before delivering the same. The Act has fallen into entire desuetude, partly, no doubt, on account of this somewhat troublesome stipulation as to notice, but principally because a lecturer has, in fact, full protection at common law, if, as is usually the case, he can make out an implied contract between himself and his audience that the delivery of the lecture is for purposes of instruction only, and that those present are entitled to make no other use of it whatsoever.[307] His remedy at common law will be for damages and injunction. Of course he cannot sue for penalties, unless he has brought himself within the Act. The Lectures Act does not apply so as to protect any lecture or lectures delivered in any university, or public school or college, or on any public foundation, or by any individual in virtue of, or according to, any gift, endowment, or foundation.[308] The law relating to such lectures is declared to be the same as if the Lectures Act had not been passed. The result of this proviso is that these special kinds of lectures are nearly always protected at common law by implied contract in the same way as other lectures.[309] CHAPTER III THE OWNER OF THE COPYRIGHT IN BOOKS SECTION I.--THE CROWN. When the Crown ceased to have the complete control which it originally exercised over the printing-press, it still claimed to retain, as its prerogative, the exclusive right of printing such works as it considered its own peculiar property.[310] These included the authorised translation of the Bible, the Common Prayer Book, Acts of Parliament[311] and Proclamations,[312] Latin Grammars and Year Books. Law books, such as "Rolle's Abridgment," and reports collected by the judges were also claimed by the Crown on the ground that the laws were the King's Laws. Classical books, almanacs and the like, were claimed by the Crown as _bona nullius_ and things derelict. As regards those books which the Crown claimed as its own property, it granted licences and patents. The Stationers' Company, the King's printers, the Universities, and from time to time various individuals received grants of authority to print such works. Many of the claims, for instance, to almanacs, law reports, Latin grammars, have for long been abandoned. The patentees of the Crown, however, still claim a prerogative copyright in-- 1. The Authorised English Translation of the Bible.[313] 2. The Book of Common Prayer.[314] The Universities of Oxford and Cambridge and the King's printers have each the right to print the Bible and the Prayer Book. No objection has ever been taken on behalf of the Crown or her patentees to the printing of the Bible with notes, and this is in practice constantly done without authority. The notes, however, must be substantial and not merely illusory.[315] In 1887 the Treasury published a Minute[316] in which the claims of the Crown to the exclusive right of publishing Government publications are set out. The Minute was published in the _London Gazette_. The following publications are declared to be free from restriction of any kind, and any person may therefore publish them with or without notes: 1. Reports of Select Committees of the Two Houses of Parliament, or of Royal Commissions. 2. Papers required by Statute to be laid before Parliament, _e. g._ Orders in Council, Rules made by Government Departments, Accounts, Reports of Government Inspectors. 3. Papers laid before Parliament by Command, e. g. Treaties, Diplomatic Correspondence, Reports from Consuls and Secretaries of Legation, Reports of Inquiries into Explosions or Accidents, and other Special Reports made to Government Departments. 4. Acts of Parliament. 5. Official books, _e. g._ King's Regulations for the Army or Navy. In the following works the Government claims to retain the copyright: 1. Literary or quasi-literary works, _e. g._ the Reports of the _Challenger_ Expedition, the Rolls Publications, the State Trials, the "Board of Trade Journal." 2. Charts and Ordnance Maps. The ancient prerogative claimed by the Crown was a perpetual copyright. The Crown is not mentioned in the Copyright Act, and it is open to doubt whether it could enforce a perpetual copyright in works compiled by its servants, or whether it could only claim the term of copyright granted by the Copyright Act. SECTION II.--THE UNIVERSITIES. By an Act of George III.[317] provision is made for the vesting of copyrights in perpetuity in the Universities of Oxford and Cambridge, the Scottish Universities and the Colleges of Eton, Westminster, and Winchester. These privileges were obtained in consequence of the decision in _Donaldson_ v. _Beckett_[318] in the House of Lords to the effect that there was no perpetual copyright. Perpetual Copyright under the Universities' Act attaches to those books which are "bequeathed or otherwise given" to one of the Universities or Colleges. A work such as The Revised Version of the Bible, which was compiled under the direction and at the expense of the two Universities, will probably not have perpetual copyright under the Act since it is neither bequeathed nor given. The same would apply to copyrights purchased by a university or college. The book in which University privilege is claimed must be registered within two months after the time when the bequest or gift of the copyright comes to the knowledge of the Vice-Chancellor of the University or head of the college, as the case may be. The remedy against unauthorised printing or importing or knowingly selling, publishing, or exposing for sale any book in which there is University copyright is an action in the High Court for-- (_a_) Forfeiture for destruction. (_b_) One penny for every sheet found in the custody of the infringer, half to go to the Crown and half to the informer. The perpetual privilege granted by the Act only subsists so long as the book is printed only within the respective Universities or Colleges, and for their sole benefit and advantage. This does not debar them from selling the copyright, but if sold it will only subsist for the term granted to authors by the Copyright Act, 1842. _Quære_ if some of Jowett's works, for instance, were printed in the United States in order to acquire American copyright, whether that would destroy the perpetual copyright by reason of copies being printed outside the University. SECTION III.--THE AUTHOR. Copyright in every book published in the lifetime of the author thereof "shall be the property of such author and his assigns."[319] Copyright therefore in the first instance ordinarily vests in the author. The word author is not defined in the Act, and from time to time difficult questions have arisen as to who is the author of a particular book within the meaning of the Act. Difficulties have generally arisen from the fact that two or more people have been engaged in the production of a book. The rule appears to be that, if the literary matter is composed by those who make the manuscript,[320] the author is the man from whom emanates the general conception and design, and that although much of the detail may have been the work of subordinate brains and hands, he is the author of the entirety, and may sue for any infringement of it. Thus in _Scott_ v. _Stanford_,[321] where the plaintiff compiled and published periodically statistical returns of the London coal market, Page Wood, V. C., in giving judgment, said that it appeared to him quite immaterial whether the plaintiff had been assisted in the compilation by his own clerks or by those of the Corporation. In _Barfield_ v. _Nicholson_[322] a case under the statute of Anne, Leach, V. C., said that he was of opinion that under the statute the one who formed the plan and embarked on the speculation of a work, and employed various persons to compose different parts of it adapted to their own peculiar acquirements, was the author and proprietor of the work, if not within the literal expression, at least within the equitable meaning of the statute of Anne. In _Hatton_ v. _Kean_[323] the defendant had arranged certain of Shakespeare's plays with adjuncts of scenery, music, dancing, &c., and employed artists and authors to aid him in carrying his design into effect; amongst others, the plaintiff was employed to compose and arrange the orchestral accompaniments. The Court of Common Pleas held that the defendant was the author of the entire production. Erle, C. J., said: "I am of opinion that the music so composed by the direction and under the superintendence of the defendant, and as part of the general plan of the spectacle, must, as between him and the plaintiff, become the property of the defendant, and that consequently the defendant has violated no right of the plaintiff in causing it to be represented in the manner alleged."[324] In _Wallerstein_ v. _Herbert_,[325] where the facts were similar to those in _Hatton_ v. _Kean_,[326] that case was approved by the Court of Queen's Bench. Cockburn, C. J., said: "Looking at the nature of this composition, it is clear that it became a part and parcel of the drama, and was not an independent composition." These decisions seem equally applicable to books which are not dramatic compositions, but _quære_ whether _Hatton_ v. _Kean_[327] did not go too far. It seems a strange thing to say that the arranger of a play becomes the author of, _inter alia_, the musical accompaniment of which, perhaps, he could not have composed a single bar. Would, for instance, the author of a book be also the author of illustrations which he had procured another to draw for him? Kekewich, J., in _Petty_ v. _Taylor_, thought not.[328] The mere suggestion of a subject or idea which is then entirely designed and executed by another does not constitute the originator of the idea an author, even although the actual composer is his employee.[329] In _Shepherd_ v. _Conquest_[330] the plaintiffs, proprietors of a theatre, employed a "stock author" who, on payment of a weekly salary and travelling expenses, composed plays for them. Under this employment the author composed "Old Joe and Young Joe," a dramatic piece, which he handed over to the plaintiffs, and which was produced by them at their theatre. There was no contract or assignment in writing, but there was an oral understanding that the plaintiffs should have the sole right of representing the piece in London. It was held in the Court of Common Pleas that the plaintiffs had acquired no title under the Dramatic Copyright Act, 3 & 4 Will. IV. c. 15, by reason of which they could sue an infringement of the performing right.[331] Jervis, C. J., delivered the judgment of the Court: "We do not think it necessary in the present case to express any opinion whether, under any circumstances, the copyright in a literary work or the right of representation can become vested _ab initio_ in an employer other than the person who has actually composed or adapted a literary work. It is enough to say in the present case that no such effect can be produced when the employer merely suggests the subject, and has no share in the design or execution of the work. It appears to us an abuse of terms to say that in such a case the employer is the author of a work to which his mind has not contributed an idea." There may be joint authorship of a book. To constitute joint authorship the work must be produced by joint labour in prosecution of a preconceived joint design. In _Levy_ v. _Rutley_[332] A wrote a play, to which subsequently B added a scene, and made a few alterations and additions in other parts of the piece. It was held that there was not joint authorship. Byles, J., said: "If the piece had been originally written by A and B jointly in prosecution of a preconcerted joint design, the two might have been said to be the co-authors of the whole play, notwithstanding that different portions were respectively the sole productions of either." And Keating, J., said: "I entirely agree with my brother Byles that though it may not be necessary that each should contribute the same amount of labour, there must be a joint labouring in furtherance of a common design." _Quære_ whether co-authors are joint owners with the right of survivorship. In _Marzials_ v. _Gibbons_[333] it was suggested that they were, but see the decisions where co-assignees are held to be owners in common, or part owners without the right of survivorship.[334] _Quære_ also whether each co-author, as is the case with each co-assignee,[335] is entitled to sue in respect of an invasion without the concurrence of the other co-author or co-authors. Until _Walter_ v. _Lane_[336] was decided in the House of Lords, it was a prevalent opinion that the author must be he who actually designs and by himself or through others composes the literary matter contained in the book. That case, however, demonstrates that the author is the first producer of literary matter in "book" form, _i. e._ in some permanent form from which it can be copied by the printer's compositor, usually, but not necessarily, manuscript. As a rule such person is also the composer of the literary matter contained in the book, but this is not a necessary attribute of the character of author. In _Walter_ v. _Lane_[337] Lord Rosebery had delivered without reserve of any kind certain public speeches. They were delivered orally, not having been previously committed to writing. On the various occasions when they were delivered reporters from the _Times_ were present, and they took down the speeches verbatim. From these reports they were transcribed into long hand, and published in the _Times_. Mr. Lane, a publisher, took these speeches from the columns of the _Times_, and without any authority from the proprietors thereof, published them in a volume entitled "Appreciations and Addresses, by Lord Rosebery." In this action at the instance of the proprietors of the _Times_ for the infringement of the copyright in their reports, it was finally held in the House of Lords, firstly, that as these reports contained literary matter published for the first time in "book" form, they were the subject of copyright, and secondly, that the reporters were the authors within the meaning of the Act, since they first reduced the literary matter orally delivered by Lord Rosebery to "book" form. SECTION IV.--THE EMPLOYER. =Under Section 18.=--An employer is _ab initio_ entitled to the copyright when he employs an author within the meaning of and subject to the conditions imposed by section 18. Section 18[338] enacts that-- "When any publisher or other person shall before or at the time of the passing of the Act have projected, conducted, and carried on, or shall hereafter project, conduct, and carry on, or be the proprietor of any encyclopædia, review, magazine, periodical work, or work published in a series of books or parts, or any book whatsoever, and shall have employed or shall employ any persons to compose the same in any volumes, parts, essays, articles, or portions thereof for publication in or as part of the same, and such works, volumes, parts, essays, articles, or portions, shall have been or shall hereafter be composed under such employment on the terms that the copyright therein shall belong to such proprietor, projector, publisher, or conductor, and paid for by such proprietor, projector, publisher, or conductor, the copyright in every such encyclopædia, review, magazine, periodical work, and work published in a series of books or parts, and every volume, part, essay, article, and portion so composed and paid for shall be the property of such proprietor, projector, publisher, or other conductor, who shall enjoy the same rights as if he were the actual author thereof, and shall have such term of copyright therein as is given to the authors of books by this Act; except only that in the case of essays, articles, or portions forming part of and first published in reviews, magazines, and other periodical works of a like nature, after the term of twenty-eight years from the first publication thereof respectively, the right of publishing the same in a separate form shall revert to the author for the remainder of the term given by this Act: provided always that during the term of twenty-eight years the said proprietor shall not publish any such essay, article, or portion separately or singly without the consent previously obtained of the author thereof or his assigns: provided also that nothing herein contained shall alter or affect the right of any person who shall have been or who shall be so employed as aforesaid to publish any such his composition in a separate form, who by any contract, express or implied, may have reserved or may hereafter reserve to himself such right; but every author reserving, retaining, or having such right, shall be entitled to the copyright in such composition when published in a separate form, according to this Act, without prejudice to the right of such proprietor, projector, publisher, or conductor, as aforesaid." The nature of a proprietor's rights in the articles contributed to his periodical under section 18 is well summarised by Chitty, J., as follows: "This 18th section when fairly examined comes to this: the author of a literary work is the proprietor of the copyright under the general sections of the Act. If it is unpublished matter, probably the better term is to say that his right is to prevent any one else from publishing. If it is published matter, then his right is a true copyright, and it is to prevent anybody else from multiplying copies, and that right is vested in him.... Then comes this 18th section, the short effect of which is to transfer for a limited period a portion of the copyright to the proprietor of the periodical for whom the article has been composed; it being a condition that there shall not only be a composition of the article on the terms that it shall belong to the proprietor or publisher, but also that the sum agreed to be paid has been paid."[339] _Scope of Section._--In some of the earlier cases it seems to be suggested that section 18 applies only to works of a periodical nature.[340] But this gives no meaning to the words "or any book whatsoever," which surely could not be construed as including only books _ejusdem generis_ as periodicals. The first part of the section appears to include all books if produced under the conditions as to employment and payment there enacted.[341] The judgment in _Shepherd_ v. _Conquest_[342] suggests that in the opinion of the Court in that case section 18 did not apply when the performing right in a play was claimed by the proprietors of a theatre, the play having been produced by a "stock author" in their employment. It is difficult to see why section 18 should not be equally applicable to the performing right as to the copyright. Section 20 of 5 & 6 Vict. c. 45 provides that-- "The provisions hereinbefore enacted in respect of the property of such copyright and of registering the same shall apply to the liberty of representing or performing any dramatic piece or musical composition as if the same were herein expressly re-enacted and applied thereto, save and except that the first public representation or performance of any dramatic piece or musical composition shall be deemed equivalent in the construction of this Act to the first publication of any book." _Under such Employment._--The author must be "employed" and the work must be composed "under such employment." It appears therefore that a work or part of a work would not come within this 18th section unless actually executed in the course of the author's employment by the proprietor. In other words, there must be antecedent employment.[343] A contribution voluntarily sent to a magazine would not, even although accepted and paid for on the terms that the copyright should belong to the proprietors, come under the provisions of section 18. It is submitted that it would become the sole property of the proprietor of the magazine for all purposes without any reservation of the right of separate publication to the author.[344] If A employs B, who in his turn employs C, the copyright will vest in A if B acted as a mere agent for A. Thus in _Stubbs_ v. _Howard_,[345] Stubbs employed the Mercantile Press to obtain the necessary information for their Gazette, and the Mercantile Press employed P. to collect and compile. It was held that the copyright vested _ab initio_ in Stubbs under section 18. But if A employs and pays B to do certain literary work, and B, of his own authority, employs and pays C, D, and E to do certain portions of it, it is doubtful whether the copyright in these portions will vest in A under section 18. The author has been neither employed nor paid by the proprietor of the work since B acted not as an agent for him, but as an independent contractor.[346] The operation of section 18 seems to be exhausted in the first employment. "_On the terms that the copyright therein shall belong to such proprietor._"--The terms may be implied from the nature of the employment and the circumstances under which the work is composed. In _Sweet_ v. _Benning_[347] various members of the bar had furnished reports of cases to the plaintiffs, the proprietors of the _Jurist_. The reporters selected what cases they thought fit to report and were paid for their work. The arrangements were entirely oral, and nothing seems to have been said about copyright. The Court of Common Pleas held that the proprietors of the _Jurist_ became the owners of the copyright under the 18th section. Maule, J., in support of his opinion said: "When a man employs another to write an article or to do anything else for him, unless there is something in the surrounding circumstances or in the course of dealing between the parties to require a different construction, in the absence of a special agreement to the contrary, it is to be understood that the writing or other thing is produced upon the terms that the copyright therein shall belong to the employer." In _Trade Auxiliary_ v. _Middlesborough_[348] the proprietors of _Stubbs' Weekly Gazette_ and two other weekly papers jointly employed on salary two men to examine the official records and extract the particulars of bills of sale and deeds of arrangement registered in accordance with the Acts. The information so obtained was published in the weekly papers. It was held that the proprietors of the respective papers became owners of the copyright under section 18. In _Lamb_ v. _Evans_[349] the plaintiff employed and paid several persons in canvassing for advertisements and arranging them under appropriate headings in a Trades Directory. Lindley, L. J., in giving judgment, said he thought that-- "The burthen of proof was on the plaintiff to show that the headings were composed upon the terms that the copyright therein should belong to him; but the statute does not say anything about the kind of evidence which is to be adduced for the purpose of proving that an article has been composed on these terms.... If there is no express agreement the question is, what is the inference to be drawn from the circumstances of the case. In drawing the inference regard must be had to the nature of the articles which are here merely the headings to groups of advertisements with translations, and the view expressed by Mr. Justice Maule in _Sweet_ v. _Benning_[350] may be very safely acted upon, viz. that _primâ facie_ at all events you will infer, in the absence of evidence to the contrary, from the fact of employment and payment that one of the terms was that the copyright should belong to the employer. That is not a necessary inference; but in a case of this sort, where any other inference would be unbusinesslike, I should not hesitate myself to draw that inference." Bowen, L. J., in the same case, says: "From where are you to collect the terms? You may collect them from what passed between the parties, that is to say between the plaintiff and the persons whom he employed, but you may also collect them from the nature of the business itself, and it seems to me to be impossible as a matter of business to suppose that these headings were composed and furnished to the plaintiff upon any other terms than that he was to have the copyright in them, because otherwise those who composed them having furnished them to the plaintiff might themselves have published them and defeated his object." On the other hand in _Walter_ v. _Howe_,[351] Jessel, M. R., held that the _Times_ could not sue in respect of a biography of Lord Beaconsfield which had appeared in their columns. There was evidence that the author had been paid for his literary services, but there was apparently no evidence as to whether he had been "employed" "on the terms that the copyright should belong" to the plaintiff. Notice that in this case no antecedent employment whatsoever is shown. In _Johnson_ v. _Newnes_[352] a series of stories were contributed to the _Weekly Dispatch_ under an arrangement between the proprietor and the author. The author was not on the permanent staff of the _Weekly Dispatch_. He was paid by the proprietors for his contributions, the arrangement being that the author should have the right of separately publishing the stories, provided such separate publication did not take place until after all the stories had appeared in the _Weekly Dispatch_. In an action by the author against an infringer, Romer, J., in giving judgment for the plaintiff, said that he had come to the conclusion that although the plaintiff was paid he was not paid on the terms that the copyright in the stories should belong to the proprietors of the journal. The author had therefore not parted with the copyright and was the proper plaintiff.[353] In _Aflalo_ v. _Lawrence_[354] the defendants published a work called "The Encyclopædia of Sport." A, one of the plaintiffs, agreed with the defendants that he would edit the work. He was to receive £500 for his services, and to write without further remuneration 7000 words of special articles. He was entitled to pursue his literary work in so far as it did not interfere with the performance of his duties. A contributed an article to the encyclopædia under this agreement. A, by the request of the defendants, procured C, the other plaintiff, to write certain articles for the encyclopædia at the rate of £2 per thousand words. The articles of both plaintiffs were published in the encyclopædia. Joyce, J., held that the contributions of neither plaintiff came within section 18, since there was nothing to show that they were contributed on the terms that the copyright therein should belong to the defendants. The defendants were therefore not entitled to publish the plaintiff's articles in any other form than as part of the encyclopædia. In view of the earlier authorities I think this decision is extremely doubtful. _Joint Employers._--As has been seen above in the case of _Trade Auxiliary_ v. _Middlesborough_,[355] two or more proprietors of several periodicals may jointly employ an author so as to acquire the copyright under this section. Each has a separate copyright in his respective paper, and, although the matter contributed to the several papers is the same, may sue without joining the other proprietors. Each is "a transferee by virtue of section 18 of a limited portion of the copyright in that particular composition."[356] _Payment._--Not only must there be employment for reward, but payment is a condition precedent. If payment is not proved the section will not operate to transfer the copyright from the author.[357] Payment must be made before the commencement of an action.[358] It has been suggested that it must be made before piracy, and this appears a sound view since there is no copyright in the proprietor until payment, and an infringement before copyright is assigned is no cause of action in the assignee.[359] There is nothing to suggest that payment must be made before publication.[360] _Author's Separate Rights._--When an author has contributed to a periodical and the conditions of the section have been fulfilled so as to vest the copyright in the proprietor of the periodical, it would seem that for twenty-eight years, _i. e._ until the right of publishing in separate form reverts to the author, the author has no right to sue third parties in respect of an infringement without joining the proprietor of the periodical as co-plaintiff. If, however, the author, while contributing on the terms that the proprietor should have the copyright, reserves the right of publishing his composition in a separate form within the meaning of the proviso at the end of the section, when he does publish in separate form he will be entitled to copyright concurrently with the proprietor, but semble that he will have no right to sue alone until publication in separate form,[361] or until the lapse of twenty-eight years. During the twenty-eight years the proprietor of a periodical work is not, apart from express agreement, entitled to publish the contribution in separate form. If the proprietor does publish separately in breach of the provision of the section, the author has a right of action against him, and the author's right not being one of copyright but in respect of a breach of implied or statutory contract he does not require to be registered.[362] "Separate" means in any other form than the original collective publication, whether as a single work by itself or in conjunction with other matter. When the proprietor of a magazine reprinted certain stories which had appeared in the magazine from time to time, and published them as a supplement to the current number, this was held to be a publication in separate form which the author could prevent.[363] So also the republication of the Christmas number of a periodical under a different title, form, and price, is a separate publication of an article contained in such number.[364] A Christmas number of a serial publication, although published in an entirely different form with separate pagination and sold at a different price from the ordinary numbers, is part of the periodical, and separate publication of the stories therein will be prohibited under section 18.[365] An article may be contributed to a periodical under express or implied terms that the copyright shall belong to the proprietor for all purposes, in which case there will be no reservation of a right of separate publication.[366] It should be clearly noted that the second part of section 18 applies only to periodical works. Therefore in the case of an encyclopædia or similar collective works the owner has, apart from special terms, a right to publish the contributor's article separately from the original publication. =Employer's Rights where Section 18 does not Apply.=--A question of some difficulty has been raised from time to time to which there is no definite authoritative answer, viz. whether apart from the provisions of section 18 the copyright ever vests _ab initio_ in the employer of an author. We shall see in dealing with assignment that probably the sole right before publication to acquire the copyright of a book on first publication may pass from the author to his assignee without writing, either by an implied gift on delivery of the manuscript or by express oral assignment. The question now considered is whether by the fact of employment alone the work of the employee may not _ipso facto_ on production become the property of his employer. In _Sweet_ v. _Benning_[367] it was held that the employment of certain members of the bar as reporters came within section 18, and that the copyright vested in the employers themselves; but during the argument Maule, J., is reported to have said: "One might almost infer without the aid of an Act of Parliament that one who employs another to write an article or to make anything else for him is the owner or proprietor." I think that this suggestion is wrong if applied to the case of an independent contractor, and that if such an employment does not come within section 18 there will be no proprietary right in the employer _ab initio_, although it may be transferred to him before publication by mere delivery of the manuscript with the mutual intention to convey all rights. But in the case of a servant or agent who produces literary work in the course of his employment, I think it is different. I think that his work will vest _ab initio_ irrespective of section 18, and that section 18 only applies to an independent contractor and not to a servant. In _Hildesheimer_ v. _Dunn_[368] Kekewich, J., takes this view. He says: "I entertain a strong opinion that when a person has composed verses, we will say on behalf of another, that is to say as his servant or agent, whether for pay or not, the person on whose behalf such verses are composed is properly registered under the Act as the proprietor, notwithstanding that there is no assignment in writing or indeed any assignment at all." SECTION V.--THE ASSIGNEE. =Before Publication.=--Before a manuscript has been published the right to publish and acquire the copyright may be assigned so that on publication the copyright will be the property of the assignee. If the publication takes place during the lifetime of the author, the assignee takes the copyright under sections 2 and 3 of the Copyright Act, 1842.[369] Section 3 provides "that the copyright in every book which shall, after the passing of the Act, be published in the lifetime of its author ... shall be the property of such author and his assigns." Section 2 provides that the word "assigns" shall be "construed to mean and include every person in whom the interest of an author in copyright shall be vested, whether derived from such author before or after the publication of any book, and whether acquired by sale, gift, bequest, or by operation of law or otherwise." If the publication takes place after the death of the author, the assignee takes the copyright under section 3, which enacts that "the copyright in every book which shall be published after the death of its author ... shall be the property of the proprietor of the author's manuscript from which such book shall first be published and his assigns." The possession and right of property in the manuscript is _primâ facie_ proof of the right to publish and acquire copyright, but such proof may be rebutted by showing that the possession or ownership of the manuscript has been separated from the right to publish and acquire copyright. Thus in the case of letters the literary property remains in the writer and his assigns, whereas the property in the physical substance of the manuscript has passed to the receiver and his assigns. If an assignment of manuscript, purporting to carry with it the right to publish and acquire copyright, is made before publication, it is submitted that no writing is required. The requirement that an assignment of copyright after publication must be in writing is founded not on an express enactment, but on implication from section 15 of the Copyright Act, 1842.[370] This section prohibits the reproduction of any book in which there is subsisting copyright without the consent in writing of the proprietor thereof. From this it is deduced by _a fortiori_ argument that an assignment of subsisting copyright must be in writing.[371] It does not in the least follow that the common law right in manuscript may not be assigned by any mode by which property of that description might be assigned at common law. The Courts have not, however, sufficiently distinguished between an assignment before and an assignment after publication, and as a result the case law on the subject is in a most unsatisfactory condition. There are several cases under the statute of Anne, which statute, in very similar words to the statute of Victoria, provides that copyright shall belong to the author and his assignee or assigns. There is no definition of "assigns," as in the statute of Victoria, but the rule that assignment of copyright must be in writing is deduced in the same way from the proviso that consent to copy must be in writing. The cases under the statute of Anne should therefore be equally applicable as authorities under the statute of Victoria. In _Clementi_ v. _Walker_[372] a French author had assigned orally to an English subject the exclusive right of printing and publishing a musical composition in this country. The work had not been published in England, and apart altogether from the question of a prior publication in France, the Court was of opinion that the publication in England did not give copyright to the English publisher, "because there was not any assignment or consent in writing given to the author previously to that publication. The case of _Power_ v. _Walker_[373] is an authority to show that a parole assignment is not sufficient to give to the assignee the privileges conferred by the legislature upon the author." In _Colburn_ v. _Duncombe_[374] there was a written publishing agreement whereby the author agreed to write a book and assign the whole copyright therein. On completion the manuscript was delivered to the publisher, and the author gave a written receipt for the consideration and agreed to deliver a regular assignment when called upon. This was never done, and in an action by the publisher against an infringer it was held that he could not sue without the author in whom the copyright had vested and remained. In _Sweet_ v. _Shaw_[375] the plaintiffs agreed with A and B that A and B should report cases for them. A and B accordingly took notes of cases, and these were printed and published by the plaintiffs. Shadwell, V. C., said that he thought the plaintiffs had a copyright in equity but not in law. "I cannot," he said, "see how the agreement that persons shall prepare a work for the plaintiffs gives the plaintiffs a copyright in law, for there can be no assignment in law except of that which actually exists." In all these three cases last cited it is submitted that the whole right of the author should have been held to have passed to the publisher by the delivery to him of the manuscript with the mutual intention that he should acquire all rights therein. The first case in which it is recognised that the author's right may before publication pass without writing is _Jefferys_ v. _Boosey_.[376] Erle, J.,[377] and Coleridge, J.,[378] decided that no writing was required. Speaking of an oral assignment abroad of a manuscript subsequently published here, Coleridge, J., said: "The assignee is clearly within the enabling clause of the statute (8 Anne, c. 19); he is the assignee of an author, and even if these words may in some cases mean an assignee under an instrument in writing attested by two witnesses, it has not been shown or decided that they must or can mean this in all cases. I think the contrary has been shown. Larger words and less restrained the legislature could scarcely have used, and on what sound principle are we to import a restraint by implication?" Lord St. Leonards, however, in the same case, seemed to be of opinion that the assignment must be in writing and attested by two witnesses (under 8 Anne, c. 19) even although made before publication. In some of the cases the publisher with whom the author has agreed that he shall have the whole copyright, but to whom there has been no assignment in writing, has been said to be an equitable owner of the copyright.[379] But it is submitted that if the manuscript passes before publication with mutual intention to convey to the publisher all right, title, and interest therein, the publisher is the legal assignee, and on publication is the legal owner of the copyright, and there is no necessity for a formal assignment in writing.[380] The same principle may not apply to performing rights in dramatic and musical works under 3 & 4 Will. IV. c. 15. It is probable that statutory performing rights vest in the author on production,[381] and if this is so there would probably be no common law performing right, and therefore no common law assignment; the statutory mode of assignment would attach from the beginning.[382] =After Publication.=--After publication an assignment must be in writing.[383] It need not be by deed nor attested by witnesses,[384] nor, it would seem, need it be signed by the proprietor or any one.[385] The assignment may be given by an agent. An assignment does not require to be registered in order to make it valid as a transfer of the property: but an assignee who sues must be registered.[386] If the assignor is registered as proprietor complete assignment may be made by entry on the Book of Registry at Stationers' Hall.[387] Probably an author, even although not registered, may make a valid assignment by registering the book in the name of his assignee as proprietor.[388] It has been held that an unregistered author may so register himself and two others and give all three a title to sue as joint proprietors, from which it seems to follow that he could have registered the two others without himself.[389] An assignee may make the entry on the register himself without the concurrence or consent of his assignor.[390] In the case of an assignment made otherwise than by entry on the register, the writing must in itself amount to a present conveyance of the copyright although no particular words of conveyance are required. An executory contract to assign is not sufficient,[391] neither will it invalidate a subsequent regular assignment to others.[392] A written agreement "to let A have" a particular drama in discharge of a debt of £10 was held a complete assignment of all rights in the drama.[393] A receipt for money purporting to be paid in respect of an assignment is not in itself an assignment.[394] The copyright will not pass merely by the sale and transfer of possession of any instrument whereby the book may be reproduced such as stereotype blocks.[395] In the event of mesne assignments the burden of proof is in those disputing the title to show that they were not _rite et solenniter acta_;[396] and even in the case of an alleged assignment to a party in the action, a valid assignment has been presumed from a long course of dealing without actual evidence of an assignment in writing.[397] An executory contract or a purported assignment not valid at law will be recognised in equity, and the Court will order specific performance or compel the assignor to allow the assignee to sue in the assignor's name.[398] The assignee cannot sue in his own name in respect of acts of infringement committed before he became proprietor.[399] An assignee cannot, apart from special agreement, prevent his assignor selling against him copies of the book which such assignor has printed before assignment.[400] Probably the assignment of copyright implies a warranty of the right to convey, free from encumbrances, and quiet enjoyment.[401] Co-assignees take as tenants in common and not as joint tenants,[402] and any one or more may maintain an action against a stranger for an infringement of the entire copyright.[403] It follows that one of several co-assignees cannot grant an effective licence without the concurrence of the others.[404] In _Jefferys_ v. _Boosey_[405] Chief Baron Pollock expressed an opinion that if a foreigner resident abroad had a copyright in this country, an assignment valid by the laws of a foreign country would be sufficient, inasmuch as copyright is expressly enacted to be personal property, and would therefore pass according to the laws of the country where the transfer took place. =Partial Assignment.=--It was laid down in _Jefferys_ v. _Boosey_[406] by Lord St. Leonards that copyright was one and indivisible, and could not be partially assigned. If this is correct, any attempt to assign a partial right would operate if at all as a mere licence. This opinion of Lord St. Leonards was in respect of the statute of Anne. It seems to be more or less accepted that under the statute of Victoria copyright is divisible; that there may be partial assignment limited as to place,[407] _e. g._ provincial rights, right to publish in a particular country, or limited as to the nature of the right,[408] _e. g._ the right to dramatize, the right to translate. This view appears to be based on section 13 of the Act of Victoria,[409] which enacts that a registered proprietor may assign his interest or any portion therein by making entry on the register. I do not think that this provision in itself is conclusive or that it necessarily follows that a copyright can be split up and partially assigned. Section 13 may merely mean that the owner can assign a certain undivided share in his copyright to another. Cotton, L. J., in _Trade Auxiliary_ v. _Middlesborough_,[410] refers to Lord St. Leonards' doctrine. He does not disapprove of it, but he distinguishes the case of common ownership in a copyright from the case of a partial assignment as to place. In a case decided in the Supreme Court of New South Wales,[411] it was held that the assignee of a performing right limited to the Australian colonies could sue in his own name for infringement. The Court distinguished between the performing right and the copyright. They said that even although the copyright, in accordance with Lord St. Leonards' opinion, was not divisible the performing right was.[412] In any view of partial assignment I do not think there can be partial assignment as to time.[413] Such an assignment would create an estate in possession and reversion in personal property, and there is no reason for holding that copyright is any exception to the general rule that such an interest cannot be created in personalty. Equitable estates, limited as to time, can no doubt be created as in the case of any other personal property.[414] What purports to be an assignment limited as to time must as a rule be treated as a licence. =Assignment distinguished from Licence.=--The distinction between an assignment and a licence must be carefully observed; questions of the utmost importance will often depend on whether a transaction was one or the other. An assignment is a conveyance of the right denuding the grantor and carrying to the grantee the whole interest including the right to sue and the right to re-assign, whereas a licence is only a personal permission to the grantee to infringe the grantor's right, and carries with it no right of action except in the grantor's name. In determining whether a particular transaction is an assignment or a licence, the first question is whether, on a true construction of the statute, the right purported to be given can be given by assignment or only by licence. If the right is one so limited that it cannot legally be the object of assignment, the transaction must necessarily be a licence; but if it can legally be the object of assignment, the further question arises as to what was the intention of the parties as evidenced by what they have said and done. There may often be clear words to show what was intended, but more often it may never have occurred to the parties that there was any distinction between an assignment and a licence, and the form used will consequently be ambiguous. The principal test in such cases is to examine the contract and the circumstances under which it was made, and see whether or not it bears the impress of a reliance by the grantor on the personal skill or reputation of the grantee. If it does a licence will be presumed rather than an assignment; for instance, in a publishing agreement a licence only will be presumed, since either the pocket or the reputation of the author would suffer if the right of publication were to pass into incompetent hands.[415] SECTION VI.--THE LICENSEE. Whether a bare licensee can bring an action for infringement without joining the legal owner of the copyright is open to doubt. It is submitted that he cannot. The essence of a licence proper is that it is merely a personal relationship between a licensor and a licensee whereby the latter is permitted to infringe the former's copyright. The old cases are not satisfactory. The distinction between partial assignment and licence is not clearly drawn, and the result is a confusion of the respective rights of the assignee and the licensee. In several cases it was said that licensees could sue[416] but _quære_ whether they were not really partial assignees. It has also been said that an owner of copyright who has granted an exclusive licence cannot sue in respect of an infringement which touches only the rights included in such licence, unless such owner has the consent of his licensee.[417] This again, it is submitted, is not a correct statement of the law, and arises from a confusion between a partial assignee and a licensee. In _Taylor_ v. _Neville_[418] the grant of provincial performing rights although called a licence was really treated as an assignment and distinguished from a "merely personal licence." It is submitted that a licence proper is always "merely personal" and that the grantor may sue without consent of his licensee. Where a licence has been granted or when there is doubt as to whether a particular grant is an assignment or a licence, it will always be safer to join both grantor and grantee as co-plaintiffs. A licence will not be presumed to be a sole licence, and unless it is expressly stated, or must necessarily be implied from the circumstances that it is so, the first licensee cannot restrain the licensor from granting, or a second licensee from acting on, a second licence.[419] SECTION VII.--THE EXECUTORS OR ADMINISTRATORS. Copyright is personal property, and descends on the death of an owner to his personal representatives.[420] "Assigns" is expressly interpreted to include one taking by bequest or by operation of law. The common law property in the manuscript passes on the death of the owner in the same way as copyright. A bequest of "all my books" has been held to include valuable manuscript notes left by a physician.[421] SECTION VIII.--THE TRUSTEE IN BANKRUPTCY. Copyright comes within the vesting section of the Bankruptcy Act and passes to the trustee of a bankrupt owner.[422] A bankrupt's unpublished works, probably, cannot be published for the benefit of his creditors without his consent. CHAPTER IV INFRINGEMENT OF COPYRIGHT IN BOOKS SECTION I.--PROHIBITED ACTS, AND REMEDIES. Copyright is defined by the Copyright Act, 1842, as "the sole and exclusive liberty of printing or otherwise multiplying copies." Any invasion of this monopoly is an infringement of copyright. Besides infringement of copyright, _i. e_. illegal copying, the Act makes it an offence to deal in certain ways with unlawful copies. The offences against copyright and the owner's remedies may be conveniently summarised as follows: For the following offences:[423] i. Piratical copying. ii. Importing for sale or hire unlawfully printed books. iii. Selling or hiring, or having in possession for sale or hire, unlawfully printed books, knowing the same to be unlawfully printed.[424] iv. Causing any of the above acts to be done. The remedies[425] are an action in a Court of Record for: 1. Damages and account of profits. 2. Delivery up of copies. 3. Injunction. For the following offences:[426] v. Importing without the consent of the proprietor a foreign copy or copies,[427] _i. e._ printed outside the British dominion. vi. Selling or hiring or having in possession for sale or hire foreign copies knowing them to be unlawfully imported.[428] The remedies are: 1. Seizure and destruction by any officer of Customs,[429] and on conviction before two justices of the peace. 2. £10 for every offence.[430] 3. Double the value of every copy dealt with,[431] and An action in the High Court for 4. An injunction.[432] =Causing to be Printed.=--The prohibition in section 15 is against "printing, or causing to be printed." Thus the author, publisher,[433] and printer of a piratical book are all equally liable, and it is no defence for the publisher, who has employed the printer, or for the printer to say he was acting merely as an innocent agent.[434] There may sometimes be difficulty in determining whether a person who, to a certain extent, is interested in the publication has yet caused it to be printed within the meaning of the section. Thus, in the case of _Kelly's Directories_ v. _Gavin and Lloyds_,[435] the plaintiff had published a directory of merchants and shipping statistics. The defendant Gavin prepared a similar directory, and agreed with the defendants Lloyds for its publication. Lloyds were to print part of it and allow the use of their name in the title and receive some share in the profits. The book was accordingly published under the title of "Lloyds' Diary for Merchants, &c.," and bore on the title-page the statement "printed at Lloyds, Royal Exchange, London." Part of the book was held to be an infringement of the plaintiff's copyright; but it was proved on the trial that that part was not printed by Lloyds, but by a printer employed by Gavin, and that Lloyds had no knowledge of its piratical nature. Byrne, J., found that Lloyds were not partners in the undertaking with Gavin, and that the printing of the piratical portion was not done by the printer as their agent. He therefore held that Lloyds had not "caused" that portion to be printed within the meaning of the section, and dismissed the action as against Lloyds, but without costs, as they had allowed their name to appear on the title-page as printers. =Damages.=--An action for damages lies, irrespectively of sections 15 or 23, for any infringement of copyright as defined by section 2.[436] The damages are damages as for conversion or detinue,[437] and may be matter for inquiry before a master or official referee, but frequently are assessed by the judge on a rough estimate. =Account of Profits.=--An order for an account of profits is an equitable remedy. The defendant is held to have been in possession of the plaintiff's property, and must account for the profits thereof.[438] The account will be for an account of net profits.[439] On an interlocutory application for an injunction the defendant may undertake to keep an account of profits until trial; but, strictly, the right to an account depends on the right to an injunction, and will not be ordered when the case for an injunction fails.[440] If the defendant's work is not wholly piratical, the profits must be apportioned according to the relative value of the piratical with the non-piratical matter. The defendant's profits may not entirely recoup the plaintiff for the damage he has suffered, and in that event he is entitled to an inquiry into damages to supplement his compensation.[441] =Injunction.=--This is also an equitable remedy. It is not specially provided for in the Copyright Act, but being the ancillary remedy in equity for the protection of legal rights, it will be granted or withheld according to the discretion of the Courts in all cases of infringement or other offences against the Act.[442] An interim injunction is usually granted on motion before trial where the plaintiff shows a _primâ facie_ case on affidavit. In doubtful cases weight will be given to the consideration which side is more likely to suffer from an erroneous judgment.[443] The Court will consider the balance of convenience on the one side and the other.[444] The reason for granting an interim injunction is that a continuing infringement might cause damage for which it would be difficult or impossible to assess an adequate money compensation. If the taking is of an inconsiderable part, an interim injunction might not be given, although an injunction might go at the hearing. In urgent cases an interim injunction may be granted _ex parte_. In all interim injunctions the plaintiff is, as a rule, required to undertake to give compensation to the defendant if on trial he fails to establish his case.[445] When such an undertaking is given the defendant is, if he succeed in his defence, entitled to an inquiry as to the damage sustained on account of the interim injunction against him.[446] When there has been undue delay in bringing an action, or where the conduct of the plaintiff has been such as to induce the defendant to believe that his conduct would not be objected to, an interim injunction will probably be refused.[447] A mere expression of opinion by the plaintiff that it would be legal to make a certain use of his work is not a sufficient ground for refusing an injunction if in point of law the use made by the defendant is illegal.[448] "Copyright is not to be lost by the mere expression of opinion."[449] At the hearing of the action a perpetual injunction will be granted on the plaintiff proving his title and infringement. Delay or acquiescence not amounting to fraud will not prevent an injunction going at the hearing when the plaintiff proves his right;[450] "for at the hearing of the cause it is the duty of the Court to decide upon the rights of the parties, and the dismissal of the bill upon the ground of acquiescence amounts to a decision that a right which has once existed is absolutely and for ever lost."[451] When an infringement has been shown the Court will not wait until it can ascertain distinctly what parts have been pirated. It will grant an injunction in general terms restraining the defendant, his agents, servants, or workmen from further printing, publishing, selling, or otherwise disposing of any copy or copies of the defendant's book containing any passage or passages copied, taken, or colourably altered from the plaintiff's book.[452] If it appears that the piratical parts of the defendant's book can be distinguished from that which is innocent, this will be done in the injunction.[453] For a form of injunction against a servant restraining him from using blocks and materials obtained while in the plaintiff's employment, see _Lamb_ v. _Evans_.[454] An injunction will be granted without any inquiry as to actual damages;[455] but there must be probability of damage. In _Borthwick_ v. _Evening Post_,[456] Cotton, L. J., said: "In my opinion, in order to justify the Court in granting an injunction, we ought to be satisfied that there probably will be injury to the pockets of the plaintiff ... an injunction is an equitable remedy, and ought not to be granted unless the Court is satisfied that there is damage to the plaintiff--probable damage, not necessarily damage already suffered--as the result of the defendant's conduct."[457] _Quære_ whether an injunction will be granted to protect the future numbers of a periodical. In _Cate_ v. _Devon and Exeter Constitutional Newspaper Company_,[458] North, J., in granting an injunction to restrain a systematic infringement of a periodical, said: "It is clear that an injunction can only be granted in respect of matters in regard to which the plaintiffs now have the copyright and a present right to sue; they cannot have any protection by injunction to restrain the defendants from publishing hereafter any future entries with respect to which the plaintiffs may possibly ... acquire a copyright, ... but as to which they clearly cannot at this moment have any copyright."[459] In another case, however, where a single illustration had been taken from _Punch_, Kekewich, J., said he saw no objection to the injunction extending to the protection of the contents of future numbers of _Punch_, and granted a perpetual injunction accordingly against the _Ludgate Monthly_.[460] An injunction will not be granted when it is difficult or impossible to enforce it,[461] for instance, when the defendant can readily reprint the same matter, compiling it from original sources.[462] The piracy proved may be so inconsiderable, and so little likely to injure the plaintiff, that the Court may decline to interfere by injunction.[463] =Delivery up of Copies.=--All copies of any books wherein there is copyright and of which entry has been made in the Registry Book and which are unlawfully printed or imported, are deemed to be the property of the registered proprietor of such copyright, and he is entitled after demand in writing to sue for the same in detinue and trover.[464] This right to the delivery up of pirated copies for the benefit of the proprietor of the copyright is purely statutory. Under the Acts of Anne and George III. the proprietor on delivery up was enjoined to damask and make waste paper of the copies.[465] Under the Act of Victoria the proprietor for the first time is entitled to recover such copies for his own use. It has been doubted whether there was any right to delivery up at common law,[466] but the bulk of authority is in favour of the view that there was,[467] although the delivery up was for destruction only.[468] It is a doubtful point whether section 23 applies to unlawful copies made before registration of the plaintiff's title. Fry, L. J., held that it did not,[469] and therefore in the case of such copies ordered delivery up for destruction as a common law remedy, but refused the statutory remedy of delivery up for the plaintiff's benefit. Jessel, M. R., however, differed from this view,[470] and thought that the 23rd section applied to unlawful copies made before the plaintiff's title was registered. It must also be considered doubtful whether section 23 applies where the defendant's book is not merely a reprint of the plaintiff's. In an Irish case O'Brien, J., said: "It would be difficult to maintain that under the 23rd section the proprietor of the copyright in a book would acquire the property of all copies of another book which contained printed therein a few pages or passages of his book."[471] But, whether or not in such a case the plaintiff would be entitled under the section to extraction and delivery up for his benefit of the pirated parts, he is under the general jurisdiction of the Court entitled to delivery up for cancellation.[472] In _Warne_ v. _Seebohm_[473] the order was that the defendant should first state upon oath what copies of the work exist; secondly, extract from those copies which are in his possession or power and deliver up to the plaintiffs for cancellation all passages copied, taken, or colourably imitated from the plaintiffs' book; thirdly, produce to the plaintiffs, if required by them for examination, the copies after the pirated passages have been extracted.[474] _Quære_ whether the Court would order delivery up in an action to which the person who owned the books and paper and at whose expense the printing was executed was not a party.[475] =Customs Act.=--The Customs Laws Consolidation Act, 1876,[476] provides for the seizure of foreign books, and in this respect is somewhat inconsistent with section 17 of the Copyright Act. Section 42 of the Customs Act prohibits the importation of books "first composed or written or printed in the United Kingdom and printed or reprinted in any other country, as to which the proprietor of such copyright or his agent shall have given to the Commissioners of Customs a notice in writing duly declared[477] that such copyright subsists, such notice also stating when such copyright will expire." On reference to section 17 of the Copyright Act it will be noticed that the prohibition there is as to books "reprinted in any country or place outside the British dominions." _Quære_ does the provision in the Customs Act enlarge the protection by the words "printed or reprinted in any other country"? Does this include the colonies? Again it will be noticed that the Copyright Act has no condition as to notice to the Commissioners of Customs. _Quære_ is the notice required by the Customs Act a condition precedent to all protection from unlawful importation, and in this respect does the Customs Act limit the provisions of the Copyright Act, or is the Customs Act merely directory to the Custom-house officials? To be on the safe side the notice should always be given. Section 44 of the Customs Act provides for the keeping of a list of books as to which notice has been given, and section 45 entitles any person who shall have cause to complain of the insertion of any book in such list to apply to a judge at chambers for the rectification thereof. =Every Offence.=--Each separate transaction of sale or importation will constitute a separate offence, for which a separate penalty of £10 will accrue.[478] It would seem that "every such offence" does not, as in the Artistic Copyright Act, mean "or the sale or importation of every copy."[479] =Limitation of Action.=--Section 26 of the Copyright Act, 1842, enacts, "that all actions, suits, bills, indictments or informations for any offence that shall be committed against this Act shall be brought, sued, and commenced within twelve calendar months next after such offence committed, or else the same shall be void and of none effect." It is clear that even although the remedy for one offence is barred, that in no way extinguishes the owner's right, and the owner may sue for subsequent offences;[480] thus although a piratical book has been printed and published more than twelve months before action brought, yet the owner will be entitled to sue in respect of sales, &c., made within the twelve months. In a Scotch case, _Stewart_ v. _Black_,[481] it seems to have been held by Lord President Boyle that the limitation in the 26th section did not apply to an action of damages for infringement, and Malins, V. C., says _obiter_ in _Weldon_ v. _Dicks_,[482] that in his opinion the limitation only applies to an action for penalties. It is submitted that _Stewart_ v. _Black_, if applied to books published after 1842, is wrong, and that the dictum of Malins, V. C., in _Weldon_ v. _Dicks_, is also wrong. The section seems sufficiently clear and applicable to all actions brought in respect of an infringement of copyright. The argument contra seems to be based on the use of the words "for any offence that shall be committed," from which it is argued, that penalties only are pointed at. Offence, however, is used in the 15th section as applicable to infringement of copyright not involving penalties. In cases where the Public Authorities Protection Act applies, the shorter limitation of six months must be substituted.[483] =Pleading.=--The defendant is required to give to the plaintiff a notice in writing of any objections on which he means to rely on the trial of the action. If the defendant intends to dispute that the plaintiff is author or first publisher, or that he is proprietor, he must state the name of the person whom he alleges to be the author or proprietor, together with the title of the book and the time when, and the place where, such book was first published.[484] It has been said to be sufficient, in the case of an old publication, to state the year of first publication without stating the day and month in the notice of objections.[485] The notice of objections must be specific, and give full notice of the nature of the defence.[486] If the defence is that the book has not been registered at all, that must be stated.[487] If a faulty registration is relied on, it is not sufficient to deny that the book has been duly registered; the notice must state what the particular objection to the registration is.[488] If the plaintiff's title is denied, it will not do merely to state that the proprietor "is some person unknown, but not the plaintiff;"[489] the full particulars as required by the section must be given.[490] In objecting to the registration, however, it is not necessary for the defendant to state what the correct entry should he. Thus if he says the time of first publication is wrongly entered, he does not require to specify the true date of first publication.[491] It is unnecessary to deliver a separate "Notice of Objections," as was the practice at one time,[492] it is sufficient if it is incorporated in the defence. A suggestion of defective title contained in an affidavit would not be sufficient.[493] If a defective title is apparent from the plaintiff's own statement of claim or evidence, the action would probably be dismissed by the Court, _proprio motu_, even although the defendant had not given notice of objection.[494] Leave to amend the pleadings and take further objection may be allowed on conditions under the judicial discretion given by the Rules of the Supreme Court,[495] but if the objection be merely technical, the Court will not give leave to amend,[496] unless, perhaps, the plaintiff had otherwise fair notice that the objection might be taken.[497] It has been held by a County Court judge that section 16 of the Copyright Act does not apply to proceedings in the County Court, as that Court was created after the date of the Act.[498] The plaintiff may be ordered to specify the particular passages which he is prepared to prove have been pirated from his work.[499] =Evidence.=--The great test of piracy is coincidence of blunders, and when some passages are proved by the recurrence of blunders to have been copied, other passages which are the same with passages in the original book are presumed _primâ facie_ to be likewise copied, although no blunders occur in them.[500] It will greatly prejudice the defendant if his manuscript is not produced or accounted for.[501] A denial by the defendant that he has made any use whatsoever of the plaintiff's work raises a presumption of piracy if it is shown that he must have made some use of it, however fair.[502] To prove that A on a certain date heard certain music performed from printed sheets, is no evidence that the music was published as a book at that date.[503] =Discovery.=--The defendant is entitled to administer interrogatories to ascertain the extent of the sale of plaintiff's book, and to enable the defendant to ascertain the damages and pay into Court.[504] The plaintiff is entitled to interrogate as to the original sources from which the defendant alleges his work to have been compiled.[505] =Mode of Trial.=--Formerly the question of piracy or no piracy and the amount of damages was frequently tried by jury, but now the trial of the action is almost invariably before a judge alone, either in the Chancery or the King's Bench Division. Either party may ask for a trial by jury, but not as a matter of right, it is a matter entirely in the discretion of the Court and semble that the onus lies on the party applying for a jury to show that the cause could be more conveniently tried in that way.[506] =Costs.=--In copyright as in other actions a successful party may be refused his costs. The plaintiff will not get his costs if he has unduly acquiesced in the defendant's conduct, and thereby induced the defendant to incur expenses,[507] or if after acquiescence and delay an action is brought without fair warning.[508] So, too, if the plaintiff has suffered no real harm, but brings an action for the purpose of making money out of it;[509] and in one case where the Court was of opinion that although the plaintiff was entitled to nominal damages, the action was one which should never have been brought, the plaintiff was ordered to pay the defendant's costs as well as his own.[510] If the plaintiff has increased the expenses by raising other questions in which he has failed, the costs will be apportioned.[511] A defendant, although successful, may lose his costs or part of them if he has acted in such a way as was not fair and right as between man and man;[512] for instance, if he has made some use of the plaintiff's book, but does not acknowledge it at the hearing.[513] A successful defendant may lose his costs if in his defence he challenges the plaintiff's title and fails in his attack, but wins on the question of piracy. If a defendant by his conduct in lending his name to a publication has led the plaintiff to assume that he "caused it to be printed," he will probably not be allowed his costs.[514] A defendant may also be refused his costs if the Court is of opinion that he brought the action on himself by sailing too near the wind.[515] The Court will not encourage a plagiarist or one who has made an illiberal use of another's work, even although he has not actually committed a piracy. Costs have also been refused where, although the defendant succeeded, his defence was a merely technical one, such as a defect in registration.[516] If copyright is claimed in part of a book only, the whole of which is registered without distinction, the notice of motion or statement of claim should specify the parts in which copyright is claimed, or the plaintiff may be liable in costs unnecessarily incurred by the defendant.[517] SECTION II.--WHAT IS A PIRATICAL COPY. Literary property may be invaded in three ways: (i) Open Piracy; (ii) Literary Larceny; (iii) Commercial Fraud.[518] With the first there is no difficulty once a title has been established and the pirate caught. It consists in a bodily reprinting and publishing of the whole or of large portions of a copyright book. The third is not properly speaking an infringement of copyright. It is the invasion of the common law rights of an author or publisher, and will be dealt with later. The second, literary larceny, gives rise to many difficult questions and is dealt with in this section. The question put by the law is, in its simplest form: "Is the alleged infringement an unauthorised copy of the whole or part of a copyright work?" The statute does not attempt to define what a copy is, and such rules as there are for determining whether one work is a copy of another are entirely derived from the case law on the subject. It is impossible to lay down any very definite rules as to infringement; it is really a question of fact not of law; and although now almost invariably tried by a judge sitting alone, it was at one time constantly referred to the decision of a jury. The judges either in giving their own decisions or in directing juries have from time to time laid down general rules as an aid to determining these questions of fact. The Copyright Acts have always received a liberal interpretation in favour of the author, and against the plagiarist. "If we can construe the Act so as to promote fair and honest dealing, such a construction is to be preferred."[519] =What is a Copy.=--A copy is that which will provide a substitute for the whole or for a substantial part of the original book.[520] The owner of the copyright has the sole and exclusive liberty of printing or otherwise multiplying copies. It has been held that the right is not in any way limited by section 15 of the Copyright Act, 1842, which section applies its remedy only to cases where the subject-matter is multiplied by printing.[521] Thus copies produced by writing,[522] lithography,[523] type writing,[524] photography,[525] are copies within the meaning of the Act. The symbols used matter little in themselves; the question in each case is whether the defendants are multiplying copies.[526] It is not necessary that the copy should be primarily intended to be used for the same purpose as the original. Thus a copy in shorthand characters intended for instruction in shorthand was held to be an infringement of a story in a magazine.[527] But the copy must provide a reasonable substitute for the whole or part of the original work. A perforated scroll used for the mechanical reproduction of music from an instrument is not a copy, since no reasonable being would use it as a substitute for the original sheet of music.[528] =A Substantial Part must be Taken.=--In other words, _De minimis non curat lex_. "Part is not necessarily the same as particle, and there may be a taking so minute in its extent and so trifling in its nature as not to incur the statutable liability."[529] In _Sweet_ v. _Benning_,[530] Jervis, C. J., said: "It is undoubtedly exceedingly difficult, perhaps absolutely impossible, to lay down any general rule upon this subject. I do not assent to the argument that every publication of a portion of a work in which there is subsisting copyright will afford a ground of action: it is a question of degree which must depend upon the circumstances of each particular case." In _Chatterton_ v. _Cave_,[531] Brett, J., said: "Unless there is a taking of a material and substantial part there is no infringement of copyright. It is true that the question under the second section is not only whether the whole production has been copied, but also whether a part has been copied; but by a part this section must mean a material and substantial part."[532] In _Chatterton_ v. _Cave_,[533] two small points or incidents were taken from one drama by the author of another, and it was held that the taking was not of a substantial part. In _Pike_ v. _Nicholas_,[534] in the case of two rival essays on the same subject, one quotation from a classical author was taken by the defendant directly from the plaintiff's book; Lord Hatherley, L. C., and Giffard, L. J., were of opinion that it would not do to show merely one or two passages; some material part of the book must be shown to have been taken. The question is not altogether one of quantity, it is perhaps mainly one of quality,[535] and depends on the character of the work and the relative value of the material taken.[536] "The question of the extent of appropriation which is necessary to establish an infringement of copyright is often one of extreme difficulty: but in cases of this description the quality of the piracy is more important than the proportion which the borrowed passages bear to the whole work."[537] "It ought to be clearly established that, looking at the works as a whole, there has been a substantial appropriation by the one party of the independent labour of the other before any proceeding on the ground of copyright can be justified."[538] "When it comes to a question of quantity it must be very vague. One writer might take all the vital[539] part of another's book, though it might be but a small proportion of the book in quantity. It is not only quantity, but value that is always looked to."[540] "The principle of the cases is that, when one man for his own profit puts into his work an essential part of another man's work from which that other may still derive profit, or from which but for the act of the first he might have derived profit, there is evidence of piracy."[541] Although it is no excuse for infringement to say that the matter taken has been improved upon or added to, yet there may be so much new matter that the part borrowed becomes so insignificant that the Courts will not interfere. In _Mawman_ v. _Tegg_,[542] Lord Chancellor Eldon says: "After the quantity of matter which has been copied has been ascertained, the quantity of matter not piratical with which the piratical matter has been intermixed is still a circumstance of great importance." The materiality of the part taken may sometimes be judged more by the proportion which it bears to the defendant's work than to the work from which it is taken. Thus in _Neale_ v. _Harmer_[543] the plaintiff had prepared and published an elaborate work intituled "The Abbey Church of St. Alban," containing about 200 architectural drawings. The defendant took and published three of these in a magazine article on St. Alban's Abbey, and they were the only strictly architectural drawings illustrating the article. It was held to be an infringement. Kekewich, J., said in his judgment: "It is said that these drawings did not form a material part of the plaintiff's work. In one sense that is true. The plaintiff's work is a large one, and it is a very learned work. The test is not so much what proportion of the plaintiff's work had been taken, but rather what portion of the defendant's work is the plaintiff's." In questions of amount it is material to inquire whether the matter was taken so as to compete with the plaintiff's work,[544] but an infringement need not necessarily be shown to be in competition with the work infringed, since it is sufficient if the defendant has made such a use of part of the plaintiff's work as the plaintiff might himself have done. If matter is taken regularly and systematically by one periodical from another, and particularly if it is taken and claimed to be taken as of right, a very small amount will suffice.[545] As to a claim of right, North, J., said in _Cate_ v. _Devon_: "That of itself is sufficient to put the plaintiff in the wrong in the action and get over any question as to the amount of matter actually taken."[546] Although the Court will not grant a remedy for a trifling infringement, it will not refuse an injunction merely on account of the minute inquiries into detail which, in some cases, may be necessary to establish even an extensive piracy.[547] =No Animus Furandi need be Proved.=--In _Cary_ v. _Kearsley_[548] Lord Ellenborough's judgment contained a reference to the _animus furandi_ in cases of infringement, from which a mistaken idea seems to have arisen that in all cases of infringement the _animus furandi_ must be proved.[549] Lord Ellenborough said: "That part of the work of one author is found in another is not in itself piracy or sufficient to support an action; a man may fairly adopt part of the work of another; he may so make use of another's labours for the promotion of science and the benefit of the public, but having done so the question will be, was the matter so taken used fairly with that view and without what I may term the _animus furandi_."[550] This did not mean that in every case of infringement alleged it was necessary to prove an _animus furandi_ or guilty intention. Lord Ellenborough in a subsequent case[551] said: "The intention to pirate is not necessary in an action of this sort; it is enough that the publication complained of is in substance a copy whereby a work vested in another is prejudiced. If A takes the property of B the _animus furandi_ is inferred from the act."[552] In _Scott_ v. _Stanford_,[553] Page Wood, V. C., after quoting the above passage from Lord Ellenborough's judgment in _Cary_ v. _Kearsley_,[554] said: "It is urged that this is a case in which no _animus furandi_ can be found on the part of Mr. Hunt, who has taken these statistics in perfect good faith and with the fullest acknowledgment[555] in his book of the source from which they are derived. But if in effect the great bulk of the plaintiff's publication--a large and vital portion of his work and labour--has been appropriated and published in a form which will materially injure his copyright, mere honest intention on the part of the appropriator will not suffice, as the Court can only look at the result and not at the intention in the man's mind at the time of doing the act complained of, and he must be presumed to intend all that the publication of his work effects."[556] Although the _animus furandi_ does not require to be proved, it is a useful aid to proof, and where it appears piracy is more readily presumed.[557] =Taking not necessarily for Profit.=--The prohibition in section 15 of the Copyright Act, 1842, is against printing or causing to be printed "either for sale or exportation," but as this has been held not to confine piracy to copying by means of printing, neither does it confine it to copying for sale or exportation, and the purpose for which the copy when made is to be used is immaterial. In _Alexander_ v. _Mackenzie_[558] the Society of Writers to the Signet in Edinburgh prepared for the use of their own members a book of forms taken largely from a similar copyright work. The Court of Session held that this was an infringement of copyright. A catalogue of books, although not intended for sale, may be an infringement of another catalogue;[559] manuscript copies of a copyright song distributed exclusively among the members of a philharmonic society,[560] and a telegraphic code distributed only among the agents of a shipping firm have also been prohibited.[561] In _Ager_ v. _The P. & O._, Kay, J., said: "It has long been settled that multiplying copies for private distribution among a limited class of persons is just as illegal as if it were done for the purpose of sale." It is submitted that making a single copy for private use is an infringement. =Copying may be Indirect and Unintentional.=--If matter in which copyright exists is taken it is immaterial that the appropriation was made not directly from the original work but indirectly through some other work, copyright or non-copyright, authorised or unauthorised. Thus a book may be infringed by retranslating or copying a translation of it,[562] and a drama may be infringed by dramatizing a novel founded on the drama.[563] In _Cate_ v. _Devon and Exeter Constitutional Newspaper Company_,[564] it was argued that an indirect copying could not be considered an infringement, because since the copyist is ignorant of what works he is indirectly copying, he cannot know whether or not he is infringing any copyright books, but this argument was rejected. Ignorance on the part of the copyist does not excuse him from the consequences of his act.[565] =Custom of Trade= has been pleaded in defence of what was otherwise clearly a piracy. A custom was alleged whereby provincial newspapers were entitled to make large extracts, without criticism, from articles in magazines which were sent to them;[566] and in another case "a usual practice" among publishers of magazines to take articles from each other[567] was pleaded. It is clear that no such customs can be admitted. In _Walter_ v. _Steinkopff_[568] the _St. James' Gazette_ alleged that there was a universal understanding among journalists and newspaper proprietors that paragraphs of news may be quoted verbatim by one daily paper from another without express consent, provided (1) the source was acknowledged, (2) the papers were not direct rivals, (3) there is give and take between the papers, and (4) no expressed objection. The _St. James' Gazette_ took articles from the _Times_ on this alleged footing. North, J., held that they had not complied with these conditions, and that even if they had it would have been no defence. "The plea of the existence of such a habit or practice of copying, as is set up, can no more be supported when challenged than the highwayman's plea of the custom of Hounslow Heath."[569] =Fair Use.=--When an author writes on a subject in which there are common sources of information he must do the work of research and compilation for himself, and the only use he can lawfully make of a prior copyright work on the same subject is-- i. Using the information or the ideas contained in it without copying its words or imitating them so as to produce what is substantially a copy. ii. Making extracts (even if they are not acknowledged as such) appearing under all the circumstances of the case reasonable in quality, number, and length, regard being had to the objects for which the extracts are made and to the subjects to which they relate. iii. Using one book on a given subject as a guide to authorities afterwards independently consulted by the author of another book on the same subject. iv. Using one book on a given subject for the purpose of checking the results independently arrived at by the author of another book on the same subject.[570] _No one can monopolize a Field of Labour._--Although an author has been the first to deal with a particular subject, his priority gives him no exclusive right therein.[571] Any one else can do exactly the same as he has done. If a man draws a map of a newly-discovered island, or writes a book on the habits of its natives, he acquires no right to prevent any one from competing with him in the publication of maps and books dealing with that island.[572] His only right is to prevent any one else from taking matter from his book. In one of the older cases it was suggested that there was a usage among booksellers--a sort of comity among them--by which if one preoccupied a certain subject he was considered a sort of proprietor.[573] In that case Lord Eldon repudiated the idea that such could be the law, and now no monopoly of the kind could be suggested. "All human events are equally open to all who wish to add to or improve the materials already collected by others making an original work."[574] _No Infringement to take Facts._--It is no infringement to state a fact or an opinion which another man has stated for the first time: but you must not take his mode of expression or his selection or arrangement of facts which he has thought proper to state. Thus there is no copyright in a mere piece of news, for instance, "The Emperor of China is dead." If one newspaper proprietor received a telegram from abroad to that effect, another could take the information as published and print it in his newspaper. But although there is no copyright in news as such, the smallest taking of a selection or arrangement of news will be prohibited. In a case in Victoria[575] the defendants had taken the plaintiff's telegrams, rearranged them, and altered the expression, and yet they were held to have been guilty of an infringement. _No Infringement to take the General Scheme or Idea of another Book or the Theories therein._--Copyright does not extend to ideas or schemes or systems or methods: it is confined to their expression; and if their expression is not copied the copyright is not infringed.[576] Thus in _Jarrold_ v. _Houlston_,[577] Page Wood, V. C., said that even although Dr. Brewer's "Guide to Science," which purported to give popular scientific information under various headings in the form of question and answer, had been the first book of the kind, there was nothing to prevent another person from originating another book in the same general form, provided he did so from his own resources.[578] In _Pike_ v. _Nicholas_, the case of two rival historical essays on "The Origin of the English Nation," James, V. C., said: "There is no monopoly in the main theory of the plaintiff, or in the theories and speculations by which he has supported it, nor even in the use of the published results of his own observations."[579] A careful distinction must be drawn between the taking of a scheme and the taking of it as applied to certain material, _i. e._ the taking of the expression. For instance, in _Kelly_ v. _Morris_,[580] the plaintiff had adopted a "very ingenious form of arrangement" in his "Street Directory." The defendant was held to have infringed the plaintiff's copyright by taking his list of streets from the plaintiff's work. The only thing he was entitled to do was to adopt the "ingenious form of arrangement" and apply it for himself. _Every Author must do his own Work._--In _Longman_ v. _Winchester_,[581] the action being for the infringement of copyright in a court calendar, Lord Eldon drew an analogy to the case of a map describing a particular county and a map of the same county afterwards published by another person, which, if the description be accurate in both, must be very much the same, yet he said: "It is clear the latter publisher cannot on that account be justified in sparing himself the labour and expense of actual survey." In _Lewis_ v. _Fullarton_,[582] Lord Langdale, M. R., said: "Any man is entitled to write and publish a topographical dictionary and to avail himself of the labours of all former writers whose works are not subject to copyright, and of all public sources of information: but whilst all are entitled to resort to common sources of information, none are entitled to save themselves trouble and expense by availing themselves for their own profit of other men's works still subject to copyright and entitled to protection."[583] In the case of Dr. Brewer's "Guide to Science,"[584] Page Wood, V. C., said: "In publishing a work in the form of question and answer on a variety of scientific subjects the defendant had a right to look to all those books which were unprotected by copyright, and to make such use of them as he thought fit by turning them into questions and answers. He had also a further right if he found a work like Dr. Brewer's, and perusing it was struck by seeing--as I think has been the case in the present instance--that the author had been led up to particular questions and answers by the perusal of some other work to have recourse himself to the same work, although possibly he would not have thought of doing so but for the perusal of the plaintiff's book.... It would also be a legitimate use of a work of this description if the author of a subsequent work, after getting his own work with great pains and labour into a shape approximating to what he considered a perfect shape, should look through the earlier work to see whether it contained any heads which he had forgotten."[585] In _Hotten_ v. _Arthur_[586] the same judge held that the defendant had infringed the plaintiff's descriptive catalogue of books for sale: "The only fair use you can make of the work of another of this kind is where you take a number of such works, catalogues, dictionaries, digests, &c., and look over them all, and then compile an original work of your own founded on the information you have extracted from each and all of them: but it is of vital importance that such new work shall have no mere copying, no merely colourable alterations, no blind repetition of obvious errors." In _Kelly_ v. _Morris_,[587] a directory case, there is another clear dictum from the same judge: "In the case of a dictionary, map, guide-book, or directory, when there are certain common objects of information which must, if described correctly, be described in the same words, a subsequent compiler is bound to set about doing for himself that which the first compiler has done. In case of a road-book he must count the milestones for himself. In the case of a map of a newly-discovered island he must go through the whole process of triangulation just as if he had never seen any former map; and generally he is not entitled to take one word of the information previously published without independently working out the matter for himself so as to arrive at the same result from the same common sources of information, and the only use he can legitimately make of a previous publication is to verify his own calculations and results when obtained. So in the present case the defendant could not take a single line of the plaintiff's directory for the purpose of saving himself labour and trouble in getting his information.... What he has done has been just to copy the plaintiff's book and then send out canvassers to see if the information so copied was correct.... The work of the defendant has clearly not been compiled by the legitimate application of independent personal labour."[588] In _Scott_ v. _Stanford_,[589] Page Wood, V. C., held that certain tables of statistical returns in the coal market had been pirated. In his judgment he said: "The defendant, after collecting the information for himself, might have checked his results by the plaintiff's tables, but that is a widely different thing from this wholesale extraction of the vital part of his work. No man is entitled to avail himself of the previous labours of another for the purpose of conveying to the public the same information, although he may append additional information to that already published." In _Morris_ v. _Ashbee_,[590] Giffard, V. C., held that the copyright in a business directory had been infringed in so far as the compilation and arrangement of the advertisements and names of traders were taken from the plaintiff's directory. In giving judgment he commented on _Kelly_ v. _Morris_,[591] pointing out that the decision in that case was not based solely on the fact that the information was reprinted bodily by the defendants and then verified when possible: "The decree is general in its terms, following _Lewis_ v. _Fullarton_,[592] and the substance of the judgment is that in a case such as this no one has a right to take the results of the labour and expense incurred by another for the purposes of a rival publication, and thereby save himself the expense and labour of working out and arriving at these results by some independent road." In reference to the case before him the Vice-Chancellor said: "It is plain that it could not be lawful for the defendants simply to cut the slips which they have cut from the plaintiff's directory and insert them in theirs. Can it be lawful to do so because in addition to doing this they sent persons with the slips to ascertain their correctness? I say, clearly not. Then, again, would their acts be rendered lawful because they got payment and authority[593] for the insertion of the names from each individual whose name appeared in the slips? And to this again I answer, clearly not. They had no right to make the results arrived at by the plaintiff the foundation of their work or any material part of it, and this they have done."[594] In _Morris_ v. _Wright_,[595] another case of alleged infringement of the same business directory, Giffard, L. J., distinguished it from _Kelly_ v. _Morris_[596] and _Morris_ v. _Ashbee_,[597] inasmuch as the plaintiff's work had only been used by the defendant as a guide to original sources. He held that there was no infringement. Referring to the passage quoted above from the judgment of Page Wood, V. C., in _Kelly_ v. _Morris_,[598] he said: "This passage does not mean that a subsequent compiler may not look into the book for the purpose of ascertaining whether it was worth his while to call upon that person or not, but it means that he may not take that particular slip and show that to the person and get his authority as to putting that particular slip in."[599] So also quotations from and references to previous authors must not be taken bodily from a rival work. They may be used as a guide and as a guide only. Lord Hatherley, L. C., in _Pike_ v. _Nicholas_,[600] a case of rival historical works on the same subject, said: "Although the defendant might have been led to look more minutely into _Prichard_ than he otherwise would have done by referring to the plaintiffs work, still the plaintiff could not say, 'I, having found these passages in _Prichard_, will prohibit all the world who may find the same passages from making use of them.' The moment he had given that degree of light to the defendant which led him to refer to that common source, if the defendant did really and _bonâ fide_ look at that common source, he did all that this Court required him to do. He must not simply copy the passage from the plaintiffs book, but, having been put on to the track, and having looked at that particular part of the book which the plaintiff led him to, he was entitled to make use of every passage from that author which the plaintiff had made use of."[601] In this case the quotation was proved to have been taken directly from the plaintiff's work, but this was considered to be so small a taking that the bill was dismissed, though without costs, the Court being satisfied "that the book of the defendant was his own composition in this sense, that wherever he got the materials from they were worked up by him into his own language."[602] It is no excuse for piracy to say that with a little labour the copyist could have produced identically the same result.[603] The fact that the result may be identical is a reason for not making a new book, but it is no reason for copying another's book. _Work with a Different Object._--An author is much less restricted in the use which he may make of a previously published copyright book if such book is of an entirely different nature or has a different scope or object from his own work. Considerable portions may then be taken for the purpose of comment, criticism, or illustration. Lord Eldon suggested in one case[604] that a copyright map might be taken bodily for the purpose of insertion in a book giving an historical account of all the different maps of a particular district. In _Bradbury_ v. _Hotten_,[605] Kelly, C. B., suggested that a picture might be reproduced amongst a large collection published for an entirely different object from that which the first publisher had in view. "We must consider in each case the intent of the copyist and the nature of the work. A traveller publishes a book of travels about some distant country like China. Amongst other things he describes some mode of preparing food in use there. Then the compiler of a cookery book republishes the description. No one would say that was a piracy. So, again, an author publishes a history illustrated with woodcuts of the heads of kings, and another person writing another history of some other country finds occasion to copy one of these woodcuts. That again would not be a piracy."[606] These _obiter dicta_ illustrate sufficiently well the distinction between taking for a rival work and taking for an entirely different object; it is probable, however, that some of them go too far and tend to follow the mistake of the older view of infringement in looking more to the value of the work done by the plagiarist than to the value of the material taken. As authoritative _dicta_ they must, therefore, be accepted with caution. The best test of infringement or no infringement in a taking of this kind is to inquire whether the subsequent work by reason of the taking provides a substitute for the whole or any substantial part of the prior publication. In _Bradbury_ v. _Hotten_,[607] nine cartoons, illustrative of the career of Napoleon III., were published in _Punch_ in nine several weekly numbers. The defendants published a volume entitled "Story of the Life of Napoleon, as told by popular Caricaturists of the last thirty years," which contained among numerous other illustrations taken from French and English comic journals the nine cartoons first produced in _Punch_. This was held to be an infringement of the copyright in _Punch_. In _Nicols_ v. _Pitman_[608] the defendant published in an educational work for the purpose of instruction in shorthand writing a lecture delivered by the plaintiff on "The Dog as the Friend of Man." The Court held there was an infringement, because although the lecture was reproduced in shorthand characters, it might by those who could read shorthand be reasonably used as a substitute for the lecture printed in ordinary characters. A compiler of an encyclopædia or similar work would probably be allowed to quote to a certain extent from copyright monographs, but this must not be carried to such an extent as to supersede the original work.[609] Several cases have been before the Courts on the verbatim copying of law reports in whole or in part into legal treatises of various kinds. The collection of all the reports on a particular branch of law such as "Poor Law"[610] or "Registration of Voters,[611] is an infringement of copyright if they are copied verbatim from previously published copyright reports. This will be so even although they are collected from the reports of many different reporters.[612] In _Sweet_ v. _Benning_,[613] a digest compiled by taking verbatim the head notes from copyright law reports and arranging them under appropriate titles was held to be an illegal publication, the Court being of opinion that the defendant had been guilty of an abuse of the fair right of extract, which the law allows for the purpose of comment, criticism, or illustration. No doubt in text-books large portions of the head notes, arguments of counsel, and judgments may be taken verbatim. In an ordinary legal text-book it would require a very free use of verbatim quotation to found the necessary argument that the text-book provided even to the smallest extent a substitute for the original reports. A more difficult question arises where volumes of leading cases are published, the cases being reproduced verbatim from the original reports but with extensive notes and comment. In _Saunders_ v. _Smith_,[614] the Court refused to decide whether "Smith's Leading Cases" constituted an infringement of the original reports, judgment going for the defendants on the ground of acquiescence. In the Irish case of _Hodges_ v. _Welsh_[615] a similar problem was suggested but not decided. The better view probably is that such a wholesale taking is an infringement of the copyright of the original reporters. _Extract for Purpose of Criticism._--Lord Eldon, in _Mawman_ v. _Tegg_,[616 says: "Quotation is necessary for the purpose of reviewing, and quotation for such a purpose is not to have the appellation of piracy affixed to it; but quotation may be carried to the extent of manifesting piratical intention." Considerable quotation may be made for the _bonâ fide_ purpose of criticising a copyright book;[617] in one case[618] nearly a quarter of a controversial article in a magazine was quoted in a reply thereto published in another magazine, and the Court held that this constituted no infringement, as the extracts were clearly inserted for the purpose of criticism and argument. The question is whether so much of the original work is extracted that the review substantially communicates the same knowledge as the book reviewed.[619] Thus in _Campbell_ v. _Scott_,[620] the defendant published "The Book of Poets" containing, _inter alia_, an essay and biographical notice of the poet Campbell, and, as the defendant said, by way of illustrating the poet's works, a large number of his poems and extracts therefrom were appended to the biographical notice without any particular observations in the way of notes to individual pieces or extracts. This was clearly an infringement of the poet's copyright. In a similar case, _Smith_ v. _Chatto_,[621] the defendants published a book entitled "Thackerayana." It purported to be a critical essay on the life and works of Thackeray, and contained extensive quotations from his writings, prefaced and interspersed with comments by the writer of the book. Hall, V. C., held in fact that the defendants had inserted the extracts for the purpose of increasing and enhancing the value of their book, and that they had therefore infringed the copyright in Thackeray's works. _Improvement or Addition of New Matter no Excuse._--In the earlier cases of taking material from a rival publication if it was shown to have been greatly improved and added to, this was accepted as an excuse for the piracy, on the ground that a new and more useful work had been given to the public. Thus in _Sayre_ v. _Moore_[622] Lord Mansfield said: "If an erroneous chart be made, God forbid it should not be corrected even in a small degree if it thereby become more serviceable and useful for the purposes to which it is applied." In _Cary_ v. _Kearsley_,[623] Lord Ellenborough said: "While I shall think myself bound to secure every man in the enjoyment of his copyright, one must not put manacles on science." In _Martin_ v. _Wright_,[624] Shadwell, V. C., says: "Any person may copy and publish the whole of a literary composition provided he writes notes upon it so as to present it to the public connected with matter of his own." The theory of these early cases on infringement seems to have been--colourable alteration is not to be allowed, but no check must be put on the taking of material when it is taken _bonâ fide_ in the interests of scientific or literary knowledge. Gradually, however, the Courts in questions of infringement came to look more to the interests of the author than to those of the public, and regarded the law of copyright more as a means of securing rights of property to the individual than as an unnatural monopoly created for the purpose of encouraging and developing literary effort. Thus in _D'Almaine_ v. _Boosey_,[625] in 1835, it was held to be an infringement to publish the music of an opera in the form of waltzes and quadrilles, and this notwithstanding that these waltzes and quadrilles would, if taken from the music of a non-copyright opera, have been protected as original works.[626] Since then many cases have followed on the same lines, and no addition, correction, or improvement will now be accepted as an excuse for taking a material part of a copyright publication.[627] But although improvement and addition is no excuse for taking a substantial portion of another author's work, the fact that there has been such improvement and addition is not to be entirely ignored in questions of infringement. It may be an important factor in determining whether or not there has been a taking of a substantial part.[628] We have seen that to determine that question the two works must be taken as a whole and their relation to one another considered, and particularly the relative value of the material taken.[629] _Dramatization of a Novel._--The representation on the stage of a dramatized version of a copyright novel is not in itself an infringement of copyright in such novel, since copyright only prohibits the reproduction of copies, and representation on the stage does not necessarily imply that a copy of the whole or any material part of the novel has been made.[630] But if in dramatizing any substantial passages are taken from the novel, it is an infringement of copyright to print and publish the drama,[631] and in _Warne_ v. _Seebohm_[632] Stirling, J., held that the making of four manuscript or typewritten copies of a drama taken from a copyright novel--one for the Lord Chamberlain and the other three for use in representation--constituted an infringement of the copyright in the novel. In this case, as in _Tinsley_ v. _Lacy_,[633] considerable passages in the play had been extracted verbatim from the novel. Whether if no actual sentences be taken it is an infringement of copyright to take the characters, the sequence of events, and scenes, in short, the plot, is doubtful. In _Warne_ v. _Seebohm_ it was suggested by Stirling, J., in his judgment, that a novel might be lawfully dramatized if a few copies of the novel were purchased and a drama compiled therefrom by cutting out and pasting in the passages which it was thought desirable to take. This, however, would involve a copying of the arrangement of scenes and events, and it is suggested that even that might be an infringement. _Abridgments._--Probably an abridgment in the ordinary sense of the word, that is, the reproduction of a book in a shorter form, retaining the general scheme and arrangement, and the sequence of ideas, would now be held to be an infringement.[634] In the earlier cases, which tend to excuse a taking by reason of the utility of additional work bestowed upon the material taken, an abridgment is recognised as a lawful use of a copyright book. In 1740 Lord Hardwicke, L. C., in dealing with an alleged abridgment of Sir Matthew Hale's _Historia Placitorum Coronæ_,[635] said: "Where books are colourably shortened only they are undoubtedly within the meaning of the Act of Parliament, and are a mere evasion of the statute and cannot be called an abridgment. But this must not be carried so far as to restrain persons from making a real and fair abridgment, for abridgments may with great propriety be called a new book, because not only the paper and print but the invention, judgment, and learning of the author is shown in them, and in many cases are extremely useful though in some instances prejudicial by mistaking and curtailing the sense of an author." It will be noticed how completely this argument is founded on the idea that an author may take the materials of another so long as he sufficiently modifies it by such addition, extraction, or correction as to give it the character of a new work. It is a good argument in favour of a plaintiff who has dealt with a non-copyright work and desires protection, but it would not now be considered a sound answer to a charge of infringement. Since _Gyles_ v. _Wilcox_[636] it seems to have been accepted as law that what was called a fair abridgment would be allowed.[637] In _Dodsley_ v. _Kinnersley_[638] the Court went so far as to admit as a fair abridgment a magazine article containing about one-tenth of Dr. Johnson's "Prince of Abyssinia." Selections were, it appears, taken and reproduced verbatim. The same doctrine as to abridgments was repeated in _D'Almaine_ v. _Boosey_:[639] "It is a nice question what shall be deemed such a modification of an original work as shall absorb the merit of the original in the new composition. No doubt such a modification may be allowed in some cases, as in that of an abridgment or digest. Such publications are in their nature original. Their compiler intends to make of them a new use, not that which the author proposed to make. Digests are of great use to practical men, though not so, comparatively speaking, to students. The same may be said of an abridgment of any study, but it must be a _bonâ fide_ abridgment, because if it contains many chapters of the original work or such as made that work most saleable, the maker of the abridgment commits a piracy."[640] When the view as to plagiarism being excusable on account of its utility began to alter, and the Courts began to look more to what was taken and the value of it than to what labour was expended on it afterwards, the view taken of abridgments began to change too. In 1844 one of Dickens' Christmas stories was abridged evidently much in the same way as Dr. Johnson's tale in _Dodsley_ v. _Kinnersley_.[641] Knight Bruce, V. C., held that there was an infringement:[642] "The defendant has printed and published a novel, of which fable, persons, names, and characters of persons, the age, time, country, and scene are exactly the same, the style of language in which the story is told is in many instances identical, in all similar, except where certain alterations by way of extension or substitution have been made, as to which whether they improve or do not improve upon the original composition it is not necessary for me to express any opinion. Now this has been said to be an abridgment, and as an abridgment to be protected. I am not aware that one man has the right to abridge the works of another. On the other hand, I do not mean to say that there may not be an abridgment which may be lawful, which may be protected; but to say that one man has the right to abridge and so publish in an abridged form the work of another without more is going much beyond my notion of what the law of this country is." In 1864 Lord Hatherley, then Sir William Page Wood, said:[643] "The Court has gone far enough in the direction of sanctioning fair abridgments; and it is difficult to acquiesce in the reason sometimes given that the compiler of an abridgment is a benefactor to mankind by assisting in the diffusion of knowledge." _Translations._--There are two recent decisions in India to the effect that the translation of an English book into an Indian language is not an infringement of the author's copyright.[644] If we are to be guided by the general principles of the law of copyright now accepted by our Courts, I think these Indian decisions must be held to be wrong. A translation takes everything in a book but the actual words; it takes the selection of material and its arrangement, and is certainly a very material taking of the work and labours of another. The translator is making a profit from the author's work by using it in a manner in which the author might have himself used it and made a similar profit. The only real answer which the translator has is that he has expended a great deal of skilled labour in putting the author's book into another form. This might have been a defence fifty years ago, but I do not think it is a good defence now. In England there is no direct decision; although there are several _obiter dicta_ to the effect that a translation is not an infringement. In _Burnett_ v. _Chetwood_,[645] in 1720, there is a _dictum_ of Lord Chancellor Macclesfield, in which he expressed his opinion that a translation might not be within the prohibition of the Act (8 Anne c. 19), "on account that the translator had bestowed his pains upon it." In _Millar_ v. _Taylor_,[646] Yates, J., and in _Prince Albert_ v. _Strange_,[647] Knight Bruce, V. C., suggest that a translation is not an infringement. In _Wyatt_ v. _Barnard_[648] it was held that a translation would be protected as a new work, but it does not follow that it is not an infringement of an old one. I think that these English _dicta_ are practically useless as authorities, since it cannot now be maintained that the translator will be permitted to take the work of an original author merely because he "bestows his pains upon it." In _Murray_ v. _Bogue_,[649] Kindersley, V. C., said that if an English book were translated into a foreign language and then retranslated into English without authority such translation would be an infringement of the original work. If this is so, it is difficult to see why the translation into the foreign language is not also an infringement if done without authority. The translation and the retranslation appear to be exactly on the same footing, both take the substance of the book, the plot, the arrangement, the selection of material; neither takes the author's words. If it is said that one competes with the original which the other does not, the answer is that it is no defence to say that an infringement is made for a wholly different market from that which the original commands.[650] An author is entitled not only to the uses which he does make of his work, but also to the uses which he might make of it. =Licence.=--A licence in writing[651] granted by the plaintiff to the defendant is a good defence to an action for infringement. The licence need not be written or signed by the proprietor himself. It may be granted by an agent having authority.[652] It would seem that a licence might be valid without being signed by any one. The onus of proving a written licence lies upon the defendant in an action. An assignee of the copyright is not bound by the licence granted by his assignor, unless at the date of assignment he has notice of the licence.[653] A licence, unlike an assignment, may be given before the copyright has come into existence, or even before the work is composed.[654] A licence from the Dramatic Authors' Society was held to include the dramas composed by the members of the society after the date of the licence.[655] If an oral licensor were to sue in respect of acts done by the defendant under his oral licence, the plaintiff's conduct would probably be considered fraudulent, with the result that he would be refused an injunction, get nominal damages, and have to pay the defendant's costs.[656] It need hardly be said that when the use for which a book is published and sold includes a copying of the whole or part of it, such copying is not an infringement, even although no express consent in writing is obtained from the author, for instance, in the case of copy-books, school maps, precedents of conveyancing. This, however, does not entitle any one who uses the book to make a larger use of it in the way of multiplying copies than that which must be presumed from the nature of the publication.[657] It has been suggested that a foreigner resident abroad, who had obtained a copyright in the United Kingdom, could grant an oral licence, if by the law of copyright in his own country an oral licence would be valid.[658] I do not think this is sound. =Abandonment.=--Copyright may be abandoned by giving a general licence to print. Probably, however, this could only be done by some declaration in writing.[659] The Common Law right in an unpublished manuscript might be abandoned by leaving it for a long time in the hands of others.[660] Copyright would not be lost or abandoned by the fact of a book, during the life of the author, being allowed to remain out of print.[661] =Acquiescence and Delay.=--This is no ground of defence, unless in the view of the Court it would make it a fraud afterwards to insist on the legal right. It would seem that the defendant must show some act on the part of the plaintiff inducing the defendant to infringe or continue an infringement of the copyright.[662] At the best, the defence is only an equitable one, and will avail no more than to prevent the plaintiff from getting an injunction or substantial damages, and as the costs are always in the discretion of the Court, he might be ordered to pay the defendant's costs. =Provision against the Suppression of Books.=--After the death of an author, if the proprietor of his published work refuses to republish it, and the book is thereby withheld from the public, the Judicial Committee of the Privy Council may, on complaint, grant a licence to the complainant to publish such book on such conditions as they may think fit.[663] There is no record of any attempt to put in force the provisions of this section. CHAPTER V PERFORMING RIGHTS SECTION I.--NATURE OF PERFORMING RIGHT. As copyright is the exclusive right of making copies of a book, so performing right is the exclusive right of representing or performing in public dramatic or musical works. In a dramatic or musical work, the two rights--the copyright and the performing right--exist side by side; but they are quite distinct from one another, and may pass into different hands. The copyright can only be infringed by copying, the performing right by representation or performance. It is no infringement to dramatize and represent on the stage a copyright novel, since the only exclusive right as to non-dramatic work is the multiplication of copies;[664] but a drama on which a novel has been founded may be infringed by another drama taken from the novel.[665] A writes and publishes a novel. He then dramatizes it, but does not publish the drama. B represents a drama founded on the novel. Such a representation is no infringement either of A's drama[666] or of his novel. It makes no difference even if A has published his drama.[667] In dramatizing a copyright novel, however, the making of a single copy of the drama may be an infringement of the copyright in the novel.[668] It is no infringement of performing right to print and publish as a book a play which has been publicly performed,[669] but it may be an infringement of the common law right in the MS.,[670] or the statutory copyright in the book if already printed and published, or it may be a breach of implied contract.[671] If a dramatic piece or musical composition is first published as a book, this does not take away the performing right. This was decided in _Chappell_ v. _Boosey_[672] in respect of music, and is equally applicable to dramatic work. Conversely the representation or performance of a dramatic piece or musical composition in public does not deprive the author of his common law right to publish as a book, or of his copyright when he so publishes.[673] Performing right extends throughout the British dominions.[674] SECTION II.--PERFORMING RIGHT AT COMMON LAW. It is doubtful whether there ever was any performing right at common law. The only case from which it could be gathered that there was is _Morris_ v. _Kelly_,[675] where an injunction was granted by Lord Eldon restraining the performance of a comedy. The play was apparently in manuscript, but it does not appear whether it had been performed or not. The ground of the decision is very uncertain. From the fact that the Lord Chancellor asked for proof that the assignment was in writing, it might almost appear that protection was given under the statute of Anne, which would certainly have been unsound. The decision may also have been on the ground of common law right in unpublished manuscript, _i. e._ the right to prevent any one but the owner from interfering with it in any way, or it may have been on the ground of breach of implied contract. Altogether the decision is unsatisfactory; the application seems to have been _ex parte_, and the law hardly to have been considered, so that it is impossible to base any definite proposition of law on the case. On the other hand Erie, C. J., stated in the course of the argument in _Marsh_ v. _Conquest_,[676] that there was no performing right at common law. For his authority, however, he cites _Murray_ v. _Elliston_,[677] which is hardly sufficient to support the proposition. In _Murray_ v. _Elliston_ a tragedy by Lord Byron was printed and published for sale. The defendants abridged it and represented it on the stage in the abridged form. It was argued for the defendant that the tragedy having been printed and published as a book, must depend for protection entirely on the statute of Anne in accordance with the decision in _Donaldson_ v. _Beckett_.[678] The statute of Anne gave no performing right, and therefore there was no protection. The Court gave judgment for the defendant, but the ground of their judgment is not quite clear. Some stress seems to be laid on the fact that the tragedy was abridged, and it is therefore left doubtful whether the judges would have considered the representation of an unabridged version to be an infringement of the plaintiff's rights. In either view it is not a decision that there was no performing right at common law. Another case which may be relied on for the contention against performing right at common law is _Coleman_ v. _Wathen_,[679] but on examination it will be seen that all that case decides is that the statute of Anne gave no performing right, and that representation on the stage was not an infringement of copyright. It is submitted that the history of the law of performing right is this: At common law there was no performing right in the proper sense of the term, but an unpublished manuscript was protected from performance as from any other invasion of the author's exclusive right to it. If it was performed on the stage without being published as a book, there would be a remedy on breach of implied contract, the public only being admitted for the purpose of hearing the performance. Once, however, it was published as a book, all exclusive right of performance was gone. The statute of Anne gave no performing right, and performing right proper was first created by 3 & 4 Will. IV. c. 15. This statute and 5 & 6 Vict. c. 45 govern the performing right in dramatic pieces. The performing right in musical compositions is governed by these two Acts, as modified by the Copyright (Musical Compositions) Acts of 1882 and 1888. SECTION III.--WHAT IS A DRAMATIC WORK. The subject of dramatic performing right must be-- 1. An original composition. 2. Of a dramatic nature. The amount of original composition required is probably the same as in a literary work claiming the protection of the Copyright Act, 1842, as a "book." As has been seen the standard is extremely low, no literary merit or great skill being essential.[680] Adaptations, translations, and the like, are protected _quoad_ their transformation.[681] As to what amount of dramatic element is required is not clear from the statutes, and not much clearer from the decisions. It is now well decided that in order to secure a performing right there must be some dramatic element. That is to say, one cannot compose a non-dramatic work, and after publishing it in its non-dramatic form, claim the exclusive right to represent the non-dramatic work on the stage in dramatic form.[682] But the difficulty is to define what is "dramatic form." The dramatic works protected by 3 & 4 Will. IV. c. 15 are "any tragedy, comedy, play, opera, farce, or any other dramatic piece or entertainment." In 5 & 6 Vict. c. 45 "dramatic piece" is defined as including every tragedy, comedy, play, opera, farce, or other scenic, musical, or dramatic entertainment. Neither definition is very satisfactory. In _Lee_ v. _Simpson_[683] it was held that an introduction to a pantomime, being the only written part, and intended to be followed by "comic business," was a dramatic piece. This case as reported, however, is of little assistance, as it does not show what the exact nature of the "introduction" was, and the judgment of the Court does not contain any definition of a dramatic piece. In _Russell_ v. _Smith_[684] the question was more carefully considered. The work in which a performing right was claimed was a song called "The Ship on Fire." It was founded on the loss of _The Kent_ by fire in the Bay of Biscay. According to the judgment-- "It represents a storm at sea, the burning of the ship, and an escape by boat to another ship, and so a safe return to land. It moves terror and pity and sympathy, by presenting danger, and despair, and joy, and maternal and conjugal affection. A witness of great experience in publishing music deposed that this was considered a dramatic song." The Court held that it was a "dramatic piece." Lord Denman, C. J., said: "The nature of the production places it rather in the representative than the narrative class of poetry, according to Lord Bacon's division of dramatic from epic; and the evidence states it to be known as dramatic among those who are conversant with such things. The interpretative clause of 5 & 6 Vict. c. 45, sec. 2, declares that 'dramatic piece' within the Act includes 'tragedy, comedy, play, opera, farce, or any other scenic, musical, or dramatic entertainment.' These words comprehend any piece which could be called dramatic in its widest sense, any piece which on its being presented by any performer to an audience would produce the emotions which are the purpose of the regular drama, and which constitute the entertainment of the audience." In _Clark_ v. _Bishop_[685] an original song, "Come to Peckham Rye," was composed and set to an old air. It was sung at music halls with appropriate character dress, gesture, and expression. The Court were of opinion that it was a dramatic piece, within the meaning of 5 & 6 Vict. c. 45. Kelly, C. B., said: "The plaintiff, by his powers of singing, acting, and characterisation, had made this song a thing of value, not as a song merely, but as acted by him in character, and so as a dramatic piece." In _Wall_ v. _Taylor_[686] it was suggested that by reason of the interpretation clause in 5 & 6 Vict. c. 45, sec. 2, every musical entertainment whatsoever was a "dramatic piece," but Brett, M. R., refused to accept this view. In _Roberts_ v. _Bignell_,[687] a very imperfectly reported case, a divisional court (Day and Wills, JJ.) held that a music hall song, "Oh, Jenny Dear!" the exact nature of which is not apparent, was a "dramatic piece." The leading case on this subject is now _Fuller_ v. _Blackpool Winter Gardens_,[688] and in this the doctrine which seemed to have been growing up that every literary production with the least dramatic flavour was a dramatic piece received a check. The subject of this action was a popular music hall song called "Daisy Bell." The song was sung in character costume, and the inference to be drawn from the song itself and from the evidence was that it was a composition intended for the stage either of the theatre or of music halls. The Court of Appeal, sustaining the judgment of Kennedy, J., held that the song was not a dramatic piece. Lord Esher, M. R., said: "The fact that it is sung in costume does not make it a dramatic piece. If the dress of the singer could have that operation, the singer and not the author of the song would be the person who caused it to be a dramatic piece. The same may be said of the manner in which the singer treats the song. The question must be what was the character of the composition when it was first written and published. I can quite understand that it is possible that a thing to be performed by one person only may be a dramatic piece. But whether the composition is to be sung by one or more persons, if a song is sung, and only a song, there is no performance of a dramatic piece." A. L. Smith, L. J., after reviewing the previous cases, says: "It is not necessary to determine whether each of these cases was rightly decided or whether the reasons given in each for holding the song to be a dramatic piece are satisfactory. Every case must depend upon its own attendant circumstances. In each case it is a question of fact. I think that to constitute a song a dramatic piece it must be such a song that for its proper representation, acting, and possibly scenery, formed a necessary ingredient, and that if neither of these be a requisite to the efficient representation of the song it is not a dramatic piece. It is an entire misnomer to call a mere common, ordinary, music-hall song, which required neither acting nor scenery for its production, a dramatic piece, for it is in truth nothing of the kind." The result then seems to be that "dramatic" must not be used in the widest sense of the term as suggested by Lord Denman, C. J., in _Russell_ v. _Smith_,[689] and that the test is not that of dramatic or epic in the sense in which Lord Bacon applies the words to poetry. There must be more than the dramatic flavour, there must be the dramatic form; that is to say, the work must be so constructed as to be obviously intended for reproduction by means of acting with scenic effect. This test will apply equally to non-musical as to musical works. A case in point is that of the novel in _Toole_ v. _Young_.[690] The facts as stated in the judgment are: "that Mr. Hollingshead wrote a story which he published in a work called _Good Words_, and having in his mind at the time he wrote and published it the intention of afterwards dramatizing the story, he composed it very much of a dramatic character." Yet it was held that it was no infringement of the author's right to put this novel into dramatic form and represent it on the stage. If the novel could have been considered a dramatic piece on account of its "dramatic character," it ought to have been protected against the performance of an adaptation. Mr. Scrutton in his book on copyright considers that "the dramatic character consists in the representative as opposed to the narrative element:" but this seems rather a return to the older theory in _Russell_ v. _Smith_[691] and contrary to _Fuller_ v. _Blackpool Winter Gardens_.[692] For instance, a poem, song, or piece for recitation may be representative in that it depicts action and dialogue rather than narrates events: this according to _Russell_ v. _Smith_[693] would constitute it a "dramatic piece," but according to _Fuller_ v. _Blackpool Winter Gardens_[694] we must find not only the "representative element" but an element which requires acting in order to represent it adequately.[695] SECTION IV.--WHAT DRAMATIC WORKS ARE PROTECTED: DURATION OF PROTECTION. It has been suggested by some writers that there is no statutory protection of performing rights until first representation in public.[696] It has also been suggested that the duration of performing right is in every case for the period laid down by 5 & 6 Vict. c. 45, _i. e._ forty-two years from first performance or the author's life plus seven years. It is difficult to concur in these views, which seem to imply that 5 & 6 Vict. has taken away from the dramatic author certain rights given to him by 3 & 4 Will. IV. c. 15. The law appears to stand thus. Before the statute of 3 and 4 Will. IV. c. 15 there was no statutory performing right. Whether there was a common law performing right _quære_.[697] By the Act of 3 & 4 Will. IV. c. 15 the author of a dramatic piece not printed and published in book form is given a perpetual performing right. This presumably dates from the composition of the dramatic piece. If the dramatic piece is printed and published as a book, the protection is then limited to twenty-eight years from publication or for the life of the author, whichever be the longer period. In neither case is the performing right dependent for its existence on public performance.[698] Then comes the Act of 5 & 6 Vict. c. 45, which enacts in section 20-- "that the provisions of the said Act of His late Majesty (3 & 4 Will. IV. c. 15) and of this Act shall apply to musical compositions, and that the sole liberty of representing or performing or causing or permitting to be represented or performed any dramatic piece or musical composition shall endure and be the property of the author thereof and his assigns for the term in this Act provided for the duration of copyright in books; and the provisions hereinbefore enacted in respect of the property of such copyright and of registering the same shall apply to the liberty of representing or performing any dramatic piece or musical composition as if the same were herein expressly re-enacted and applied thereto save and except that the first public representation or performance of any dramatic piece or musical composition shall be deemed equivalent in the construction of this Act to the first publication of any book." As regards dramatic pieces which have been publicly performed it is clear that the Act of Victoria gives them protection from that date for forty-two years, or for the life of the author and seven years.[699] But does 5 & 6 Vict. c. 45 take away the protection given by 3 & 4 Will. IV. c. 15 to such dramatic pieces as do not come within the provisions of the later statute, _i. e._ unperformed dramatic pieces? It is submitted that it does not, and this appears to be the view of Hawkins, J., in _Reichardt_ v. _Sapte_,[700] the only decision on the point. In that case A wrote a dramatic piece, B subsequently wrote one very similar: B's drama was first performed, and a few days afterwards A's drama was performed. In an action by B against A for infringement of performing right, Hawkins, J., held that A had acquired his performing right under 3 & 4 Will. IV. when he wrote his drama. He says: "In none of the enactments in 5 & 6 Vict. c. 45 will be found anything which prejudicially affects the right of sole representation conferred by the statute of 3 & 4 Will IV. c. 15. The first production of a dramatic piece mentioned in section 20 of the statute of Victoria confers no priority upon the first producer, nor does it confer a title to the sole liberty of representation. That is conferred by the statute 3 & 4 Will. IV. c. 15 upon the author or his assignee: it[701] only fixes the first production as the point from which (if entitled to it) the endurance of the sole liberty of representation is to be calculated." What Hawkins, J., decided was that there is a vested statutory interest in a dramatic piece immediately it is composed, and although it is not quite clear from his judgment, it seems necessarily to follow that the whole rights and remedies given by 3 & 4 Will. IV. c. 15 still attach immediately on composition, and that there is nothing in 5 & 6 Vict. to divest the author of that right. When a dramatic work is performed, no doubt the protection to performing right is restricted as well as extended to the period given by 5 & 6 Vict. c. 45, _i. e._ forty-two years from the date of first performance, or life and seven years: but as regards unperformed works, it is submitted that the performing right is given by 3 & 4 Will. IV. c. 15 on composition, and is perpetual if the work be not printed and published as a book within the British dominions, or if it be printed and published as a book, then for forty-two years from the date of publication as a book, or for the author's life and seven years. Extremely difficult questions may arise as regards performing rights when a dramatic or musical work has been published as a book or publicly performed outside the British dominions before the first publication or the first public performance within the British dominions. Section 19 of 7 & 8 Vict. c. 12, provides: "That neither the author of any book, nor the author or composer of any Dramatic Piece or Musical Composition ... which shall, after the passing of this Act, be first published out of Her Majesty's Dominions, shall have any copyright therein respectively, or any exclusive right to the public representation or performance thereof, otherwise than such, if any, as he may become entitled to under this Act."[702] The whole difficulty lies in the meaning of the words "first published" as applied to the performing right. In _Boucicault_ v. _Delafield_,[703] and _Boucicault_ v. _Chatterton_,[704] it was held that when an unpublished play was first performed outside the British dominions the performing right in this country was extinguished. "First published" was held to include the "first performance" of a drama. This, however, only provides for one possible contingency. As the literary exchange with America, with which we have no international convention, is becoming larger every year, it may be useful to consider some of the other contingencies which may arise, and the difficulties of which are not yet judicially solved. The cases suggested are in connexion with the United States, but apply equally to any foreign country, except in so far as rights may be acquired under International Convention. _Dramatic or Musical Work unpublished, first performed in America._--This has been decided as above. The performing right in this country is lost. _Dramatic or Musical Work first published in America, subsequently first performed within the British Dominions._--This problem is not solved by the above cases. The alternative views are that "publication" in the section means: (i) a putting before the public in any form, whether by representation or in print, or (ii) as regards copyright, a publication in print, as regards performing right, a publication by representation. I am inclined to think that the second alternative is the correct one, and that the performing right in this country is not lost. The contrary, however, seems to have been assumed in _Boucicault_ v. _Chatterton_,[705] both by the bench and bar. _Dramatic or Musical Work first published in the British Dominions, subsequently first performed in America._--This problem depends on the same two alternatives as the last. I therefore think that the performing right here would be lost, even although there was first publication as a book within the British dominions. _Dramatic or Musical Work first performed in America, subsequently first published in the British Dominions._--The performing right in this country would be lost, but probably not the copyright. _Dramatic or Musical Work first performed in the British Dominions, subsequently first published in America._--The performing right in this country would be secured, but the copyright lost. SECTION V.--WHAT IS A MUSICAL COMPOSITION. The necessary originality in a musical composition consists either in a new air or melody, or in the new arrangement and adaptation of an old air. Thus an arrangement of an opera for the pianoforte is an original work separate and distinct from the opera itself.[706] So the adaptation of new words and accompaniment to an old air is a musical composition entitled to protection.[707] It must always be remembered, however, that a new arrangement or adaptation will only be protected _quoad_ its novelty. In so far as the new work is taken from a non-copyright work, an unauthorised taking of that part is not an infringement of the new work. SECTION VI.--WHAT MUSICAL WORKS ARE PROTECTED: DURATION OF PROTECTION. As in the case of dramatic works, so in the case of musical compositions it is submitted that the statutory protection dates from composition, not from first public performance. Musical compositions are protected under the same provisions which protect dramatic works. The protection is therefore identical, except as to the two amending statutes noticed below which do not apply to dramatic works. It was contended in one case that the extension of 3 & 4 Will. IV. c. 15 to musical compositions was only applicable to musical compositions of a dramatic nature.[708] This, however, is not the case, and all musical compositions are protected.[709] By the Copyright (Musical Compositions) Act, 1882, the performing right in musical compositions which have been published in "book" form is conditional[710] on a notice reserving the performing right, and printed on every published copy. If the copyright and performing right are in different hands the owner of the performing right must give notice in writing to the owner of the copyright, requiring him to print such notice, and if the latter after due notice fail to do so, he shall forfeit to the owner of the performing right the sum of £20. Even if the musical composition is also a dramatic piece or part thereof, it comes within this requirement as to notice of reservation on published copies.[711] Once a musical composition has been printed and published without notice of reservation, it will probably be impossible to obtain any protection for the performing right afterwards by publishing copies with reservation.[712] A limited reservation is constantly made, and is probably effectual, _e. g._ reserving the right to sing in music halls, but permitting public performances elsewhere without fee or licence.[713] SECTION VII.--REGISTRATION OF PERFORMING RIGHTS. Section 20 of 5 & 6 Vict. c. 45 enacts that "the provisions hereinbefore enacted" in respect of registering the copyright in books shall apply to the liberty of representing or performing any dramatic piece or musical composition; provided that in the case of a dramatic piece or musical composition in manuscript it shall be sufficient to register-- 1. The title. 2. The name and place of abode of author or composer. 3. The name and place of abode of the proprietor. 4. The time and place of first representation. In the case, therefore, of a dramatic piece or musical composition which has been published as a book, the proper registration in respect of both copyright and performing right would seem to be that provided by section II, viz.: 1. The title. 2. The time of first publication. 3. The name and place of abode of the publisher.[714] 4. The name and place of abode of the proprietor.[715] This is probably correct, although it may not strictly be in accordance with the proviso in section 20, viz.: "save and except that the first public representation or performance of any dramatic piece or musical composition shall be deemed equivalent in the construction of this Act to the first publication of any book." If, however, the provision as to registration in section 11 were strictly construed in accordance with this proviso, the result is that the proper registration would be: 1. The title. 2. The time of first representation. 3. The name and place of abode of the person who first represented it. 4. The name and place of abode of the proprietor. It is obviously absurd that this should be the form of registration when the dramatic piece or musical composition has been printed and published, and that the form in section 20 should be the form of registration when it is in manuscript. The distinction between the two forms is meaningless. Section 24 of 5 & 6 Vict. c. 45, which enacts that no action for infringement of copyright shall be brought unless the book is registered, provides "that nothing herein contained shall prejudice the remedies which the proprietor of the sole liberty of representing any dramatic piece shall have by virtue of the Act 3 & 4 Will. IV. c. 15, or of this Act, although no entry shall be made in the book of registry aforesaid." The provisions as to registration of dramatic pieces are therefore merely permissive and are in no way a condition precedent either to the performing right itself or to the right of action upon infringement;[716] but registration is _primâ facie_ proof of the right of representation subject to rebuttal by other evidence.[717] All the provisions as to the keeping of the registry book,[718] making false entries therein,[719] and motion to expunge,[720] apply equally to registration of a dramatic piece for the purpose of protecting performing right as to registration of a book for the purpose of protecting copyright.[721] =Musical Compositions.=--The requisite registration is the same as for performing rights in dramatic works; but _quære_ whether in the case of performing right in a musical composition it is not a condition precedent to action. This doubt is raised by section 24, which provides that the registration of a book is a condition precedent to an action for infringement of copyright, and it specially excepts "the remedies which the proprietor of the sole liberty of representing any dramatic piece shall have" from the operation of the section. It is curious that "musical compositions" are omitted from this saving clause, whereas in nearly every other part of the Act "dramatic piece and musical compositions" are dealt with together. The arguments against registration being a condition precedent are, (1) the first part of section 24 relates only to copyright which does not include performing right; (2) section 20 does not extend the provisions of section 24 to performing right, since it only applies the provisions "_before_ enacted." There is also a suggestion that "dramatic piece" in the saving clause of section 24 includes "musical composition," since the definition of "dramatic piece" in section 2 includes "musical or dramatic entertainment." There is no authority directly in point. In _Russell_ v. _Smith_[722] the song called "The Ship on Fire" was protected without registration, but then it was held to be a "dramatic piece" and something more than a musical composition. In _Clark_ v. _Bishop_[723] the song protected was also held to be a "dramatic piece." In _Lacy_ v. _Rhys_,[724] where it was held that in the case of a dramatic piece there was clearly no obligation to register, Crompton, J., said that if it had not been for the proviso in section 24, there would have been a doubt whether registration were not necessary.[725] In registering an unpublished arrangement of dance music taken from an opera, the arranger, not the composer of the original opera, must be entered as composer.[726] SECTION VIII.--ASSIGNMENT OF PERFORMING RIGHTS. The performing right in dramatic pieces and musical compositions can only be transferred by a written assignment[727] or by entry on the register.[728] See decisions as to assignment of copyright;[729] but note that as regards performing right the assignment, even if before publication or performance, must be in writing.[730] The performing right will not pass by a mere conveyance of the copyright in a dramatic or musical work[731] unless an entry shall be made of such assignment in the register expressing the intention of the parties that such right should pass.[732] As in the case of copyright, there is no express enactment that assignment must be in writing; but it is inferred from the fact that a licence which is a smaller right cannot be given except by writing.[733] The assignment does not require to be by deed,[734] and if by written document it is valid without registration.[735] Section 22 of 5 & 6 Vict. c. 45 appears at first sight to make registration necessary in every assignment of performing right, at least if the copyright is assigned with it; but this is not so. If in the written assignment there is a specific conveyance of the performing right,[736] or if general words are used such as "all other the estate, right, title, and interest," showing that something else than the copyright was intended to be conveyed, the performing right will pass without registration.[737] Cotton, L. J., in considering this section, says: "I incline to think that this enactment was not meant to control the operation of deeds of assignment, but only to regulate the effect of entries in the registry book."[738] In fact it was passed on account of _Cumberland_ v. _Planché_,[739] which decided that the assignee of the copyright took the performing right as well. If the view is right that the statutory performing right vests immediately on production,[740] there can be no question of assignment of common law rights.[741] Performing rights can probably be partially assigned so as to make a grantee of provincial rights not only a licensee but an assignee, with full power to sue alone and re-assign.[742] SECTION IX.--INFRINGEMENT OF DRAMATIC PERFORMING RIGHTS. By 3 & 4 Will. IV. c. 15, section 1, the author or his assignee has "the sole liberty of representing, or causing to be represented, at any place or places of dramatic entertainment whatsoever" in the British dominions. =Public Performance.=--It is no infringement of performing right in a dramatic work to represent it otherwise than in a place of dramatic entertainment; but it has been held that any place where a dramatic work is publicly performed is for the time being a place of dramatic entertainment. In _Lee_ v. _Simpson_,[743] Wilde, C. J., says: "The legislature clearly meant places where dramatic entertainments are represented to which the public are admitted." In _Russell_ v. _Smith_[744] the Court decided that a certain song, "The Ship on Fire," was a dramatic piece. Denman, C. J., said: "It follows that as Crosby Hall was used for the public representation for profit of a dramatic piece, it became a place of dramatic entertainment for the time, within the statutes now in question. The use for the time in question and not for a former time is the essential fact. As a regular theatre may be a lecture-room, dining-room, ball-room, and concert-room on successive days, so a room used ordinarily for either of these purposes would become for the time being a theatre if used for the representation of a regular stage play. In this sense, as "The Ship on Fire" was a dramatic piece, in our view Crosby Hall, when used for the public representation and performance of it for profit, became a place of dramatic entertainment. In thus deciding we do not declare that the defendant's performances at Crosby Hall were unlawful without a theatrical licence within Stat. 6 & 7 Vict. c. 68."[745] In the judgment of Brett, M. R., in _Wall_ v. _Taylor_[746] there is a suggestion that although a single item in a programme might be dramatic, that would not be sufficient to render the whole entertainment dramatic or to make the place a place of dramatic performance. In _Duck_ v. _Bates_[747] the defendant represented a dramatic piece without the author's consent. The representation took place in a room of Guy's Hospital, and was provided entirely for the amusement of the nurses and attendants of the hospital. The medical officers of the hospital, the students and some of their friends were present. A reporter to a theatrical newspaper was also present by invitation. It was held by Brett, M. R., and Bowen, L. J. (Fry, L. J., dissenting), that the room was not a place of dramatic entertainment. Neither profit[748] nor habitual use were essential elements, but there must be a representation to which a portion of the public is admitted. Brett, M. R., said: "Did the legislature intend to forbid a representation without the author's consent by children in a nursery before their parents, or by grown-up persons in a drawing-room? It is clear that something more than that must have been intended; and why should not a representation of that kind be called a dramatic entertainment? Because it is obviously domestic and private. Suppose that the servants of the household are invited to witness the performance; nevertheless it is a domestic entertainment. As I have already intimated, the author wants protection for the pecuniary value of his drama, and a representation in a private room is of no pecuniary value. In order to entitle the author to penalties there must be a representation which will injure the author's right to money; such, for instance, as a representation which, although it is not for profit, would attract persons who are willing to pay money, and would induce them not to go and see a performance licensed by the author. Suppose that a representation in the presence of friends takes place for the amusement of friends and of the members of the household in an unfurnished house hired for the occasion: that is not an infringement of the statute: the representation must be other than domestic or private. There must be present a sufficient part of the public who would go also to a performance licensed by the author as a commercial transaction; otherwise the place where the drama is represented will not be a 'place of dramatic entertainment' within the meaning of the statute. Suppose that a drama is represented in a county town, and that all persons of a certain class throughout the county are free to come: suppose that a member for a parliamentary constituency (I do not mean shortly before or during an election) organises dramatic entertainments to which the inhabitants are admitted without paying: suppose that an amateur company choose to act some drama for a charitable object, with admission upon payment or by tickets issued generally: in each of these instances an infringement of the statute has been committed.... I wish to say, by way of warning, that those who go beyond the facts of the present case may incur the penalties of the statute." This case is most instructive as being quite on the border line between a private and public representation. Performing right in a drama may be infringed by a representation without scenery and appropriate dresses. "We should take away a part of the protection conferred on authors if we hold that there could be no public representation without these accompaniments."[749] =Substantial Part.=--As in literary copyright the part taken must be material and substantial in order to infringe performing right. In _Chatterton_ v. _Cave_,[750] Lord Chief Justice Coleridge at the trial found as a fact "that two scenes or points of the drama of the defendant had been taken directly from the drama of the plaintiff;" there was no further copying. He thereupon gave judgment for the defendant. On a rule for a new trial, Lord Coleridge, sitting in the Court of Common Pleas, stated orally that what he meant to convey by his finding was, "that looking to the general character of the plaintiff's and defendant's dramas, the extent to which the one was taken from the other was so slight, and the effect upon the total composition was so small, that there was no substantial and material taking of any one portion of the defendant's drama from any portion of the plaintiff's." On this explanation the rule was discharged, and the judgment subsequently affirmed by the Court of Appeal and the House of Lords. Lord Hatherley said that the principle _de minimis non curat lex_ applied to a supposed wrong in taking a part of dramatic works as well as in reproducing a part of a book. He could not read the word "part" in the Dramatic Copyright Act as "particle," so that the crowing of the cock in "Hamlet," or the introduction of a line in the dialogue might be held to be an invasion. In _Planché_ v. _Braham_,[751] Tindal, C. J., directed the jury that if either one song, or more than one song be taken from a piece and be performed on the stage or any place of theatrical entertainment, that would be a "representing" within the Act of Parliament. The jury, having found that the defendant had represented "a part of the plaintiff's opera," a rule for a new trial was refused.[752] In _Beere_ v. _Ellis_,[753] two plays purported to be founded on the same novel. The defendant's play contained some of the dialogue and several dramatic incidents and situations taken directly from the plaintiff's play. Baron Pollock held that a small piece of dialogue would not alone amount to an infringement, but the defendant had taken two dramatic incidents on which the plot of the play depended. He had therefore taken a material part, and although he had done a considerable quantity of work for himself, he had "extracted the plums" from the plaintiff's work, and this he was not entitled to do. An indirect taking is, as in literary copyright, an infringement, _e. g._ to copy and perform passages from a play by dramatizing a novel founded on that play.[754] It is no infringement to produce a play almost identically similar to that of another author, if this is the result of coincidence and not of any piracy direct or indirect.[755] As to the taking of a plan or idea, see the chapter on infringement of literary copyright.[756] There must be more than the taking of a general idea or scheme. Lord Blackburn, in _Chatterton_ v. _Cave_,[757] said: "An idea may be taken from a drama and used in forming another without the representation of the second being a representation of any part of the first. For example, I have no doubt that Sheridan in composing 'The Critic' took the idea from 'The Rehearsal,' but I think it would be an abuse of language to say that those who represent 'The Critic' represent 'The Rehearsal,' or any part thereof, and if it were left to me to find the fact, I should without hesitation find that they did not. On the other hand, in composing 'The Trip to Scarborough,' Sheridan took so much from 'The Relapse,' that if it were left to me to find the fact, I should find that those who represent 'The Trip to Scarborough' do represent parts of 'The Relapse.'" =Causing to be Represented.=--The "penalty" prescribed by the Act of 3 & 4 Will. IV. c. 15 is recoverable from those who "represent or cause to be represented" an unauthorised work. Section 20 of 5 & 6 Vict. c. 45 provides "that the sole liberty of representing, or performing, or causing or permitting to be represented or performed, any dramatic piece or musical composition, shall endure," &c. Notice that this section uses the word "permitting," whereas 3 & 4 Will. IV. c. 15 only uses "represent or cause to be represented." The later statute, however, does not purport to extend the nature of performing right, and therefore the word "permitting," if it have any meaning at all, can only be explanatory of the words "cause to be represented" in the earlier statute. When then does a person "cause a dramatic piece to be represented"? Shortly, the answer probably is, that if he does not actually take part as an actor, the defendant must be shown to have had some initiation in or control over the performance. In _Parsons_ v. _Chapman_,[758] an acting manager, who paid the performers' salaries, and was entitled to dismiss them, was held to have caused a dramatic piece to be represented within the meaning of 10 Geo. III. c. 28, sec. 1. In _Russell_ v. _Briant_,[759] the defendant was the landlord of "The Horns" Tavern, at Kennington. His premises included a large assembly room which was hired for evening entertainments. The defendant furnished the platform and the lights, and allowed bills to be put up in the tavern, and tickets of admission to be advertised to be sold at the bar. At one entertainment a song, "The Ship on Fire," which in _Russell_ v. _Smith_[760] was held to be a copyright dramatic piece, was sung. It was held that the defendant had not represented or caused to be represented the dramatic piece in question. Wilde, C. J., said that no one could be considered as an offender unless by himself or his agent he actually took part in the representation. In _Lyon_ v. _Knowles_[761] the defendant let his theatre. He provided and paid for the scenery, lights, printing, advertising, band, doorkeepers, scene-shifters, and supernumeraries. His servants collected the money at the door, and he retained half the gross profits to recoup himself. The lessee brought his own company, and represented pieces of his own choice, the defendant having no control over any person employed in the representation. It was held that the defendant had not caused the piece to be represented within the meaning of the Acts. In _Marsh_ v. _Conquest_[762] the defendant was the proprietor of a theatre, and his son, the acting manager, hired it for a "benefit." The Court held that the defendant came within the statute. Erle, C. J., delivered the judgment of the Court: "It appears that the defendant is the proprietor of the Grecian Theatre, and the employer of the dramatic corps attached thereto; that his son, the stage manager, hired for his benefit-night the theatre, together with the company of actors, and servants, and lights, for the sum of £30; and that the son, in the defendant's theatre, and with the aid of his actors and actresses, musicians, servants, lights, and other paraphernalia, represented the dramatic piece in question, in violation of the plaintiff's sole and exclusive right of representing or causing it to be represented. I think the defendant is responsible for that representation. He was the proprietor of the theatre, and had entire control over the establishment and all belonging to it, and what was done by his son was done with his permission." In _Monaghan_ v. _Taylor_[763] the defendant was the proprietor of a music hall, and paid a singer to perform, leaving him his own choice of songs. The singer sang a copyright song. The Court held that the defendant came within the statute. This decision would not now apply to musical performing right, since, by the Musical Copyright Act of 1888, a proprietor is not liable unless he permits the performance knowing it to be an infringement. It is still applicable to dramatic performing rights. Suppose, for instance, the proprietor of a variety theatre hired the services of a troop of players, telling them to fill up twenty minutes on the programme with any dramatic scene they pleased. If they infringed a dramatic copyright, the proprietor would be liable. It seems to be doubtful whether if B, acting entirely as the agent of A, causes C and others to perform a dramatic piece, he can be held liable if he took no part in the representation. In _Parsons_ v. _Chapman_[764] Lord Tenterden, C. J., directed the jury that it was sufficient if the defendant caused the piece to be performed; and that it made no difference that he did so as an agent for others. This was a decision under 10 Geo. II. c. 28, and the principle should be the same under 3 & 4 Will. IV., and 5 & 6 Vict; but in _French_ v. _Day_[765] Kennedy, J., took a different view. One of the defendants was the manager of a theatre. He received instructions for the production of the piece in question from the proprietor, and he could not engage or dismiss artistes; he was in every respect bound to conform to his employer's orders. Kennedy, J., said: "The whole thing was carried on by the proprietor, who merely used the manager as his mouthpiece. I think I ought not to hold that a person in his position 'represented,' or 'caused to be represented,' the piece." =Knowledge.=--In an action for infringement of dramatic performing right it is unnecessary to prove that the defendant knew the performance was an infringement.[766] =Innocent Agents.=--All the actors who take part in an unlawful performance are within the section as "representing," and are liable to penalties.[767] =Licence.=--It is an infringement of performing right to perform "without the consent in writing of the author or other proprietor."[768] See decisions on licence as to copyright in books.[769] The licence must be in writing,[770] but it does not require to be written by the proprietor or signed by him or any one else.[771] The secretary of a dramatic author's society may, if he has authority, grant a good licence on behalf of the authors.[772] A part owner cannot grant a licence without the consent of the other part owners.[773] SECTION X.--INFRINGEMENT OF MUSICAL PERFORMING RIGHTS. =Substantial Part.=--The rule that the taking of a part but not of a particle in infringement applies equally to musical compositions and to the performing rights therein. In _D'Almaine_ v. _Boosey_[774] the taking of airs from an opera and arranging them as quadrilles and waltzes was held to be an infringement of the copyright in the opera. Lord Lyndhurst said: "Substantially the piracy is when the appropriated music, though adapted to a different purpose from that of the original, may still be recognised by the ear." This test, however, will hardly apply to the piracy of an adaptation where the air or melody is a non-copyright one. A comparison of the actual notes and treatment of the phrases would have to be made. =Public Performance.=--It has been contended that the protection afforded by 3 & 4 Will. IV. c. 15 to musical compositions is only an exclusive right of performance in places of dramatic entertainment. That is the protection given to dramatic pieces, and it was said that 5 & 6 Vict. c. 45, in applying 3 & 4 Will. IV. c. 15 to musical compositions did not give them a wider protection than dramatic pieces had. In _Wall_ v. _Taylor_[775] the Court held that this view was wrong. Bowen, L. J., said: "I think the answer is this, that what is called in the argument a 'condition' of recovering a penalty in sec. 2 of 3 & 4 Will. IV. c. 15 is nothing of the kind, but part of the definition of the offence upon which the penalty is to be incurred.... The right granted is the privilege of representing at places of dramatic entertainment.... Now sec. 20 of 5 & 6 Vict. c. 45 creates a new right of property as to a musical composition, and gives the author and his assigns the sole liberty of representing or performing it. That is the right given, and sec. 21 says that the person who shall have that right 'shall have and enjoy the remedies given and provided' in the Act of 3 & 4 Will. IV. c. 15. Why read into that word 'remedies' that the second section of that Act is only to be put in force not where there is an infringement of that right, but where there has been a representation or performance at a place of dramatic entertainment." The view of Cotton, L. J., in the same case was that the remedies of 3 & 4 Will. IV. c. 15 were not applicable unless the musical composition was performed in a place of dramatic entertainment; but that in every case of public performance there was a remedy under 5 & 6 Vict. c. 45 for damages and injunction. Since the Musical Copyright Act of 1888 the distinction between these opinions has become immaterial, for in every case in which the performance is actionable at all the Court may assess the damages as it thinks proper. =Causing to be Represented.=--The offence is representing or "causing to be represented." As to what the latter includes see page 139, on performing right in dramatic pieces. The liability for "causing to be represented" differs from that in the case of dramatic pieces in that since the Copyright (Musical Compositions) Act, 1888, "the proprietor, tenant, or occupier of any place of dramatic entertainment or other place at which any unauthorised representation or performance of any musical composition shall take place ... shall not by reason of such representation or performance be liable to any penalty or damages in respect thereof, unless he shall wilfully cause or permit such unauthorised representation or performance, knowing it to be unauthorised."[776] In respect of those who are not proprietors, tenants, or occupiers the liability is the same as in the infringement of dramatic performing right. SECTION XI.--REMEDIES FOR INFRINGEMENT OF DRAMATIC PERFORMING RIGHTS. An action for-- 1. Penalty[777] of 40s. for each performance, or the defendant's profits, or the actual damage sustained, whichever be the greater. 2. Injunction.[778] 3. A full and reasonable indemnity as to costs.[779] Action must be brought within twelve calendar months of the offence.[780] SECTION XII.--REMEDIES FOR INFRINGEMENT OF MUSICAL PERFORMING RIGHTS. An action for-- 1. Damages.[781] 2. Injunction.[782] 3. Costs in the discretion of the Court.[783] Action must be brought within twelve calendar months of the offence.[784] CHAPTER VI COPYRIGHT IN ENGRAVINGS SECTION I.--WHAT WORKS ARE PROTECTED. The following works are protected under the Engraving Acts: 1. Every original engraving or print:[785] 2. [Made within the British dominions:][786] 3. First published within the British dominions:[787] 4. Which bears the date of first publication and the proprietor's name thereon:[788] 5. And is innocent.[789] The protection endures for twenty-eight years from publication.[790] The protection is limited to the United Kingdom.[791] =What is an Original Engraving.=--By 8 Geo. II. c. 13 (1734) copyright is given to "every person who shall invent and design, engrave, etch, or work in mezzotinto or chiaro oscuro, or from his own works and invention shall cause to be designed and engraved, etched, or worked in mezzotinto or chiaro oscuro any historical or other print or prints." In _Blackwell_ v. _Harper_[792] (1740) it was decided that the above Act was not limited to works of invention such as an historical group, but extended to the "designing or engraving anything that is already in nature." In _Jefferys_ v. _Baldwin_[793] (1753) it was held that prints of herring fishing-boats were not within the protection of the Act. By 7 Geo. III. c. 38 (1766), which was passed in consequence probably of the doubt thrown upon the earlier Act by the above and other decisions, the copyright in engravings is given to "all and every person or persons who shall invent or design, engrave, etch, or work in mezzotinto or chiaro oscuro, or from his own work, design, or invention shall cause or procure to be designed, engraved, etched, or worked in mezzotinto or chiaro oscuro any historical print or prints, or any print or prints of any portrait, conversation, landscape, or architecture, map, chart, or plan, or any other print or prints whatsoever," and "to all and every person who shall engrave, etch, or work in mezzotinto or chiaro oscuro, or cause to be engraved, etched, or worked any print taken from any picture, drawing, model, or sculpture either ancient or modern." Notwithstanding this widely worded protection, doubts arose as to whether lithographs and certain new processes of reproducing prints came within the Acts, and in consequence a clause was inserted in the Copyright Act of 1852[794] whereby it was declared that the provisions of the Engraving Acts were intended to include prints taken by lithography or any other mechanical process by which prints or impressions of drawings or designs are capable of being multiplied indefinitely. Prints of every description, therefore, are protected under the Engraving Acts, and it is immaterial whether the design produced is: 1. The imaginative invention of the maker, 2. Taken from some object in nature, or 3. Taken from some other work of art, such as a picture or model. _Originality._--The only originality required is an originality in execution, _i. e._ the work must not be taken from some other print and reproduce from that other print those characteristics of execution wherein the peculiar merit of the engraver's art lies. "The engraver produces his effects by the management of light and shade, or as the term of his art expresses it, the _chiaro oscuro_. The due degrees of light and shade are produced by different lines and dots; he who is the engraver must decide on the choice of the different lines or dots for himself, and on his choice depends the success of his print. If he copies from another engraving he may see how the person who engraved that has produced the desired effect, and so without skill or attention become a successful rival."[795] _Map, Chart, or Plan._--It will be remembered that maps, charts, and plans are included under the definition of books in the Copyright Act, 1842,[796] and receive protection as such. Doubt has consequently been raised as to whether a map must comply with both the Engraving Acts and the Literary Act in order to obtain protection, or whether it will be sufficient to comply with the requirements of one only, and if so, which. The decided cases are unsatisfactory. In _Stannard_ v. _Lee_[797] protection was claimed for a "Panoramic Bird's-eye view of France and Prussia," with the railway and strategic positions illustrating the Franco-Prussian War of 1870. This was not registered as a book under the Copyright Act, 1842, and the objection was held to be fatal. The judges in the Court of Appeal seemed to be of opinion that the Act of 1842 had taken maps, charts, and plans out of the protection of the Engraving Acts and placed them under the protection of the Literary Act, consequently that the requirements of the latter and not of the Engraving Acts must be observed. James, L. J., said: "It was reasonable and proper to take a map out of the class of artistic copyrights and to give to it the better and more complete copyright which is intended to be given to literary works. And there would be, as I have pointed out clearly, great inconvenience in having two laws of copyright as to two sets of maps or as to the same set of maps."[798] Mellish, L. J., said: "I think it is a perfectly rational enactment that maps shall no longer be included among works of art but be classed in future with literary works."[799] After this case had been decided a petition was brought to the Court praying that another case, _Stannard_ v. _Harrison_,[800] in which the same map had been copied, and to which the defendants had consented to a decree for injunction and damages, should be reheard. Bacon, V. C., refused the petition, and indicated in the course of his judgment that a map not registered as a book might be protected as an engraving if the claim was properly stated. The judgment in _Stannard_ v. _Lee_,[801] he said, had gone on a question of pleading, the plaintiffs having voluntarily brought their map under the category of books. This is by no means a satisfactory explanation of the decision in the Court of Appeal, as it is abundantly clear from the judgments as reported that in the view of the Lords Justices the Copyright Act, 1842, took maps, charts, and plans out of the category of artistic works and placed them in the category of literary works. Whether this is a correct view is another matter, but at present it would seem to be law. It is submitted that the true view probably is that a map may be protected under either Act if the requisite formalities are observed. The Literary will probably give a wider protection than the Engraving Acts. The Engraving Acts will protect a map from infringement of the method of execution, that is to say, the work which is the peculiar work of the engraver; while the Literary Act will protect it not only from that, but from a piratical taking of information imparted. Thus suppose a map of India giving battles and dates and, say, the principal products of the various districts marked with printed letters on the surface. It is difficult to see how the taking of all these dates and products and placing them perhaps printed in different letters on the new map could be an infringement of the engraving copyright in the map; there is nothing in the nature of a design or drawing taken; and yet it is quite clear it will be an infringement under the protection afforded by a literary copyright, because there is a taking of the particular expression by which information is imparted. _Engravings in a book_ are protected by the Copyright Act, 1842, as part of the book, and, as such, do not require to comply with the requirements of the Engraving Acts.[802] The protection of a print forming part of a book is probably a double one, and if it had the name and date inscribed would be protected without registration or notwithstanding faulty registration of the book. =Must the Engraving be made within the British Dominions.=--The Act 17 Geo. III. c. 57 giving a remedy by action for damages is expressly confined to works made in Great Britain. The other two Acts, 8 Geo. II. c. 13 and 7 Geo. III. c. 38, are not expressly limited to works there made, but it has been held that the limitation is to be supplied in them.[803] "It is plain that the object of the legislature was to protect those works which were designed, engraved, etched, or worked in Great Britain, and not those which were designed, engraved, etched, or worked abroad, and only published in Great Britain."[804] The Act 6 & 7 Will. IV. c. 59 extends the application of the Engraving Acts to Ireland, and in section 2 there is a general proviso protecting "any engraving or print of any description whatever ... which may have been or which shall hereafter be published in any part of Great Britain or Ireland." It is quite arguable that this extends the protection to engravings wherever made if published in the United Kingdom; but probably it would be held to be only applicable to engravings made in the United Kingdom, and is merely a proviso that there will be no copyright until publication in the United Kingdom. The point, however, is one of great uncertainty. Under the International Copyright Act, 1886,[805] works first produced anywhere within the British dominions are protected equally with those first produced in the United Kingdom. The doubt still remains whether the engraving must not be made as well as first published within the British dominions. =The Engraving must be first Published within the British Dominions.=--There is no protection until publication[806] except at common law. Publication is an act which gives to the public an opportunity on payment or otherwise of viewing the print. There may probably be publication without offering copies for sale or distribution. See as to publication of books[807] and pictures;[808] but the analogy is not complete with either. There seems to be no direct authority as to what constitutes publication of an engraving. Before 1886 the work had to be published in the United Kingdom.[809] Now first publication anywhere within the British dominions will be sufficient to secure the copyright.[810] =Date of First Publication and Proprietor's Name.=--It is a condition precedent to protection that there must be truly engraved on each plate, and printed on every print or prints[811]-- i. The name of the proprietor; ii. The day of first publication. This qualification of the engraver's right is only inserted in 8 Geo. II. c. 13, and not in the subsequent Acts which extend the protection to works not there included and give remedies not there given. It has been held, however, that as the Acts are _in pari materia_ they must be taken together, and the qualification in the first read into the others.[812] The proviso as to the name and date is a condition precedent to protection, and not merely directory.[813] In one case Lord Hardwicke thought that, although no action for penalties would lie unless the name and date were correctly published, an injunction might be granted even although the name and date were not published at all.[814] He was probably wrong. _Name of Proprietor._--There is some little doubt as to whether this must be the name of the person who was proprietor at the date of first publication or at the date on which protection is claimed. In _Thompson_ v. _Symonds_[815] Lord Kenyon said: "The name of the proprietor should appear in order that those who wish to copy it might know to whom to apply for consent. It seems, therefore, necessary that the date should remain, but that the name of the proprietor should be altered as often as the property is changed." But Buller, J., in the same case, thought the proprietor always meant the inventor and first proprietor, notwithstanding the property had passed to his assignee. The point is certainly doubtful, but the latter view that the name of the first proprietor only need be on the print seems the more reasonable, and not contrary to the wording of the Act. The proprietor need not be described as such on the plate.[816] If his name is there it is sufficient, even if there is more than one name and it is uncertain which is the proprietor.[817] The proprietor need not be described by his full name, his surname is sufficient.[818] When a partnership firm are proprietors of an engraving the trading name of the firm is a sufficient designation, inasmuch as it enables parties to know whom to apply to for information.[819] If a single proprietor trades under the designation of A. B. & Co. that is a sufficient designation.[820] =Immoral Works.=--There will be no copyright in profane, libellous, or indecent prints.[821] =Duration of Protection.=--The statutory right begins on publication, and runs for twenty-eight years from the day of first publishing.[822] After publication protection will depend entirely on the statute.[823] Before publication there is a common law right to prevent all interference with what is a man's private property,[824] and to protect this the formalities prescribed by the statute need not be complied with. SECTION II.--THE OWNER OF THE COPYRIGHT. =The Engraver.=--The persons to whom the copyright is given by the Acts are, "Every person and persons who shall invent or design, engrave, etch, or work in mezzotinto or chiaro oscuro, or from his own work, design, or invention, shall cause or procure to be designed, engraved, etched, or worked in mezzotinto or chiaro oscuro any prints ... and every person who shall engrave, etch, or work in mezzotinto or chiaro oscuro, or cause to be engraved, etched, or worked any print taken from any picture." The engraver, therefore, is the first owner of the copyright when he does the work on his own behalf, or, if he does it on behalf of another, executes it entirely from his own work, design, or invention. =The Employer.=--When one man employs another to execute an engraving it would seem that by the Acts[825] the copyright vests _ab initio_ in the employer: 1. In the case of an engraving taken from another work of art. 2. In the case of an engraving with an original design, if it is executed from the employer's own work, design, or invention. An employer may be the inventor of a design even although he is unable to draw, and would himself be unable to execute it. For instance, in the case[826] of a war map for the Franco-Prussian war in 1870, it was held that a publisher who had employed an engraver, giving him material and instructions from time to time was the inventor, and therefore the first owner in the copyright in the map. Bacon, V. C., said: "As to whether the design or invention is that of the plaintiff or not is a mere matter of character.... The compiler has proved that it is the design of the plaintiff; that the plaintiff brought to him his rough sketch or draught, a drawing of the same size as the stone on which it was to be engraved, pointing out, as the compiler has said, 'a rough sketch of the forts and towns to give me an idea; he furnished me also with a large French map, and some maps published in the _Times_ and _Daily Telegraph_; he gave me notice also daily of the earthworks that were made and produced, besides a picture published in the _Illustrated London News_.' That the plaintiff cannot draw himself is a matter wholly unimportant if he has caused other persons to draw for him. He invents the subject of the design beyond all question. He prescribes the proportions and the contents of the design; he furnishes a part of the materials from which the drawing has to be made in the first instance, and afterwards collects daily from the proper sources, and even, if it be necessary to say so, from official sources, the decrees, the reports, the bulletins and accounts contained in the newspapers of the different phases of the war, and especially of the places in which earthworks are thrown up. These he communicates to the man whom he has employed to make a drawing for him.... It is clear to my mind that this is a work of diligence, industry, and for aught I know of genius on the part of the plaintiff, for the notion never seems to have occurred to the compiler himself." If the person employed is the servant of the employer and not an independent contractor, the whole right in the engraving will probably, irrespective of the Acts, vest _ab initio_ in the employer.[827] =The Assignee.=--In one case[828] it was contended that there could be no assignment under the Engraving Acts enabling an assignee to sue in his own name, since these Acts only provide for the licence and exemption from liabilities of a purchaser.[829] It was held, however, that there could be an assignment, and that the assignee could sue in his own name.[830] As a licence is required to be in writing, signed by the proprietor and in the presence of two or more credible witnesses,[831] so must the assignment which passes a greater right.[832] The sale of plates will not in itself operate as an assignment;[833] but, if it were clearly intended to pass the whole right, probably it would pass with the plates without assignment in writing.[834] Before publication the whole right in the engraving, _i. e._ the common law right, may be assigned without writing.[835] SECTION III.--INFRINGEMENT OF THE COPYRIGHT. =Prohibited Acts and Remedies.=--It is an offence "for any print-seller or other person whatsoever"[836]-- 1. To engrave, etch, or work, or in any manner copy and sell the protected work. 2. To print, reprint, or import for sale any pirated copy. 3. Knowingly to publish, sell, or expose for sale, or in any other manner dispose of any pirated copy. 4. To cause or procure any of these acts to be done. For any such offence the remedy is an action in the High Court for-- i. Forfeiture of plates and sheets to proprietor for destruction. [837] ii. Penalty of 5s. for every published copy.[838] iii. Damages.[839] iv. Injunction.[840] v. Inspection and Account.[841] Further it is an offence-- 5. Innocently to publish, sell, or expose for sale, any pirated copy.[842] 6. To make a copy or copies, whether for sale or not.[843] 7. To cause or procure any of these acts to be done. For any such offence the remedy is an action in the High Court for-- i. Damages.[844] ii. Injunction.[845] iii. Inspection and Account.[846] Penalties and delivery of plates or copies may also be recovered by summary proceeding before any two justices having jurisdiction where the party offending resides.[847] _Guilty Knowledge._--It will be noticed that in order to recover penalties and forfeiture of copies under 8 Geo. II. c. 13, for the offence of selling a piratical copy, it must have been committed knowing the copy to have been produced without consent. In 17 Geo. III. c. 57, however, the offence for which an action for damages lies is merely "selling," thus not requiring proof of guilty knowledge. It has been contended that the requirement of guilty knowledge in 8 Geo. II. c. 13, should be read into 17 Geo. III. c. 57, and the action of damages provided by the latter statute applied to guilty selling only. This contention has been rejected as erroneous.[848] _Limitation of Action._--Actions for penalties under the Acts must be brought within three months of the discovery of the offence sued on[849] and within six months after the committal of such offence.[850] There is no express limitation in the Acts in respect of actions for damages under 17 Geo. III. c. 57, and therefore such action will not be barred for six years.[851] _Costs._--The litigant if successful in an action for infringement is to recover "full costs."[852] This proviso, however, has been construed to mean nothing more than ordinary costs taxed as between party and party.[853] Probably, however, they may be claimed as of right and are not in the discretion of the Court under Rules of the Supreme Court, o. 65, r. 1.[854] _Copying for Private Use_ will probably be actionable under 17 Geo. III. c. 57;[855] but no penalties could be recovered under 8 Geo. II. c. 13, as under that Act the making must be a making for sale. =What is a Piratical Copy.=--The right under the Acts is "the sole right and liberty of printing and reprinting the same,"[856] and the prohibition is against "engraving, etching, or working in mezzotinto or chiaro oscuro or otherwise, or in any manner copying, in the whole or in part, by varying, adding to or diminishing from, the main design."[857] The taking of a material part is a piracy;[858] the copy which contains a material part of a copyright engraving is a piratical copy, and it is an offence to import or sell it.[859] The copyright in an engraving may be infringed otherwise than by another engraving. Thus a photograph of an engraving is an infringement of the copyright in it.[860] It is doubtful how far the Engraving Acts protect the design in an engraving. It is clear that when an engraving is taken from a work of art previously existing, such as a pen and ink drawing or a painting, the engraving is only copyright so far as the work of the engraver[861] is concerned; that is to say, apart from the copyright in the drawing or painting, which may or may not be his, the engraver acquires no monopoly[862] of the right to engrave the picture; the fact of his being the first engraver does not prevent others from doing the same, they can only be prevented from copying from his engraving the peculiar execution of the design. In _Dicks_ v. _Brooks_[863] a printed pattern for Berlin wool work was taken from an engraving of the well-known picture "The Huguenot," by Millais. The owner of the copyright in the engraving sued for infringement. It was held that the printed pattern constituted no infringement of his engraving; it contained no reproduction of that which was the engraver's meritorious work in the print. But if the whole invention and design of the engraving is the engraver's own do the Engraving Acts protect the engraver in such design and invention? There is no authority where the point has been expressly considered and decided. It is suggested that the Engraving Acts protect that part of an engraving only which is the result of the engraver's peculiar art; for the rest, for the design, for the invention, for the grouping of the figures, protection can only be obtained under the Act protecting drawings, or (in the case of maps) under the Literary Copyright Act, or at common law. In _Roworth_ v. _Wilkes_[864] Lord Ellenborough considered a copying of the design was an infringement of copyright under the Engraving Acts. The action was in respect of an alleged infringement of certain plates in a treatise on fencing. These plates had been copied in so far as the position of the figures went, but they were represented as differently dressed. His Lordship, in directing the jury, said: "As to the prints, the question will be whether the defendant has copied the main design ... it is still to be considered whether there be such a similitude and conformity between the prints that the person who executed the one set must have used the others as a model. In that case he is a copyist of the main design. But if the similitude can be supposed to have arisen from accident, or necessarily from the nature of the subject, or from the artist having sketched designs merely from reading the letterpress of the plaintiffs work, the defendant is not answerable. It is remarkable, however, that he has given no evidence to explain the similitude or to repel the presumption which that necessarily causes." In _Martin_ v. _Wright_[865] it was held that when an artist had from sketches of his own produced an engraving, and the defendant had it copied on canvas in colours on a very large scale, with dioramic effect, and publicly exhibited it, such a copying and exhibiting was no infringement of the engraving. The ground of this decision seems to have been partly that the merit of the new work had absorbed the merit of the old. Thus Shadwell, V. C., prefaces his judgment with the remark that "any person may copy and publish the whole of a literary composition provided he writes notes upon it, so as to present it to the public connected with matter of his own."[866] Another ground of the decision seems to have been that the diorama was produced for purposes of exhibition and not of sale. The real point, whether the Acts protected more than that which was peculiar to the engraver's art, does not appear to have been considered either in the argument or judgment. In _Dicks_ v. _Brooks_[867] James, L. J., appears to have been of opinion that 8 Geo. II. c. 3, in protecting the work of an engraver where the invention and design was his own, protected not only the work peculiar to the engraver's art, but the invention and design of the pictures as well. "These words were intended to give protection for the genius exhibited in the invention of the design, and the protection was commensurate with the invention and design."[868] Bramwell, L. J., however, seems inclined towards the opposite view. He says: "I do not say that if this were an ordinary engraving with no picture, a lithograph taken from it would not be a copy. I think that a photograph taken from it would be a copy. I do not say that if this were an original engraving with no picture, and a copy were made of it and afterwards coloured there might not be some ground for saying that there was a piracy of the art and skill of the engraver. I should have very great misgiving about it, because I doubt whether the statutes were not intended to protect the artist's skill as an engraver only, and not as a draftsman."[869] It is no defence to an action for infringement that the work has been extensively added to or improved.[870] Striking prints from the proprietor's own plate has been held not to be an infringement, although it was clearly an unauthorised act and a breach of contract.[871] Thus a printer who had plates in his possession would not infringe the copyright and be liable to penalties by striking copies for his own use, but he would be liable in damages for breach of contract. _Licence a Defence._--A licence in order to be a defence must be in writing signed by the proprietor in the presence of two or more credible witnesses,[872] but a licensee who is also a purchaser of any plates for printing may presumably without any document in writing print from the said plates without incurring penalties[873] under 8 Geo. II. c. 13 or 7 Geo. III. c. 38, but _quære_ whether such purchaser would not technically be liable to damages under 17 Geo. III. c. 57. A bare licensee, although a purchaser of plates, could not authorise third persons to print from the plates except as his agent and on his behalf.[874] CHAPTER VII COPYRIGHT IN SCULPTURE SECTION I.--WHAT WORKS ARE PROTECTED. The following works are protected under the Sculptures Act: 1. Every original sculpture:[875] 2. First published within the British dominions:[876] 3. [The author of which is a British subject or resident within the British dominions]:[877] 4. Which bears the proprietor's name and the date [of first publication] thereon:[878] 5. And is innocent.[879] Protection endures for fourteen years from publication, and another term of fourteen years if the author is then alive and retains the copyright.[880] Protection is probably limited by implication to the United Kingdom.[881] =What is an Original Sculpture.=--The work protected is "any new and original sculpture, or model, or copy, or cast of the human figure or human figures, or of any bust or busts or of any part or parts of the human figure clothed in drapery or otherwise, or of any subject being matter of invention in sculpture, or of any alto or basso-relievo representing any of the matters or things hereinbefore mentioned, or any cast from nature of the human figure or of any part or parts of the human figure, or of any cast from nature of any animal or of any part or parts of any animal, or of any such subject containing any of the matters or things hereinbefore mentioned, whether separate or combined."[882] In one case it was contended that the Act only applied to representations of human figures and animals. North, J., however, held that "any new and original sculpture" applied to any subject "being matter of invention in sculpture," and that casts of fruit and leaves used for instruction in drawing were protected.[883] Carefully modelled toy soldiers have been protected as works of sculpture.[884] =The Sculpture must be First Published within the British Dominions.=--The Act provides that protection shall run from the first publication of the work.[885] Before 1886 it is possible that first publication within the United Kingdom was required, now first publication anywhere within the British dominions will vest the copyright;[886] first publication outside the British dominions will destroy it.[887] _Publication._--A work of sculpture is published when the "eye of the public"[888] is allowed to rest upon it, that is to say when the sculpture itself and not merely a photographic copy or sketch is so exhibited that the general public have an opportunity of viewing it.[889] Exhibition in any public gallery such as the Royal Academy would be publication; but a private view in the artist's studio would not be publication. =Author's Nationality.=--It is extremely doubtful whether the author must not at the time of first publication bear some allegiance to the crown by virtue of nationality or residence. If this is so in the case of books,[890] there seems to be no good ground for saying that the statute as to sculpture[891] was intended to be more generous to the foreigner than that as to books.[892] =Proprietor's Name and Date.=--The protection given by the Sculpture Act is conditional on the proprietor or proprietors having caused his, her, or their name or names with the date to be put on every sculpture before the same shall be put forth or published.[893] _Proprietor's Name._[894]--As to what will probably be a sufficient statement of the proprietor's name, see the cases on engravings[895] on which also the proprietor's name is required. As to this provision the two statutes seem to be _in pari materia_ and the cases equally applicable to both. _Date._--It is not stated what date: but there can be no reasonable doubt but that the date of first publication is intended. The older statute governing sculptures[896] (now repealed) required the proprietor's name and "date of publication." The International Act, 7 & 8 Vict. c. 12, in reciting the provisions as to sculptures, runs "and by the said Acts[897] it is provided that the name of the proprietor, with the date of first publication thereof, is to be put on all such sculptures." It should be noticed, however, that both statutes were then in operation and 38 Geo. III. c. 71 had not yet been repealed, so that the recitation in 7 & 8 Vict. c. 12 may apply only to the provision in 38 Geo. III. c. 71, and is not necessarily explanatory of 54 Geo. III. c. 36. There can be no doubt, however, that the omission in 54 Geo. III. c. 56 to state what date was required was an oversight, and everything points to its being the date of first publication that is meant. The statutory protection begins then, and from then the duration of the copyright is measured so that there is strong reason for the public being apprised of the date of first publication, while the date of making, which is the only other conceivable date, is of no importance. When the date affixed was a date a few days before publication, Wright, J., held it was immaterial, as it would only shorten the term of the copyright.[898] =Immoral Works.=--Profane, libellous, or indecent works will not be protected. There are no direct authorities in respect of unlawful works of sculpture, but as in books,[899] paintings,[900] and engravings[901] the general policy of the law not to take an account between wrong-doers will apply. =Duration of Protection.=--Statutory protection commences on publication.[902] Before publication the unpublished work will be protected at common law from any use which may be made of it without the permission of the owner. After publication the statutory protection alone exists and subsists for fourteen years[903] with a further term of fourteen years if at the expiration of the first term the person who originally made or caused the sculpture to be made is alive and has not parted with the copyright.[904] SECTION II.--THE OWNER OF THE COPYRIGHT. =The Artist.=--If a work of sculpture is made by an artist on his own behalf he becomes on publication the proprietor of the copyright if before publication he has not assigned his interest in the work. =The Employer.=--If one procures an artist to make a work of sculpture for him the employer will be _ab initio_ the owner of the copyright without any necessity for assignment from the artist. In order so to vest the work the employer, it would seem, requires to take no part in the invention or design of the work. If he causes the work to be done, he comes within the Act. No valuable consideration need be shown. =The Assignee.=--Assignment must be under seal, _i. e._ by a deed in writing signed by the proprietor in the presence of and attested by two or more credible witnesses.[905] SECTION III.--INFRINGEMENT OF THE COPYRIGHT. =Prohibited Acts and Remedies.=--The Act (54 Geo. III. c. 56) gives to the proprietor "the sole right and property" of works in sculpture. The prohibited Acts are[906]-- 1. Making a pirated copy. 2. Importing a pirated copy. 3. Exposing for sale or otherwise disposing of a pirated copy. 4. Causing any of these acts to be done. The remedy is an action at the suit of the proprietor for[907]-- i. Damages. ii. Injunction. iii. Costs--"a full and reasonable indemnity."[908] _Guilty Knowledge._--Ignorance is no defence to an action in respect of any of the prohibited Acts, even that of selling. _Limitation of Action._--All actions under the Act must be commenced within six months of the discovery of the offence sued on. _Copying for Private Use._--Either making or importing a single copy for private use would technically be an infringement. The prohibition is not limited to making or importing for sale, hire, exhibition, or distribution, as in the case of paintings, &c., under 25 & 26 Vict. c. 68, sec. 6. =What is a Piratical Copy.=--A pirated copy may be "produced by moulding or copying from or imitating in any way any of the matters or things put forth or published under the protection of the Act ... to the detriment, damage, or loss of the proprietor."[909] The prohibition is against "imitating in any way." This prohibition does not seem so wide as that in 25 & 26 Vict. c. 68, which prohibits the multiplication of a painting or drawing or the design thereof. It is more similar to the prohibition in the Engraving Act 8 Geo. II. c. 13, viz., against engraving, &c., "or in any manner copying" a copyright print. It seems therefore to be open to question as with engravings whether a piece of sculpture can be infringed except by some work of art which reproduces the peculiar art of the sculptor. Would a piece of sculpture be infringed by a picture, sketch, or engraving copying the design of the work? Licence would be a defence, and it probably does not require to be in writing. There is nothing in the Act from which the necessity for a licence to be in writing could be implied. CHAPTER VIII COPYRIGHT IN PAINTINGS, DRAWINGS, AND PHOTOGRAPHS SECTION I.--WHAT WORKS ARE PROTECTED. The following works are protected under the Fine Arts Copyright Act, 1862: 1. Every original painting, drawing, and photograph:[910] 2. Not first published outside the British Dominions:[911] 3. The "author" of which is a British subject, or is resident within the dominions of the crown [when the work is made]:[912] 4. Which has been registered before infringement:[913] 5. And is innocent.[914] Protection vests at the date of making, and endures for the author's life and seven years.[915] Protection is limited to the United Kingdom.[916] =Every Original Painting, Drawing, and Photograph.=--There is no attempt to define what is a painting, drawing, or photograph within the meaning of the Act.[917] The substances used in the making are no doubt immaterial, so long as the result is _ejusdem generis_ with what is ordinarily meant by a picture, drawing, or photograph. A painting on the wall of a house would doubtless be protected, but not a design created by grouping figures in a _tableau vivant_.[918] _Originality_ as an essential of protection means that there must be something either in the design or execution of the work which is not merely copied from some other artistic work. The whole work need not be original. Thus the execution may be original but not the design, as in the case of a photograph of an old picture;[919] or part only of the design may be original, as in the case of the design of an old drawing added to or altered. In so far as the work is new there will be protection, but in so far as it is old there will be no protection.[920] _Artistic Merit._--The Court will not inquire as to whether a painting, drawing, or photograph is good, bad, or indifferent. If it consists in the representation of some object by means of light and shade or colour, it will suffice, and even the coarsest or the most commonplace, or the most mechanical representation of the commonest object would be protected so that an exact reproduction of it, such as photography, for instance, would produce, would be an infringement of copyright.[921] Probably there must be a representation of some concrete object, real or imaginary. Protection, for instance, was refused to a label for Eau de Cologne,[922] which merely bore the legend "Johanna Maria Farina gegenüber dem Julichs Platz," written in copperplate with sundry dots and flourishes. It was held that any one who had a right to sell Farina's Eau de Cologne might manufacture and use the label, since although the label was a trade mark there was no copyright in it. A label with anything in the nature of a picture on it would undoubtedly be copyright, as the use to which a work of art is put is immaterial, but it is doubtful whether a label containing merely geometrical figures and fancy dots and lines would be protected under the Act of 1862. Probably it would not. =Publication outside the British Dominions.=--Copyright in works of art under the Act of 1862 begins on the making thereof, and is not dependent on publication. It is immaterial where the work is made, whether in the British dominions or elsewhere, and it would be as immaterial where it was first published, or whether it was published or not, but for the provision of the International Copyright Act, 1844. Section 19 of this Act provides that the maker of a work of art which shall be first published out of the British dominions shall not have copyright therein otherwise than such as he may become entitled to under the International Acts; which means that where there is no treaty a work first published abroad is not protected at all. The result of this section was evidently not contemplated when the Fine Arts Act, 1862, was framed. There seems to be no doubt that the work, wherever made, will acquire copyright immediately on the making, but that that copyright may be lost if the work is published abroad before it is published in the British dominions. _Published._--A painting, drawing, or photograph is probably published when it is so exhibited as to give the public an opportunity of viewing it. The leading case on publication of works of art is _Turner_ v. _Robinson_[923] in the Court of Chancery in Ireland. This case was decided before 1862, and therefore before there was any statutory copyright in paintings. The subject-matter was a painting from which certain stereoscopic views had been taken without the proprietor's consent. The painting had been previously, with the consent of the proprietor, published in the form of an engraving in a magazine, and exhibited at the Royal Academy in London and in Manchester. It was then exhibited with the proprietor's consent in Dublin for the purpose of obtaining contributors to a proposed engraving, and while so exhibited the defendant, without consent, copied it and produced his stereoscopic photographs. The Master of the Rolls[924] thought that the picture had never been published, because the exhibitions to the public in the Academies and in Dublin were on the condition that no copies should be taken, and the engraving in the magazine was not a publication of the picture, but only of a rough representation of it. He therefore held that the common law right in the picture had not been lost by publication, and that the proprietor could recover against the taker of the stereoscopic views as against an infringer of common law rights. The Court of Appeal in Chancery upheld the judgment of the Master of the Rolls, but on different grounds. They said it was unnecessary to decide whether there had been publication in London and Manchester since, in their opinion, the act of the defendant in taking stereoscopic views from the painting was a breach of faith. He was admitted to the view in Dublin for one purpose only, _i. e._ to become if he wished a subscriber to an engraving; but he abused his privilege by taking a copy of the painting which might well compete with the plaintiff's proposed engraving. The defendant was, therefore, restrained on the ground of breach of faith or implied contract. In his judgment the Lord Chancellor disapproved of the view of the Master of the Rolls that there had been no publication in London or Manchester. He thought exhibition in the Academy, even although to a certain extent conditional, would be sufficient publication to vest the copyright, _e. g._ in a work of sculpture under the statutes applicable to such works. Exhibition in a public gallery, therefore, would be publication, but not a private view in the artist's studio to which only a small and selected portion of the public are invited. Whether the publication of a print would be publication of the picture from which it was taken, _quære_; the Master of the Rolls thought not, and on this point the Court of Appeal neither approved nor disapproved. =Nationality or Residence of Artist.=--The protection of the Act is expressly limited to the works of British subjects and of such foreigners as are resident within the dominions of the Crown.[925] There is no direction in the statute as to the time when the author must possess the requisite nationality or residence. Must it be at the time of making or at the time of publishing, or both? It is submitted that it must be at the time of making, since copyright in the work vests at that time, and there may never be publication at all. There seems to be no reason for suggesting that the date to be looked at is the date of publication, except that the next words in the section provide that the work may be made anywhere, and the proviso as to the residence of the author, if applied at the date of making, means that-- 1. A work by a British subject may be made anywhere; but, 2. A work by an alien must be made within the dominions of the Crown. There does not seem to be anything absurdly contradictory in this, and there is, on the other hand, a patent absurdity in not being able to determine whether the author is an author within the Act until long after the right has begun to run. =Registration.=--A condition precedent to protection is registration in the book kept at the Hall of the Stationers' Company. _The Requisite Entry._--There must be registered: 1. Name and place of abode of the "author." 2. Name and place of abode of the proprietor. 3. Short description of the nature and subject of the work. And if desired, 4. A sketch outline or photograph of the work. The wording of section 4 of the Act of 1862 providing for compulsory registration is very confused, the requirements on first registration being unaccountably mixed up with the requirements on subsequent assignment. On first registration whenever it takes place it is submitted that the particulars entered should be as above.[926] The author and proprietor may very likely be the same individual, in which case the one name will be entered twice, once under each description. It would probably not be sufficient merely to enter the author's name once as author and leave it to be implied that he is the owner. Even if the author and proprietor are different persons, either because the author has been employed for valuable consideration or because he has granted an assignment, the particulars to be entered on first registration are the same, no entry of the terms of employment or assignment being necessary.[927] The real proprietor must be on the register, and if the wrong person is registered as proprietor it will not give a cause of action to join such person as co-plaintiff with the real proprietor who is not on the register.[928] As in the Literary Copyright Act, copyright in the work exists before registration, but no action is maintainable without registration, and under this Act even after registration there is no remedy in respect of infringement committed before registration.[929] It need hardly be said that the necessity of registration only applies to an action on copyright proper, and an action will without registration lie on breach of contract, express or implied,[930] and probably on the common law right of an author and his assigns in unpublished work.[931] If an unauthorised copy is made before the proprietor is registered but sold afterwards, an action for damages will lie for the offence of selling such copies, but no action for penalties.[932] No action at all will lie for making.[933] If an action is brought by an assignee, such assignee must be on the register as proprietor,[934] and it will not avail to join as co-plaintiff an unregistered assignee with the assignor who although registered has parted with the copyright.[935] An assignee taking from a registered assignor probably cannot sue in respect of acts of infringement committed before the registration of the assignment.[936] It is not necessary that the original proprietor, whether author or employer, should have been registered,[937] but once registration has been effected it would seem that all future assignments must be entered on the register.[938] The registration by an assignee under an assignment, subsequent to first registration, must contain the following particulars:[939] 1. Date of assignment. 2. Names of parties to the assignment. 3. Name and place of abode of the assignee. 4. Name and place of abode of the author. 5. Short description of nature and subject of the work. And if desired, 6. A sketch outline or photograph of the work. The enactments of 5 & 6 Vict. c. 45 (the Literary Copyright Act) as to 1. Keeping the Register Book; 2. Searches and certified copies therefrom; 3. False entries; 4. Application to expunge, apply _mutatis mutandis_ to registration of paintings, drawings, and photographs. The charge for making an entry is one shilling. _Name._--The trading style of a firm is a sufficient registration of the name of a proprietor. _Place of Abode._--The place where a man can readily be found on inquiry is sufficient. A business address is a "place of abode" within the statute. _Short Description of the Nature and Subject of the Work._--The title of the work will sometimes be a sufficient description. The following were held sufficient descriptions of Sir John Millais' well-known pictures, viz.: "Painting in oil, 'Ordered on Foreign Service'"; "Painting in oil, 'My First Sermon'"; "Photograph, 'My Second Sermon.'"[940] Blackburn, J., said: "It is the object of the legislature that enough be stated to identify the production, and that the registration must be _bonâ fide_, that a man shall not first claim one thing and then sue for another. The description must be such as shall earmark the subject.... The picture 'Ordered on Foreign Service' represents an officer who is ordered abroad taking leave of a lady, and no one can doubt that is the picture intended.... There may be a few instances in which the mere registration of the name of the picture is not sufficient: for instance, Sir Edwin Landseer's picture of a Newfoundland dog might possibly be insufficiently registered under the description of 'A Distinguished Member of the Humane Society.' So also of a bullfinch and a couple of squirrels described as 'Piper and a Pair of Nut-crackers.' ... It would be advisable for a person proposing to register to add a sketch or outline of the work."[941] In the learned judge's opinion deficient description although it would not be sufficient in itself, may be made sufficient by the addition of a photograph, sketch, or outline. It would seem, however, that there must be a description of some kind, and that a photograph or sketch would not by itself be sufficient. =Immoral Works.=--There will be no copyright in profane, libellous, or indecent[942] works of art. =Duration of Protection.=--The copyright under the Fine Arts Act endures for the term of the natural life of the "author" and seven years after his death.[943] Copyright will cease if and when any painting or drawing or the negative of any photograph is sold by the first owner thereof without either the express reservation in writing of such copyright to the vendor signed by the vendee or his agent, or the express assignment in writing of such copyright to the vendee signed by the vendor or his agent.[944] The copyright will also cease (probably) if the work is published out of the British dominions before publication within the dominions.[945] SECTION II.--THE OWNER OF THE COPYRIGHT. =The Author.=--The copyright is given to "the author and his assigns," except when the work is executed for or on behalf of any other person for a good or valuable consideration.[946] The author is the actual artist whose mind has created the work.[947] The giving of ideas and suggestions to another is not sufficient to constitute an author,[948] but, on the other hand, there might be an author who had done little or nothing of the manual work required in the execution. In _Nottage_ v. _Jackson_ the question of authorship in works of art was fully discussed. Brett, M. R., said: "The author of a painting is the man who paints it, the author of a drawing is the man who draws it,... of a photograph the author is the person who effectively is as near as he can be the cause of the picture which is produced, that is, the person who has superintended the arrangement, who has actually formed the picture by putting the people into position and arranging the place in which the people are to be--the man who is the effective cause of that. Although he may only have done it by standing in the room and giving orders about it, still it is his mind and act, as far as anybody's mind and act are concerned, which is the effective cause of the picture such as it is when it is produced." Cotton, L. J., in the same case, said: "In my opinion 'author' involves originating, making, producing, as the inventive or master mind, the thing which is to be protected, whether it be a drawing or a painting or a photograph.... It is not the person who suggests the idea but the person who makes the painting or drawing who is the author." =The Employer.=--When an artistic work, protected by 25 & 26 Vict. c. 68, is executed by the author for or on behalf of any other person for a good or valuable consideration, the copyright vests in the employer and his assigns, unless it be expressly reserved to the author by agreement in writing signed by the employer.[949] This provision applies to the everyday case of a person employing and paying a painter or photographer to take his portrait. The copyright vests in the customer.[950] The case, however, is not always so simple. Difficult questions arise where the artist, usually a photographer, requests the sitter, probably an actress or athlete, to allow his portrait to be taken on the understanding that the artist may publish and sell copies.[951] The sitter probably receives free copies or copies at a reduced price. The difficulties to be solved are purely questions of fact in each case, viz.: 1. Was the portrait taken for or on behalf of some person other than the artist? 2. Did the artist receive good and valuable consideration? As a rule, where a photographer invites celebrities to sit for him, the understanding will be that the portrait is taken on the photographer's behalf;[952] but at the same interview some plates might be taken on behalf of the photographer and some on behalf of the sitter.[953] The valuable consideration received by the photographer need not be a money payment, but may consist merely in the right given to him to publish and sell copies.[954] When a managing director of a company employed A to make drawings for a trade catalogue, the letterpress of which he wrote himself, it was held that he was acting merely as agent for the company, and that as the drawings were made not on his behalf but on behalf of the company he was not the proprietor.[955] =The Assignee.=--Assignment is required to be by some note or memorandum in writing signed by the proprietor of the copyright or his agent appointed for that purpose in writing.[956] Registration is not necessary to effect assignment,[957] although the assignee must be registered before he can sue.[958] No particular words are required in an assignment,[959] but there must be a present grant and not only an executory contract.[960] _Partial Assignment._--It is doubtful whether a copyright can be partially assigned, either limited as to a copying of a particular kind or limited as to place or time.[961] What is called by the parties an assignment may only amount to a licence. In _Lucas_ v. _Cooke_[962] the proprietor of the copyright in a picture granted the following document to an engraver: "I assign to you for the purposes of an engraving of one size the copyright of the picture painted by Mr. E. V. Eddie, entitled "Going to Work," and being a portrait of my daughter." Fry, J., said: "The result of this instrument in my view was that after the preparation of the engraving and the registration, Mr. Lucas (the engraver) became the owner of the copyright of the print or engraving, and Mr. Halford remained the owner of the copyright of the painting." It was held that the engraver, in order to succeed against a copyist, would have to show that the alleged infringement was a copy of his engraving, another copy of the picture itself was no infringement of his rights. The transaction was a licence, and probably a licensee can never sue in his own name. In one case,[963] however, Mathew, J., held that a sole licensee for a limited time could sue, and did not require to be registered. The plaintiff had acquired from the proprietor of the copyright in a picture the sole right to reproduce it in chromo for two years. The defendants also produced a chromo of the picture taken directly from the picture and not from the plaintiff's chromo. Mathew, J., held that the plaintiff, as sole licensee, was entitled to prevent any one infringing his right, and that being a licensee and not an assignee, his name was not required to be on the register. This is a very doubtful decision. SECTION III.--INFRINGEMENT. =Prohibited Acts and Remedies.=--The right given is "the sole and exclusive right of copying, engraving, reproducing, and multiplying a painting or drawing and the design thereof, or a photograph and the negative thereof by any means and of any size."[964] It is an offence for the author having parted with the copyright, or for any other person not being the proprietor[965]-- 1. To repeat, copy, colourably imitate or otherwise multiply for sale, hire, exhibition, or distribution. 2. Knowingly to import into the United Kingdom, or sell, publish, let to hire, exhibit, or distribute, or offer for sale, hire, exhibition, or distribution any copy unlawfully made. And for any of the above offences an action lies at the instance of the proprietor for[966]-- i. Sum not exceeding £10 on each copy made or dealt with.[967] ii. Forfeiture of copies to the proprietor.[968] iii. Inspection and account.[969] iv. Damages.[970] v. Injunction.[971] Penalties and forfeiture of copies may also be obtained by summary proceedings before any two justices having jurisdiction where the party offending resides.[972] It is further an offence-- 3. Innocently to import or sell, publish, let to hire, exhibit, or distribute, or offer for sale, hire, exhibition, or distribution any copy made without the owner's consent. For any of which an action lies at the instance of the proprietor of the copyright for[973]-- i. Damages. ii. Delivery up of copies, iii. Inspection and account.[974] iv. Injunction.[975] In addition to sections 6 and 11, where importing is treated as an infringement involving penalties and damages, section 10 contains a direct prohibition against importing copies "made contrary to the provisions of the Act," and on the declaration of the proprietor such copies may be detained by the officers of Customs.[976] _Cause or Procure._--It is equally an offence to "cause or procure" any of the above acts.[977] It may be sometimes difficult to determine whether a person has "caused or procured" within the meaning of the section. In _Bolton_ v. _London Exhibitions_[978] the defendants ordered a poster for the advertisement of their exhibition at Earl's Court; they gave the lithographer a general idea of what was wanted, and told him to do his best. The lithographer, in preparing the poster, infringed the copyright in the plaintiff's photograph of a lion. It was held that as the defendants did not authorise the reproduction of the plaintiff's lion they had not "caused or procured" the infringement complained of; the action against them was therefore dismissed, but without costs, as they should have exercised more care in the matter. _Innocent Agent._--If a publisher procures a printer to strike off copies of an infringement, the printer is liable even although he is entirely innocent. It was argued in _Baschet_ v. _London Illustrated_[979] that the printer was only liable if he printed for his own use, and that if another caused or procured him to print, it was only the person causing or procuring who was liable. It was held that both the employers and employees were liable for the same offence. _Unlawful Copy._--If a copy is made in a foreign country in which the proprietor's copyright is not protected, such copy is not a copy "unlawfully made," and therefore no penalties will attach under section 6 for knowingly importing or selling such copy;[980] but under section 11 damages may be sued for, since under that section it is an offence to import or sell copies made without consent, and delivery up may be claimed under the same section, because such copies when offered for sale become unlawful copies although not unlawfully made.[981] The same distinction applies to selling or importing copies made before registration, such copies not being "unlawfully made."[982] _Separate Offence._--Each piratical copy made or dealt with, and not only each transaction, is an offence under section 6, and involves a separate penalty.[983] Blackburn, J., says in _ex parte Beal_:[984] "It would be a monstrous absurdity if a man might import a cargo of pirated works from France and £10 be the utmost penalty that could be imposed. Such a state of the law would render it worth a man's while to do wrong."[985] It was held in several cases[986] that as 1/4d. was the smallest coin of the realm, the minimum penalty must be 1/4d. for each copy. This has now been overruled in the Court of Appeal in _Hildesheimer_ v. _Faulkner_,[987] and a fraction of 1/4d. can be assessed as the penalty. _Copying for Private Use_ will probably not be actionable, since the offence is to copy, &c., for sale, hire, exhibition, or distribution.[988] Gratuitous distribution would, however, be actionable. _Action on Breach of Contract._--Although no action may lie for infringement, either because the party aggrieved has no copyright or is not duly registered, there may be a remedy for breach of contract express or implied. Thus if A contract to make copies of B's drawing, even although B has no copyright therein, it is a breach of contract for A to make any copies other than for the use of B.[989] And again, a photographer who has been employed by a customer to take his portrait is not justified in striking off copies of such photograph for his own use, or selling or exhibiting them by way of advertisement or otherwise, without the authority of such customer express or implied, and even although the customer is not registered as proprietor of the photograph.[990] _Fraudulent Acts._--The following acts if committed fraudulently are rendered penal by the Act:[991] 1. To affix any name, initials, or monogram on any work.[992] 2. To sell, exhibit, &c., a work bearing false name, initials, or monogram. 3. To represent a copy as the work of an original "author." 4. To sell or publish an altered work as the unaltered work of an original "author." For any of these fraudulent acts the person aggrieved may recover by action[993]-- i. Sum not exceeding £10 or double the full value of the fraudulent works. ii. Delivery up of the fraudulent works. iii. Injunction. But such penalties will not be incurred if the person whose name or work has been fraudulently dealt with has been dead for more than twenty years. _Limitation of Action._--There is no special limit fixed by the Act of 1862, and therefore the remedy on an offence within the statute will not be barred for six years.[994] _Evidence._--In any action for the infringement of copyright in a picture, it will be sufficient to produce in evidence an authenticated copy of the picture, _e. g._ a photograph with the oral evidence of the photographer.[995] =What is a Piratical Copy.=--_No Monopoly._--There can be no monopoly of the subject-matter of a painting, drawing, or photograph. Another artist may independently represent the same scene or object as that represented in a copyright work.[996] _What is a Copy._--A piratical copy need not necessarily be an artistic work of the same kind as the work pirated. Thus an oil painting is infringed by a photograph of it,[997] and a photograph may be infringed by a pencil sketch.[998] An infringement may consist of either a taking of the design or a taking of the method of execution, or both. Thus an infringement need not even be a kind of work which would be protected by this Act. Although there is no direct authority, it is clear from section 2, which gives the exclusive right to the design of the work protected, that an engraving would be an infringement of a painting, drawing, or photograph, and so perhaps might a piece of sculpture.[999] Then again the design may not be copyright, for instance, in the case of a photograph of a non-copyright picture, and yet it would be an infringement to take a photograph of such a photograph. That would be a taking of the method of execution.[1000] The infringement must be an artistic work of some kind, _i. e._ such a work that would be protected if not under the Act of 1862, under the Engraving Acts or Sculpture Act. In _Hanfstaengl_ v. _Empire Palace_[1001] the Court held that the grouping of people on a stage so as to form _tableaux vivants_ was not an infringement in the copyright of a picture thus represented. Kay, L. J., in his judgment, said: "Could it possibly have been said the _tableaux vivants_ were pictures within the sense of this Act, and does not a reproduction mean something in which, if the original author of the painting had himself produced it, he might have had copyright." _General Idea may be Taken._--It is not an infringement to take merely the general idea of subject-matter and treatment from a copyright work of art. In _Hanfstaengl_ v. _Baines_,[1002] the _tableaux vivants_ which were the subject of the last case cited were sketched and reproduced in the _Daily Graphic_. It was contended that these sketches infringed the copyright in the pictures from which the _tableaux vivants_ were taken. The House of Lords, affirming the judgment of the Court of Appeal, held that they did not. Lord Herschell, L. C., in giving judgment, pointed out that the essence of the design varied according to the nature of the picture. Sometimes it might be principally in the grouping of the figures, sometimes in the pose and countenances. Referring to one of the sketches complained of, he said: "There is no doubt a resemblance between the sketch and the photograph from the painting. In each case a young man and a young woman are standing beside one another close to a stile or fence. In each case the woman is shading her head by a parasol, and the dress of the man is somewhat similar in the two, but the idea of a young man courting a young woman at a country stile is of great antiquity. It has often formed the subject of pictorial representation. This cannot be said to be the design of the plaintiff's painting within the meaning of the Act. Much more must be comprehended than this. There can only be a copy of such design if the treatment of the subject be the same. Now, comparing the sketch of the photograph from the painting, I do not think this can be said to be the case. The faces are different, the dress especially in the case of the woman is different, the pose is different, the attitudes are different, the backgrounds are different, and in the case of the sketch the foreground is wanting. In the artistic design all these things play a part, although I do not say that a variation in one or even more of these respects would prevent the sketch being a copy of the design. Yet, comparing the two and considering the design of the painting as a whole, I cannot avoid the conclusion that the sketch is not a copy of the painting or of the design thereof, and therefore there has been no infringement." His lordship concluded by saying that such questions really depended on the effect produced on the mind by a study of the picture and of that which is alleged to be a copy of it. In _Guggenheim_ v. _Leng_[1003] the plaintiff was the owner of the copyright in a photograph of a football team. The defendant, without authority, made from the photograph rough sketches of the various individual portraits, and published them in his newspaper. It was held not to be an infringement. _Material Part._--There is no piracy of an artistic work unless a material part of the work is taken. What amounts to a material part must be a question of fact in each case, and it is impossible to lay down any definite rule. In _Moore_ v. _Clarke_[1004] a horse was taken from a copyright print and inserted in another print among different surroundings. In the second print the horse appeared to be going in a different direction, and the jockey on his back was differently dressed. The judge directed the jury to consider whether the defendant's engraving was substantially a copy of the plaintiff's, and the jury came to the conclusion that it was not. In _Brooks_ v. _Religious Tract Society_[1005] a collie dog, identical in expression, attitude, and position, was, together with a wall in the background and a table, taken from a copyright picture and inserted in a woodcut. The woodcut differed from the picture in that the figure of a child was omitted, and in its place two cats and a tortoise and other details were inserted. Romer, J., held that there was a piracy: "It was not only the dog that was taken, but also the feeling and artistic character of the plaintiff's work.... If a person were to take an historical picture, and take out of it the principal figure, and reproduce that figure without the other surroundings, that would be an infringement. The present case was a stronger case, because the defendants had not only taken the principal figure of a dog, but copied as well the sentiment of the picture." _Indirect Taking._--It is equally an infringement, although the copying is indirect.[1006] Thus, for instance, the photograph of an engraving may infringe the copyright of the picture from which it is taken.[1007] _Guilty Knowledge._--It is no defence to say that the taking was an innocent one and unintentional.[1008] In the case of a claim for penalties in respect of importing or selling piratical copies, knowledge of infringement must necessarily be proved, but in no other case. But the question of intention cannot always be wholly disregarded, as it may guide the Court in determining whether the alleged infringement is a copy or not.[1009] _Replicas._--It is an infringement of the proprietor's right for an author who has parted with his copyright to make a replica of the work; but if he has made replicas before selling his copyright it would be no infringement to sell these replicas. _Quære_ whether it would be an infringement after selling his copyright in the original work to take photographs or engravings of the replicas; probably it would. _Licence a Defence._--Licence must be in writing, signed by the proprietor of copyright or by his agent authorised in writing;[1010] but probably an oral consent would be a good defence.[1011] An assignee is not bound by a licence granted by the assignor before the assignment, unless he has notice of it.[1012] The licensee will be kept strictly within the limits of his licence. When a licence was granted to reproduce a photograph in one magazine, it was held an infringement of copyright to reproduce it in another, and the contention that there was a custom in the publishing trade allowing this to be done on tender of payment was characterised as ridiculous.[1013] CHAPTER IX COLONIAL COPYRIGHT Every British Possession has the power to legislate independently as regards the protection within its own territory of literary or artistic works first produced therein.[1014] In respect of such works they may either limit or extend the protection afforded by the Imperial Acts. Most of our larger colonies have local Acts.[1015] Some of the colonies[1016] have, for instance, created a copyright in the news contained in foreign telegrams, a monopoly unknown under the Imperial Acts. It is not proposed here to deal with the colonial local Acts. They are of interest only in the various colonies themselves. This chapter will be restricted to the rights of a work published in one part of the British dominions to receive protection in any other part of the British dominions. This is controlled by the Imperial Copyright Acts, which extend since 1886 to every British Possession, and protect works published anywhere therein apart from any local legislation. =Books.=--Before 1886, the Copyright Act, 1842, although it applied to the whole of the British dominions, only protected those books which were first published in the United Kingdom. A book, therefore, published first, say in Canada or Australia, received no copyright protection except by local legislation, if any, within the territory of the particular colony where it was first published. A book first published in the United Kingdom was protected in every British colony, not only against copying but against the importation of reprints. The smaller and poorer colonies found this a considerable grievance. They alleged that they were unable to afford the price of English books, and that as they were prohibited from importing foreign reprints and had little or no contemporary literature of their own, they were reduced to reading the classics or nothing at all. The Colonial Copyright Act, 1847,[1017] was passed to give them relief. It enacts that when reasonable protection to the British author shall be provided in any British possession by the legislature of such possession, Her Majesty may, by Order in Council, declare that so long as such protecting provision shall be in force all Acts prohibiting the importation or sale or hire of foreign copies shall be in respect of such possession suspended. Altogether twenty colonies[1018] have taken advantage of this Act. It has been found, however, that the protecting provisions are of little value, and that the duties which are supposed to be levied on foreign reprints for the benefit of the British author are continually evaded, and the colonies under the Foreign Reprints Act are overrun with foreign reprints of popular books which, coming in practically free of duty, make the authors' copyright in such colonies absolutely valueless. Books first published in the colonies received Imperial protection in 1886, when the International Copyright Act[1019] of that year was passed. It enacts that the Copyright Acts shall apply to a literary or artistic work first produced in a British Possession in like manner as they apply to a work first produced in the United Kingdom,[1020] with a proviso, firstly, that the enactments as to registration shall not apply if the law of the Possession in question provides for registration; and, secondly, that no delivery of copies shall be required. There is also a provision for evidence of colonial copyright by certified extract from the colonial register. _Canada_ came under the Foreign Reprints Act, and, as a result, was so inundated with cheap reprints from the United States that the Canadian publishers, in 1875, obtained a local Act for their protection.[1021] This Act enacts that works of which the copyright has been granted and is subsisting in the United Kingdom, and copyright of which is not secured or subsisting in Canada under any Canadian or provincial Act, shall, upon being printed and published or reprinted and republished in Canada, be entitled to copyright under the Canadian Act.[1022] It prohibits _inter alia_ copying and importation of foreign copies, but nothing in the Act is to be held to prohibit the importation from the United Kingdom of copies of such works legally printed there. The Canadian Act is confirmed by an Imperial Act, the Canada Copyright Act, 1875,[1023] and this enacts that the Canadian copies of a British book may not be imported into the United Kingdom without the author's consent. Although Canada came under the Foreign Reprints Act, 1847,[1024] and in accordance therewith imposed duties on foreign reprints for the benefit of the owner of the copyright, the collection of those duties has now been abandoned by the Tariff Customs Act (Canada), 1894,[1025] the result of which is that as regards Canada the provisions of the Imperial Copyright Act, 1842,[1026] section 17, are revived and the importation of foreign copies of works having an Imperial copyright is again prohibited.[1027] The same result will occur in other colonies which may by statute abandon their enactments for the collection of authors' duties. The Canadian Legislature has recently passed a Copyright Act[1028] purporting to affect the importation into Canada of books published under an Imperial Copyright. The Act provides that if a book has acquired Imperial Copyright by first publication in the British dominions outside Canada, and a licence has been granted for its reproduction in Canada, the Canadian Minister of Agriculture may prohibit the importation into Canada of any copies of such book printed out of Canada and imported without the licensee's consent. I think it is doubtful whether the last-mentioned Act is not _ultra vires_ of the Canadian Legislature. The Canadians have, since the British North American Act, 1867, claimed that they have the exclusive power of legislating in respect of and regulating copyright within the Dominion of Canada. This claim, however, has not been recognised in the Canadian courts. In _Smiles_ v. _Belford_[1029] a book was copyrighted in England, but not under the local Act of 1875 in Canada. An action was brought by the proprietor to restrain a reprint of the book in Canada. The defendants pleaded that the book was not protected in Canada since it was not copyrighted under the local Act. They argued that the British North American Act, in giving to the Parliament of Canada "exclusive legislative authority" in certain matters, including copyrights, excluded the operation of the Imperial Acts in Canada. They further argued that the confirmation of the Canadian Copyright Act, 1875, by the Imperial Parliament impliedly repealed the Imperial Copyright Act of 1842 in so far as it extended to Canada. The Court held that neither of these arguments was sound. With reference to the argument on the British North American Act, Burton, J. A., in the Court of Appeal, said: "It is clear, I think, that all the Imperial Act intended to effect was to place the right of dealing with colonial copyright within the Dominion under the exclusive control of the Parliament of Canada, as distinguished from the provincial legislatures.... I entirely concur with the learned Vice-Chancellor in the opinion he has expressed that under that Act no greater powers were conferred upon the Parliament of the Dominion to deal with this subject than had been previously enjoyed by the local legislatures." As regards the Imperial Act confirming the Canada Copyright Act, 1875, the Court held that it was passed merely to resolve doubts which would otherwise have arisen as to whether the Canada Copyright Act was not repugnant to the provisions of the Foreign Reprints Act, 1847, and the Order in Council thereunder applicable to Canada. Burton, J. A., said: "It is scarcely reasonable to suppose that if the Imperial Parliament had thought fit to accept the Canadian enactment as a substitute for the 5 & 6 Vict. they would not have repealed it so far as it affected Canada in express terms, or that when stating a reason for Imperial legislation they would have confined themselves to a reference to the Order in Council, which dealt only with a portion of the prohibition referred to in that statute. I am of opinion, therefore, that they have stated the only reason which rendered it expedient to seek a confirmation of the Provisional Act, and that it was intended to preserve intact so much of the Imperial Act as prohibits the printing of a British copyright work in Canada, but giving to the author a further right on certain conditions of securing a Canadian copyright and thus preventing the importation into Canada of foreign reprints." For some considerable time before the passing of the Canadian Act of 1900, the Canadians were negotiating for a clause in the Copyright Bill in this country enabling them to pass a similar provision to that which they have now passed without Imperial sanction. A clause was inserted in Lord Monkswell's Literary Copyright Bill, 1900, proposing to give to all the colonies such a power of protecting licensees. The Canadians, however, impatient of the delay in copyright reform in this country, passed their own Act without waiting to obtain authority. It would certainly be satisfactory to see it confirmed by an Imperial statute. _Summary of Provisions in respect of Books._--The result of the various enactments with reference to the colonies is that, as regards copying, every book first published in any part of the British dominions is protected in every other part of the British dominions. The book must be duly registered either in the colony or dependency where it is produced, or, if such colony or dependency does not provide a proper system of registration, at Stationers' Hall in London. The protection within the colony in which a book is first produced depends on local legislation if such overrides the Imperial legislation. As to importation of copies, the result is not so simple, but it may be summarised thus: If a book has been first published anywhere within the British dominions, the following prohibitions apply: I. _The United Kingdom._--There shall not be imported into, or sold in, without the consent in writing of the owner of the copyright-- Copies printed outside the British dominions.[1030] Copies printed in Canada under the Canadian Act.[1031] II. _Canada._--If the book has been printed and published, or reprinted and republished,[1032] and registered in Canada, there shall not be imported into, or sold in, without the consent in writing of the owner of the copyright-- Copies printed outside Canada[1033] unless legally printed in the United Kingdom under an Imperial copyright existing prior to the acquirement of a Canadian local copyright.[1034] If a book has acquired Imperial copyright by first publication within the British dominions outside Canada, and the owner of the copyright has granted a licence to reproduce it in Canada, there shall not be imported (if the Minister of Agriculture so order) without the consent in writing of the Canadian licensee-- Copies printed outside Canada.[1035] In other cases these shall not be imported or sold without the written consent of the owner of the copyright-- Copies printed outside the British dominions. III. _Colonies under the Act of 1847 other than Canada._--There is no prohibition except the nominal import duty on copies printed outside the British dominions. IV. _Other Colonies._--There shall not be imported into or sold in without the consent in writing of the owner of the copyright-- Copies printed outside the British dominions.[1036] =Artistic Works.=--We have seen that since the International Copyright Act, 1886, there is complete protection throughout the whole of the British dominions for books first published anywhere therein. It was evidently intended that artistic works should be placed on the same footing, but unfortunately the distinction between the literary and artistic Acts was overlooked. The Copyright Act, 1842, protected books published in the United Kingdom, but expressly extended the protection to the whole of the British dominions. None of the artistic copyright Acts extend their protection beyond the United Kingdom. The Engraving Acts expressly limit their protection to the United Kingdom;[1037] the Paintings, Drawings, and Photographs Act expressly limits its remedies to the United Kingdom;[1038] and the Sculpture Act is silent as to the extent of its protection.[1039] The result seems to be that although since 1886 all works of art first published anywhere throughout the British dominions will be protected by Imperial legislation, that protection extends no further than the United Kingdom. This has been decided by a divisional Court in Canada in respect of the Paintings, Drawings, and Photographs Act, 1862.[1040] The decision will apply _a fortiori_ to engravings. Sculptures may be different, in that there is no express limit contained in the Sculptures Act; but probably a limitation of protection to the United Kingdom will be implied. The result is that artistic works are only protected in the Colonies and dependencies under local legislation. CHAPTER X INTERNATIONAL COPYRIGHT =Works first produced in His Majesty's Dominions= are protected in those foreign countries with which there is a treaty for the mutual protection of literary and artistic rights. These countries are the signatories of the Berne Convention,[1041] and Austria-Hungary, with which there is a separate treaty on similar lines. Generally it may be presumed that each of these countries has by domestic legislation given full effect to the international agreement, and that all works which are protected in this country, and would have been protected if first produced in the foreign country in question, will receive the same protection there as would be accorded to a work first produced in such foreign country. The protection, however, must be sought in the foreign country and not here. The Courts of this country will not grant any redress for the infringement of a British author's copyright in a foreign State, even although such infringement be perpetrated by a British subject resident in England.[1042] =Works first produced in foreign countries with which this country has no treaty= are in no way protected from infringement in the United Kingdom, unless they are produced within His Majesty's dominions simultaneously with their production elsewhere.[1043] =Works first produced in foreign countries with which this country has a treaty= are protected from infringement in His Majesty's dominions by the domestic legislation of the United Kingdom. Before December 6, 1887, foreign works were protected by virtue of the International Copyright Acts of 1844, 1852, and 1875, and numerous Orders in Council, now revoked, giving effect to treaties with various foreign States. As the subsequent provisions under the International Copyright Act, 1886, are retrospective, it is unnecessary to examine the old law in any detail. On one important point, however, it will be necessary to mention some of the provisions of the International Copyright Acts which were applicable before December 6, 1887, since the subsequent legislation, in giving protection to works which were produced before that date and were then unprotected, enacts that its retrospective effect shall not prejudice rights and interests lawfully acquired before it came into operation. The law before 1887 has to be examined to determine what these rights and interests are. Since December 6, 1887, the rights of foreign authors in His Majesty's dominions have depended on the provisions of the International Copyright Acts of 1844, 1852, 1875, and 1886, the Berne Convention of 1887, and an Order in Council of November 28, 1887. To these are now added the Additional Act of Paris, 1896, and an Order in Council of March 7, 1898. These may now all be read together, and apply to all foreign works first produced in the countries to which they are applicable. It should be mentioned here that Austria-Hungary has a convention of its own, and in dealing with works produced there that convention and the Orders in Council giving it effect must be substituted for the Berne Convention and Additional Act of Paris and the Orders in Council above mentioned. Norway has not become a signatory of the Additional Act of Paris, and therefore in dealing with works produced there the Berne Convention must be read as unmodified by the Additional Act. It is proposed to deal here in detail with the provisions of the Acts, Orders in Council, and treaties as they apply to the majority of the foreign countries, _i. e._ those which are signatories of the Berne Convention and the Additional Act of Paris. As regards Norway and Austria-Hungary the law differs very slightly. The law applicable to Norway can easily be ascertained by reading the Berne Convention without the Additional Act. The law applicable to Austria-Hungary is almost identical, except that it affords protection in the United Kingdom and all colonies except Canada, the Cape, New South Wales, and Tasmania, and not in the whole of His Majesty's dominions, as in the case of the signatories to the Berne Convention. The countries whose works are protected in His Majesty's dominions are as follows: Germany } Belgium } Spain } France } Haiti } Signatories of the Berne Italy } Convention, 1887, and Additional Switzerland } Act of Paris, 1896. Tunis } Monaco } Luxembourg } Japan } Norway Signatory of the Berne Convention, 1887. Austria-Hungary Having a separate convention, April 24, 1893; given effect to by Orders in Council, April 30, 1894, and February 2, 1895. =What Foreign Works are entitled to Protection.=--Those works are protected which are first produced in any of the foreign countries of the Union, and which-- (_a_) Are protected by the law of the country of origin, and: (_b_) Would have been protected in the United Kingdom if first produced in the United Kingdom. _Produced._--"Produced" means, as the case requires, published or made, or performed, or represented,[1044] or, in other words, the act which is deemed to vest the author or publisher of the work with exclusive rights of reproduction or publication. Thus in the United Kingdom a book or an engraving or sculpture is produced when it is first published. A painting is produced when it is made. A musical or dramatic work as regards the performing right is probably produced[1045] when it is first performed or represented. But it would seem that, in considering when a work is produced, the law of the foreign country or countries in question must first be inquired into, and it will be considered to be produced in the country where an act is done which first invests it with protection in the nature of copyright. If a work is produced simultaneously in two or more countries of the Union, it is deemed to be first produced in that country where the term of copyright accorded to it is shortest. And if a work is produced simultaneously in His Majesty's dominions and in one or more of the foreign countries of the Union, and according to the above rule is deemed to be first produced in a foreign country, it will be protected under the International Acts and not under the Copyright Acts applicable to works first produced in the United Kingdom, and _vice versâ_. If a work is produced simultaneously in a foreign country not within the Union and in a foreign country within it, it would no doubt be deemed to be first produced in the foreign country within the Union, although there is no legislative enactment to this effect. _Character of Work._--In order to obtain protection in this country, a foreign work must be such as is protected in the country of origin.[1046] In each case, therefore, it is necessary to inquire into the laws of the country where the work is deemed to have been first produced.[1047] The work must also be such as would have obtained protection if first produced in the United Kingdom,[1048] and it is therefore necessary in each case to inquire also into the law of this country.[1049] _Unpublished Works._--Unpublished works of foreign authors are expressly included in the convention as works entitled to protection.[1050] If, therefore, they are protected in the country of origin, and would be protected if they had been the works of British authors, they are entitled to protection within His Majesty's dominions. In the case of unpublished works the country to which the author belongs is considered the country of origin.[1051] _Special Provisions._--There is also express stipulation in the conventions as to the inclusion of the following works: Posthumous works:[1052] Authorised translations (to be protected as original works):[1053] Photographic works and works produced by an analogous process:[1054] Choregraphic works.[1055] =Works produced in Foreign Countries before December 6, 1887.=--As is explained above the international treaties and domestic legislation in this country are retrospective, and apply to all works whenever produced. The International Act, 1886, sec. 6 (1),[1056] provides that-- "When an Order in Council is made under the International Copyright Acts with respect to any foreign country, the author and publisher of any literary or artistic work first produced before the date at which such order comes into operation, shall be entitled to the same rights and remedies as if the said Acts and this Act and the said Order had applied to the said foreign country at the date of the said production." The Berne Convention, article 14, provides that-- "The present convention applies to all works which at the moment of its coming into force have not yet fallen into the public domain in the country of origin."[1057] It was suggested that these retrospective provisions only applied to works produced between the date of the Act of 1886 and December 6, 1887, _i. e._ the date at which the Order in Council of November 28, 1887, came into operation.[1058] Charles, J., however, refused to accept such a construction, and said that he felt no doubt that section 6 of the International Copyright Act, 1886, applied to all literary and artistic works produced before the date at which the Order in Council came into operation, whether they were produced before or after the passing of the Act.[1059] In _Lauri_ v. _Renad_[1060] it was held by the Court of Appeal that when under the older law a right of translation in this country had existed, and had expired by lapse of time, the Act of 1886 would not operate to revive such a right, even although the rights of reproduction and translation still subsisted in the country of origin. This is generally thought to be an unsound decision, as the proper test in such cases is whether the right has fallen into the public domain, not in this country but in the country of origin. =Formalities required in case of Foreign Works.--= _In the Country of Origin_-- All such formalities must be observed as are necessary to entitle to protection under the domestic law of such country.[1061] _In the United Kingdom_-- 1. Registration or delivery of copies to the libraries is unnecessary.[1062] 2. Musical works must bear a notice of reservation on each authorised copy, otherwise the performing right will be lost.[1063] 3. Whether other formalities such as name and date of publication on an engraving,[1064] name and date on sculpture,[1065] are necessary _quære_. Before 1886 registration and delivery of copies of a foreign work was required by the Act of 1844[1066] and various Orders in Council in pursuance thereof. The Act of 1886, however, enacts[1067] that the provisions of the Act of 1844 as to registration and delivery shall not apply to works produced in a foreign country except in so far as provided by the Order in Council referring thereto. The Order in Council of 1887[1068] makes no provision as to registration and delivery, and revokes all the previous Orders in Council which did. In _Fishburn_ v. _Hollingshead_[1069] the question came before the Court whether since 1886 any registration or delivery was necessary. Stirling, J., held that although none of the formalities prescribed by the International Copyright Act of 1844[1070] need be observed, yet a foreign work must comply with the provisions of the Copyright Acts as to registration and delivery applicable to works first produced in this country. His _ratio decidendi_ was that a foreign work was only entitled to the protection afforded to natives,[1071] and the Act of 1844[1072] provided that all and singular the enactments of the Copyright Acts in this country should apply to foreign works in such and the same manner as if such works were published in the United Kingdom. Charles, J., in _Hanfstaengl_ v. _Holloway_[1073] differed from this view, and finally the Court of Appeal in _Hanfstaengl_ v. _American Tobacco Company_[1074] held that no registration in this country was necessary. The ground of this decision is that the enactments of 1844 as to registration of foreign works superseded the enactments of 1842, and when the provisions of 1844 were repealed the provisions of 1842 did not revive. This reasoning, which appears to be undoubtedly sound, applies equally to the provisions as to delivery of copies. It does not, however, apply to the question whether such formalities as the name and date of publication on an engraving are necessary. At present the position seems to be this. The reasoning of Stirling, J., in _Fishburn_ v. _Hollingshead_[1075] equally applies to the formalities as to name and date on engravings and sculpture as it does to registration and delivery. The judgment of Stirling, J., was overruled in _Hanfstaengl_ v. _American Tobacco Company_[1076] in the Court of Appeal, but on grounds which do not apply to these formalities. As to them, therefore, the judgment of Stirling, J., stands. It is very doubtful whether this is the correct view of the law, but it is submitted that until _Fishburn_ v. _Hollingshead_[1077] is further overruled the law is that formalities under heading 3 _supra_ are necessary. In _Avanzo_ v. _Mudie_[1078] it was held that a foreign print could not claim copyright under 7 & 8 Vict. c. 12, unless the date and name were engraved thereon as required by 8 Geo. II. c. 13. Mr. Scrutton, whose opinion in these matters carries great weight, thinks that these formalities are not required.[1079] As a matter of expediency they should always be observed where practicable. =Who are entitled to sue in respect of a Foreign Work.=--The author of a foreign work or his assignee is probably entitled to sue in the case of all foreign works which are protected in this country.[1080] The publisher of a foreign work published anonymously or pseudonymously is entitled to sue if his name is indicated on the work.[1081] =Evidence of Title.=--Where the name of the author is indicated on a foreign work or in the case of an anonymous or pseudonymous work the name of the publisher, such author or publisher is, in the absence of proof that he is disentitled, entitled to sue in respect of such foreign work.[1082] An extract from a register, or a certificate or other document authenticated by the official seal or signature of a minister of state of the foreign country of origin, or of a British diplomatic or consular officer, lawfully acting in such foreign country, is admitted as _primâ facie_ evidence of the owner of the copyright.[1083] =Protection afforded to Foreign Works.=--Generally a foreign work is accorded-- 1. The same right of copyright and during the same period as if the work had been first produced in the United Kingdom:[1084] but 2. No greater right or longer term of protection than it enjoys in the country of origin.[1085] Section 10 of the International Copyright Act, 1844,[1086] provides that all copies of foreign books in which there is copyright under the International Acts, if printed or reprinted in any foreign country _except the country of origin_, shall not be imported into the British dominions without the consent of the proprietor. It has been held,[1087] however, that this section does not supply a complete code as to the importation of copies of a foreign book, and that copies printed in the country of origin will also be prohibited in the same way as if the book had been first published in the United Kingdom. Section 3 of the International Copyright Act, 1844, applies to foreign works, _inter alia_, the provisions 5 & 6 Vict., sections 15 and 17, which prohibit the importation of any copies printed outside the British dominions. Section 10 was held not to curtail the general application in section 3 of the provisions of the Copyright Act, 1842, to foreign books. As to certain foreign works which are dealt with below, there is express provision in the International legislation which results in giving such foreign works a narrower right or shorter term than they would have if first published in this country. Where there is no express limitation, the above general rules apply. The law of both the country of origin and of the United Kingdom must be examined, and the right given will be limited according to the law which affords least protection. Where, however, according to this rule there is a right, the Courts here will give the same remedies as they would extend to the author of a work first published in the United Kingdom. Thus in _Baschet_ v. _London Illustrated Standard_,[1088] Kekewich, J., refused to consider whether a French Court would or would not award penalties for infringement. _Works published before December 6, 1887_, are protected, except in so far as such protection may prejudice rights or interests arising from or in connection with works lawfully produced before, and subsisting and valuable at, that date.[1089] This limitation is introduced by the retrospective section of the Act of 1886, which enacts that-- "Where any person has before the date of the publication of an Order in Council lawfully produced any work in the United Kingdom, nothing in this section shall diminish or prejudice any rights or interests arising from, or in connection with, such production which are subsisting and valuable at the said date." The following are some of the classes of literary or artistic works which were not protected before 1886 but to which the retrospective section and its saving clause applies: i. Works not registered in this country under the International Copyright Act, 1844, section 6.[1090] ii. Works which had not acquired the translating right under the International Copyright Act, 1852, sections 2, 4, 8. iii. Dramatic works, as to the liberty to make fair imitations or adaptations to the English stage under the International Copyright Act, 1852, section 6. "Lawfully Produced" means that the work has been produced without contravening any right existing at the date of its production.[1091] "Rights" and "Interests" are to be distinguished, the latter word bearing a wider interpretation than the former. Right does not mean the right to reproduce in common with all mankind, but right in the strict legal sense of the term under the English Copyright Acts, _i. e._ an exclusive right of property. When any capital has been embarked in the production of a work, and the publisher depends on the sale of copies in stock or on the proceeds of a future edition to recoup himself for his outlay, there is clearly an interest although there may be no right. Where a bandmaster had purchased a copy of a French musical composition and instructed his band to perform it, he was held to have such an interest as would entitle him to continue performing it after the French composer had acquired protection under the Act of 1886.[1092] Even where no capital has been embarked, if the publisher has a special interest as distinct from the rest of the public in the reproduction of the work, he has an interest within the meaning of the section.[1093] Thus where a firm had adopted a German picture as a trade mark for their candles, they were held to have such an interest in the reproduction as would constitute a good defence to an action for infringement of copyright acquired under the retrospective operation of the Act of 1886.[1094] It has been suggested that not only the interests of the lawful producer will be safeguarded, but also interests arising in a third person from or in connection with such production, and this seems to be sound.[1095] _Translating Right_ expires if not exercised within ten years. The exclusive right of translation is expressly given to the foreign author by the Act of 1886 and the Additional Act of Paris for the full term of his copyright in the original work, but if an authorised translation in the English language is not published after the expiration of ten years next after the end of the year in which the work was first produced the translating right of the author shall cease.[1096] If a book is published in numbers, the ten years run from the date of publication of the last part.[1097] When a book is composed of a number of volumes, each volume is considered as a separate work.[1098] A translation in order to preserve the translating right must be full and substantial.[1099] A translation might be such as, if made without the consent of the author, would constitute a piracy, and yet not be such a translation as is required by the Act-- "What is required is that the English people should have the opportunity of knowing the foreign work as accurately as it is possible to know a foreign work by the medium of a version in English."[1100] _Articles in Newspapers and Periodicals._[1101]--Articles, not being serial stories or tales, appearing in a newspaper or periodical in a foreign country, may be republished or translated in a newspaper or periodical in this country without the consent of the owner of the copyright, provided-- (_a_) In the case of articles of political discussion, the news of the day, or miscellaneous information, the source from which the same is taken be acknowledged. (_b_) In the case of articles relating to any other subject, the source from which the same is taken be acknowledged, and the author has not signified his intention in a conspicuous part of the newspaper or periodical of preserving the copyright and right of translation. _Photographic Works._--The Additional Act of Paris runs as follows: "It is understood that an authorised photograph of a work of art shall enjoy legal protection in all the countries of the Union, as contemplated by the Berne Convention, and by the present Additional Act, for the same period as the principal right of reproduction of the work itself subsists, and within the limits of private arrangements between those who have legal rights."[1102] It would seem, therefore, that photographs of protected works of art are not protected as original works, and that, whenever produced, their protection stands and falls with the right in the original work. Other photographs, including photographs of unprotected works of art, are protected as original works. _Performing Right in Dramatic or Dramatic Musical Works._--Exclusive performing right in dramatic or dramatico-musical works subsists during the existence of the exclusive right of translation. If the translating right is allowed to fall into the public domain by non-exercise within ten years, the performing right falls with it.[1103] There is not now as formerly any right in the public to make fair imitations or adaptations to the English stage.[1104] _Express Provision as to Particular Kinds of Infringement._--The Berne Convention, article 8, provides that the question of the right of extract is to be decided by the legislation of the different countries of the Union, or by special arrangement between them. There is no special arrangement as to this with the United Kingdom, therefore the law as to extract and quotation applicable to works produced in this country applies. Article 10 of the Berne Convention enacts that indirect appropriations such as adaptations and arrangements are included among illicit reproductions when they do not bear the character of original work. Here also, therefore, the law is similar to that applicable to works produced in this country. CHAPTER XI COMMON LAW As to works which have been published within the meaning of the Copyright Acts, the common law affords no protection in the nature of copyright, that is to say, as regards the exclusive right of reproduction, the author must rely entirely on the statutes. There is no copyright at common law after the expiration of the period prescribed by statute,[1105] neither is there any greater right during that period than the statute gives.[1106] Common law remedies, however, may be applied when the statute gives a right without a sufficient remedy.[1107] But apart altogether from rights in the nature of copyright, the principles of common law and equity do apply to both published and unpublished works to prevent or to remedy the consequences of fraud or breach of contract. As to works which have been composed[1108] but have not been published, the common law affords protection to the author against reproduction or interference of any kind.[1109] The rights and remedies at common law are perpetual, and are neither limited in duration nor as regards the time within which action must be brought, except in so far as the general rules of equity as to acquiescence and delay or the statutes of limitation may be applicable. =Title: Passing off.=--_No Copyright in Title._--There is no copyright in a title consisting, as a title usually does, of only a few words. Thus _Belgravia_,[1110] _Sporting Life_,[1111] "Splendid Misery,"[1112] _The Licensed Victuallers' Mirror_,[1113] and "The Post Office Directory,"[1114] have all been decided not to be the subject of copyright. In two decisions "The Birthday Scripture Text-Book"[1115] and "Trial and Triumph"[1116] (as the title of a novel) were protected on the ground of copyright in title, but since _Dicks_ v. _Yates_[1117] in which these two decisions were cited, and in so far as they were based on a claim of copyright in title, disapproved, no such claim could be entertained, and the exclusive user of a title will only be protected on the general principles of common law and equity which prevent one man passing off his wares as those of another man. As was pointed out by Jessel, M. R., in _Dicks_ v. _Yates_,[1118] it is conceivable that there might be a title in which there was copyright; for instance, if it was extremely long and elaborate, but since _Dicks_ v. _Yates_ there is no case in the books where a title has been protected on the ground of copyright. _Whether Protection is based on a Right of Property in the Title._--The great bulk of authority is to the effect that the right to prevent others passing off their literary works under the same or a similar title does depend on a right of property in the title as applied to a particular class of work, which right can only be acquired by user.[1119] This right is regarded as a chattel interest capable of assignment,[1120] and may be a partnership asset.[1121] In _Walter_ v. _Emmott_,[1122] however, Cotton and Bowen, L. JJ., expressed a strong opinion that the right to prevent a deceitful use of title was not founded on a right of property in the title, but on the ground of deceit alone. It is submitted that the plaintiff in an action of this kind need not prove deceit on the part of the defendant, and that the right is strictly a proprietary right which must have been acquired by user before the Court will intervene. _Knowledge of Existence and Value on part of the Public._--This is necessary before an author or proprietor of a literary or artistic work can acquire a right to the exclusive use of a title in connexion with works of a certain class. It is not sufficient that the title of a proposed book or magazine has been extensively advertised or that it has been registered, even although great expenditure has been incurred in the preparation and advertisement.[1123] Any one, it would seem, can seize the opportunity of another's advertisements and bring out a similar book under the same or a similar title, either before the publication of that other's book or immediately after its publication, and before it became known to the public as an actually existing publication which they have had an opportunity of reading and forming an opinion of on its merits. The sale of a few copies only will not establish a common law right in title.[1124] Not only must the work be well known to the public, but it must also be distinctively known under the title in which a proprietary right is claimed.[1125] No right can be acquired by attaching an original title to an old work in which the publisher has no proprietary right. In _Talbot_ v. _Judges_[1126] the plaintiffs published a work in which they had no copyright of any kind under a title of their own invention, "The Liberal and Radical Year-Book." The defendant published a similar work, intituled "The Liberal Year-Book." It was held that they were entitled to do so, as the plaintiffs could have no right in the title when the material was in no sense their own. _Non-user of title_ for a considerable period will leave it open to others to adopt the same title and to acquire a right therein to the exclusion of the original user,[1127] but no representation must be made, express or implied, that the subsequent publication is a continuation of the first. If the proprietor of a magazine incorporates it with another publication, such as the _John Bull_ with the _Britannia_, and intitules the future publication with a joint name such as the _John Bull and Britannia_, he can prevent any taking of the original titles either _simpliciter_ or colourably altered, as, for instance, _The True Britannia_.[1128] _No Fraud need be Proved._--When the exclusive right to a title has been established, an innocent invasion is equally as actionable as one tainted with fraud or intent to deceive.[1129] It is a question what the public are likely to believe, not what it was intended they should believe. _Must be Calculated to Deceive._--The question is whether the man of ordinary intelligence is likely to be deceived, and purchase the later publication while intending to purchase the original. It is not sufficient to show that some thoughtless or stupid people have made mistakes and taken the one for the other.[1130] The exclusive right to the use of a title only extends so far as to prevent the whole or any part of the title being used in such a way as to deceive the public, to the injury of the proprietor of the title. Thus a part of the title may be taken and so used in conjunction with other words, that there can be no possibility of confusion, or the whole title may be taken and used for an entirely different class of work, or otherwise put before the public in such a way that mistake is practically impossible. Thus in questions of passing off, besides the similarity of title, the result depends on the peculiar circumstances under which the works are produced: the time and place of publication, appearance, such as similarity in print and binding and price, may all be of vital importance. _Cases in which an Injunction was Granted._--In _Hogg_ v. _Kirby_[1131] the defendant was interested in the sale and profits of a magazine called _The Wonderful Magazine_. A dispute arose between him and the proprietor of the magazine, and the defendant thereupon published a magazine under the same title, described as _New Series Improved_. This publication was restrained. In _Constable_ v. _Brewster_,[1132] a Scotch case, an interdict was granted on very similar facts. In _Chappell_ v. _Sheard_[1133] the plaintiffs published a song, the words of which were original, but set to an old American air, "Lillie Dale," in which there was no copyright. This song had become popular, and was sung at concerts by a Madame Thillon. The plaintiffs published their song under the title of "'Minnie,' sung by Madame Anna Thillon, written by George Linley," and the cover bore a lithographed drawing of Madame Thillon. The defendants set other words to the same air and published it as "Minnie Dale," sung by Madame Thillon, and their cover also bore a portrait of Madame Thillon. The defendants' song had, in fact, never been sung by Madame Thillon. An injunction was granted. In _Chappell_ v. _Davidson_[1134] the same song was similarly pirated by one intituled "Minnie, dear Minnie," and an injunction was also granted. In _Prowett_ v. _Mortimer_[1135] _The True Britannia_ was restrained as tending to interfere with the sale of the plaintiff's paper, _The John Bull and Britannia_, which had incorporated the plaintiff's previous publication, _The Britannia_. In _Clement_ v. _Maddick_[1136] the plaintiff owned a sporting periodical paper, intituled _Bell's Life_. The defendants were restrained from publishing a similar paper under the title, _Penny Bell's Life_. In both publications the name Bell was entirely pseudonymous. In _Ingram_ v. _Stiff_[1137] the defendant was the proprietor of a weekly paper, _The London Journal_, and assigned all his interest therein to the plaintiff, covenanting not to publish any rival weekly paper. Two years afterwards the defendant published a daily newspaper, _The Daily London Journal_. The Court restrained him from continuing the publication, but their judgment seems to have gone on the ground of breach of covenant. In _Clowes_ v. _Hogg_[1138] the proprietors of _London Society_ were held entitled to an injunction against _English Society_, but this was also on the ground of a covenant between the parties. In _Corns_ v. _Griffiths_[1139] the plaintiff published a weekly newspaper under the title, "_Iron Trade Circular_ (Ryland's)." The defendant had for some considerable time published a weekly report headed "_The Iron Trade_ (Griffith's Weekly Report)," but changed his title to "_The Iron Trade Circular_ (edited by Samuel Griffiths)," and published it in type and form very similar to the plaintiff's newspaper. The defendant's publication was restrained. In _Metzler_ v. _Wood_[1140] the plaintiffs were the publishers of "Henry's Royal Modern Tutor for the Pianoforte." This work had a very large sale. The defendants took an old work, intituled "Jousie's Royal Standard Pianoforte Tutor," which had entirely fallen into disuse, and employed Henry to revise it, and then published it as "Henry's New and Revised Edition of Jousie's Royal Standard Pianoforte Tutor." In both publications the word "Henry's" was published in large letters, and was more conspicuous than any other part of the title. The Court granted an injunction. James, L. J., in his judgment, said: "The defendants' title-page was calculated to deceive, and I cannot conceive any reasonable theory to explain the defendants taking an obsolete work, getting it revised by Mr. Henry, and putting Henry's name as the prominent and striking distinguishing mark of his work except that he intended to do that which the name was calculated to do, viz., to mislead the public into believing that when they were buying the defendants' work they were buying the plaintiffs'. If it was so calculated to mislead, the case of the plaintiffs is made out." _Cases where an Injunction was Refused._--In _Spottiswoode_ v. _Clarke_[1141] Lord Cottenham, L. C., refused an interlocutory injunction in a case of two Pictorial Almanacks, where the covers were very similar and could hardly have been so accidentally. In a similar case to-day an injunction would probably have gone. In _Jarrold_ v. _Houlston_[1142] an injunction was refused to the author of "Why and Because," in respect of a similar work intituled "The Reason Why." There was no such similarity or colourable imitation in the title as to support the claim. In _Bradbury_ v. _Beeton_[1143] the proprietors of _Punch_ craved an injunction against _Punch and Judy_. There was, however, no evidence that any one had been misled, and although the papers were similar in size and general appearance, the colour of the paper was slightly different, and the design on the cover was entirely different. Malins, V. C., refused an injunction. In _Kelly_ v. _Byles_[1144] the plaintiff had published numerous directories called "post office" directories. Among them was "The Post Office Directory of the West Riding of Yorkshire." An injunction was refused against the defendant who proposed to issue a directory under the title "Post Office Bradford Directory." The publications in no way resembled one another. The plaintiff claimed that he had acquired an exclusive use to the words "post office" in connection with a directory. It was held that he could have no such exclusive right. In _Dicks_ v. _Yates_[1145] a serial story, entitled "Splendid Misery, or East End and West End, by C. H. Hazlewood," was being published in a magazine called _Every Week_. Another weekly, _The World_, commenced a serial story intituled "Splendid Misery, by the Author of Lady Audley's Secret, Vivian, &c." The two weekly papers were of an entirely different character, and it was held that there was nothing in the publication of the serial story in _The World_ which was calculated to deceive. In _Cowen_ v. _Hulton_[1146] the plaintiff was proprietor of _The Newcastle Weekly Chronicle_ and _The Newcastle Daily Chronicle_. He claimed an exclusive right to the use of the word "Chronicle" in connection with newspapers in Newcastle, and craved an injunction against the sale in Newcastle of _The Sporting Chronicle_. The Court of Appeal, reversing the decision of North, J., refused an injunction. In _Walter_ v. _Emmott_[1147] _The Mail_ was published three days a week at 11 A. M., price twopence. The Court refused an injunction against _The Morning Mail_, price one halfpenny. Both papers were published in London. In _Borthwick_ v. _The Evening Post_[1148] the proprietors of _The Morning Post_ claimed an injunction against _The Evening Post_. The Court was of opinion that there was no probability of injury to _The Morning Post_ since the papers were not competing papers. Bowen, L. J., in his judgment, said: "He must be an extremely unintelligent person if he thinks that the _Evening Post_, which disclaims all connection with the _Morning Post_, and writes upon different topics and in a different style, is connected with the _Morning Post_. The idea would explode itself before he got half-way through the first page." The injunction was refused. The commonest form of passing off is by means of a similar title and binding, but any act which induces the public to believe that A's book is the book of B is equally actionable, and will be sustained. Thus for A to announce his book as a continuation of B's book,[1149] or in any other way to so advertise it as to induce the public to believe that it is B's work[1150] is actionable. =Malicious Criticism.=--It would be actionable to publish of an author's work that which was obviously untrue; for instance, that it was an immoral or a libellous work, when no suggestion of immorality or libel could be found in it. Apart from absolute falsehood of this kind there is no limit to the range of criticism;[1151] a man is entitled to form what opinion he pleases of another's work, and to publish these opinions. So long as he confines himself to the work criticised and the author thereof as author, he has very full liberty of saying what he thinks. It may be actionable to say that a man is the author of a work which is not his. The offence if anything would be defamation of the author.[1152] =Slander of Title.=--No doubt an action would lie against any one publishing statements in disparagement of the owner's right to a literary or artistic work.[1153] Special damage is of the essence of such an action. =Author who has parted with Copyright is entitled to protect his Reputation.=--Although a purchaser of copyright may do what he pleases with what he has purchased, he may not mutilate an artistic or literary work and present it to the public in its mutilated form as the work of the original author. The copyright in a law book was purchased by a bookseller. The author refused to edit a third edition, and the bookseller had the necessary alterations made for himself. The third edition was then published without any notice that it was prepared by any one other than the author. It contained numerous errors. In an action by the author against the bookseller, Lord Tenterden, C. J., in summing up, put it to the jury that if they were of opinion that the third edition would be understood by those who bought it to have been prepared by the plaintiff, the plaintiff was entitled to a verdict; but if they were of opinion that persons using reasonable care would think that this third edition was not prepared by the plaintiff, their verdict should be for the defendant. The jury returned a verdict of five pounds for the plaintiff.[1154] The nature of the remedy is really an action for the defamation of the plaintiff's reputation as an author. The Court is slow to grant an interlocutory injunction in such an action. No doubt it would be done in an extreme case, for instance, if the owner of performing rights in a play inserted indecent or scandalous matter without the consent of the author, but the Court prefers to have the legal question as to whether the altered version is injurious to the plaintiff's reputation tried first. In _Cox_ v. _Cox_[1155] the plaintiff had written a legal article for the purpose of insertion in the defendant's book. The defendant revised and shortened the article to a considerable extent, and the plaintiff applied for an injunction in Chancery to restrain the defendant from publishing the article in its mutilated form. Page Wood, V. C., refused an injunction, and, in his judgment, said: "In respect to what was said about the plaintiff's reputation suffering from having the legal matter supplied by him published in a mutilated and erroneous form, according to Sir J. Clark's case,[1156] the loss of reputation, unless connected with property, was not a ground for coming to this Court, though it might be an ingredient for the Court to consider when there was property." One might almost infer from this judgment that if the plaintiff had parted with his property no right of action lay for injury to his reputation. It must be observed, however, that this was a claim for an injunction in equity, and the judgment of Lord Tenterden in _Archbold_ v. _Sweet_[1157] was not referred to. That and the subsequent cases make it clear that there is a right of action on the ground of injury to reputation alone, and that in urgent cases the Court will interfere by interlocutory injunction. In _Gilbert_ v. _Boosey_[1158] the owner of a performing right in an opera inserted without the permission of the author two songs, and one of the author's songs was left out. The opera was advertised and performed _simpliciter_ as the plaintiff's opera without any mention of alterations. On an application for an interlocutory injunction, Denman, J., refused to interfere at such an early stage, but he intimated that if the songs had been indecent or such as would obviously damage the plaintiff's reputation, he might have granted an injunction. In _Lee_ v. _Gibbings_[1159] the defendant had acquired the copyright in the plaintiff's "Autobiography of Edward, Lord Herbert of Cherbury." He published a condensed edition, on the title-page of which the plaintiff was stated _simpliciter_ to be the author. The plaintiff alleged that the work was unscholarly and injurious to his reputation, and craved an interim injunction. Kekewich, J., refused the motion. The plaintiff's remedy, he said, was founded on libel by reason of the injury to his reputation. Of late years there had been no such thing as an injunction to restrain a libel (except in the case of a trade libel) on an interlocutory application or before the point had been submitted to a jury. He saw no reason for making an exception in the case before him, and he would express no opinion as to whether there was a libel or not. The Court would restrain one who published a book falsely representing that it was the work of another.[1160] =Protection from Breach of Faith or Contract.=--The relationship of parties may give rise to rights and obligations in reference to literary or artistic matter which could not exist as between strangers. Such rights and obligations are supported on the various grounds of express contract, implied contract, and breach of faith. As to express contract there is little difficulty, the ordinary rules of contract will apply. As to implied contract or breach of faith, these are really the same, only common law based its remedy on the former and equity on the latter. It usually arises in the case of a clerk or other employee between whom and the employer a confidential relationship exists. As regards employees, the law stated briefly is this, that during his employment he must do nothing which is contrary to the interests of his employer; he may not in any way assist in the production of literary or artistic work which may compete with the work of his employer. After the termination of his employment, apart from express contract, he is entitled to compete with his late employer, and for that purpose may make use of the general knowledge and information which he acquired in his employment: but he may not for such purpose use any materials such as documents, notes, printing blocks, &c., which he acquired in his capacity of employee and _a fortiori_ if he acquired them surreptitiously. In _Jovatt_ v. _Winyard_[1161] a veterinary surgeon employed a journeyman for the purpose of selling his medicine. While in such service the journeyman surreptitiously got access to his books of recipes and copied them. It was held that there was a breach of trust, and the journeyman was restrained from selling the medicines or printing or selling printed directions for their use. In _Prince Albert_ v. _Strange_[1162] a workman, who was entrusted by the Prince Consort with certain plates for the purpose of reproducing privately drawings which had from time to time been made by Queen Victoria and the Prince Consort, in breach of the trust reposed in him sold impressions to the defendant, who published a descriptive catalogue of the drawings. Knight Bruce, V. C., granted an injunction against the publication of the catalogue. In _Reuter's Telegram Co._ v. _Byron_[1163] the defendants had for some time acted as agents in Australia of the plaintiff company, sending on and receiving telegraphic messages on their behalf. In the course of this agency they became acquainted with the cypher used by many of the company's customers. On the termination of their employment the defendants started a rival telegram business and sent circulars to the plaintiffs' customers, mentioning that they had their cyphers. On a motion to restrain the defendants from making use of the list of cyphers acquired in the plaintiffs' employment, Jessel, M. R., refused an interim injunction. He said: "The Court will always restrain a man from publishing or divulging that which has been communicated to him in confidence. But this is a totally different case. The plaintiffs do not here seek to restrain the defendants from publishing anything but from making use of knowledge acquired while the relation of principal and agent subsisted after that relation terminated." In _Lamb_ v. _Evans_[1164] the defendants had been employed by the plaintiff as canvasser for his trade directory. On the termination of their employment they published a rival directory and made use of blocks and notes which they had acquired in the plaintiff's employment. The Court held that this was an improper use for the defendants to make of materials so acquired. Bowen, L. J., in his judgment, said: "It is not a question of copyright--that must be kept out of sight altogether--nor is it, on the other hand, a simple question of the absolute property at law in the documents themselves or in the blocks themselves. It is a question of whether the plaintiff, whatever the property in the documents may be or whatever the property in the materials may be, has not sufficient special property in them to entitle him to restrain the use of them against him when they had been obtained for his use by his agents in the course of their employment. That depends entirely, I think, on the terms upon which the employment was constituted, through which the fiduciary relation of principal and agent came into existence." In commenting on _Reuter's Telegram Co._ v. _Byron_, the same judge said: "I think if Reuter's case is to be judged by the result, it no doubt is right--and Sir George Jessel was generally right--but I do not think that the propositions reported in the _Law Journal_ as laid down by him can be considered to be sound. It seems to me that as a matter at law or as a matter of equity, the conduct of the defendants in that case cannot be justified to the extent to which the learned judge is made by the report to justify it. If Reuter's case is cited as an authority for the propositions which the Master of the Rolls is there stated to have laid down, I am not prepared to follow it." In _Merryweather_ v. _Moore_[1165] a clerk while in the employment of a firm of engine-makers had made a table of dimensions of various types of engines. After he had left their employment he was restrained from publishing or communicating the table or its contents to any one. In _Louie_ v. _Smellie_[1166] the plaintiff carried on a business as a process server, the defendant while in his employment secretly made extracts from the plaintiff's register and index of agents and copies of the plaintiff's forms. He was restrained from making use of such extracts in competition with the plaintiff after he had left his employment and set up as a process server on his own account. Lindley, L. J., in his judgment, said: "As to the law it has been clearly laid down in _Lamb_ v. _Evans_. It is not new law, it is as old as the hills. The good faith that existed between employer and employed rendered it improper for the employed to make use of any information acquired by him during the period of the confidential relationship." The injunction was granted in these terms: "An injunction to restrain the defendant, his servants, and agents from making use of any copies or extracts from the plaintiff's register of agents, or index of agents, or any memoranda made or obtained by the defendant when in the plaintiff's employ relating to any person named in these books or either of them." In _Robb_ v. _Green_,[1167] the defendant having been employed as manager of the plaintiff's business, secretly copied a list of the names and addresses of his customers. On leaving the plaintiff's employment he set up a similar business, but was restrained from making use of the list of his late master's customers. In _Gilbert_ v. _Star Newspaper_[1168] the members of a theatrical company taking part in the rehearsal of a new opera were held to be under an obligation not to disclose any information concerning it until it should be publicly performed, and the Court restrained a critique published in a daily newspaper on the ground that the material for it must have been unlawfully procured. In these cases it is not only the party who is in breach of contract or confidential relationship that will be restrained. The Court will restrain any one who, knowing how the material has been acquired, makes use of it.[1169] In _Tipping_ v. _Clarke_,[1170] Wigram, V. C., said that if the defendant availed himself surreptitiously of the information which he could not have had except from a person guilty of a breach of contract in communicating it, he could not be permitted to avail himself of such breach of contract. In _Abernethy_ v. _Hutchinson_,[1171] Lord Eldon said: "How the gentleman who had published the letters came by them he did not know; but whether an action would be maintained against them or not on the footing of implied contract, an injunction undoubtedly might be granted, because if there had been a breach of contract on the part of the pupil who heard these lectures, and if the pupil could not publish for profit, to do so would certainly be what this Court would call a fraud upon a third party." Thus in _Prince Albert_ v. _Strange_[1172] the defendant obtained the information from the person in whom the plaintiff's confidence was placed, and was on that account restrained. In the _Exchange Telegraph Co._ v. _Central News_[1173] the Court restrained a third party from publishing information which he had obtained by inducing a subscriber to the Telegraph Company to break his contract. If there has been a breach of contract or trust the Court will assume a guilty knowledge in the case of a third person, who, being in possession of the material, cannot give any satisfactory explanation.[1174] If a third party acquire innocently and for value materials or information originally procured in breach of trust or contract, it seems questionable, apart from any absolute right in the plaintiff, such as a right to manuscript, whether he can be restrained from making use of them in any publication. If the original act amounts to fraud or crime, certainly the Court will not protect even an innocent purchaser. "Let the hand receiving it be ever so chaste, if it comes through such a corrupt and polluted channel, the obligation of restitution must follow."[1175] But if the original act amounted to no more than breach of confidence or contract, it may be different, and a purchaser for value and without notice may be excused.[1176] The point must be considered doubtful.[1177] The ground of action on breach of faith or contract may sometimes exist concurrently with a ground of action on copyright, and may be useful if there are any technical difficulties in the plaintiff's way as to copyright.[1178] =Unpublished Works.=--The author and his assignees have the right of first publication; this right at common law is unaffected by the Copyright Acts, and is a right in perpetuity. The right in literary matter in manuscript is clearly one of property, and is independent of any confidential or contractual relation between the author and those who interfere with his property without authority. "It cannot," said Lord Halsbury in _Caird_ v. _Sime_,[1179] "be denied that in the present state of the law an author has a proprietary right in his unpublished literary productions." An author may choose his own time to publish or may choose never to publish at all, and he may proceed against any one who attempts to publish or otherwise deals without his authority with his unpublished work. This was definitely decided in _Donaldson_ v. _Beckett_[1180] when the question among others was put to the judges: "Whether at common law an author of any book or literary composition had the sole right of first printing or publishing the same for sale; and might bring an action against any person who printed, published, and sold the same without his consent?" Ten out of eleven judges consulted answered that there was such a right, and eight of them that an action lay in cases of infringement. Two of the judges, however, were of opinion that an action lay against an infringer only when the manuscript had been obtained by fraud or violence. Only one judge held that there was no right of first publication. In _Prince Albert_ v. _Strange_[1181] Lord Cottenham, L. C., considered the law as well settled and beyond dispute. He says: "The property of an author or composer of any work, whether of literature, art, or science, in such work unpublished and kept for his private use or pleasure, cannot be disputed after the many decisions in which the proposition has been affirmed or assumed." The right of an author to his unpublished work is of a much wider and more exclusive nature than his right to published matter. It probably extends to prohibit any kind of interference whatsoever.[1182] The public have not the right of "fair use" comment and criticism which they have in a published work. In _Prince Albert_ v. _Strange_ Knight Bruce, V. C.,[1183] says: "A work lawfully published in the popular sense of the term stands in this respect, I conceive, differently from a work which has never been in that situation. The former may be liable to be translated, abridged, analysed, exhibited in morsels, complimented and otherwise treated in a manner that the latter is not." The reason that private documents of a man should be protected from any interference whatsoever is sufficiently obvious. "A man," says Knight Bruce, V. C., in the same case,[1184] "may employ himself in private in a manner very harmless, but which disclosed to society may destroy the comfort of his life or even his success in it." In _Miller_ v. _Taylor_[1185] Yates, J., expresses the principle of the common law protection: "Ideas are free. But while the author confines them to his study they are like birds in a cage which none but he can have a right to let fly; for till he thinks proper to emancipate them they are under his own dominion. It is certain every man has a right to keep his own sentiments if he pleases: he has certainly a right to judge whether he will make them public or commit them only to the sight of his friends. In that state the manuscript is in every sense his peculiar property, and no man can take it from him or make any use of it which he has not authorised without being guilty of a violation of his property." The common law right in manuscript ceases upon "communication to the public" with the consent of the author,[1186] but it may still continue notwithstanding some kind of communication to others. The communication in order to divest the owner of common law right must be an abandonment of his ideas and words to the use of the public at large. Representation on the stage, delivery as a lecture, a gift or loan of the manuscript to a friend do not _ipso facto_ determine the author's right of property.[1187] The questions in cases of alleged unlawful publication of manuscript are usually: What is to be presumed as the reasonable understanding between the author and the persons to whom literary matter in the manuscript is communicated? Are they intended to have the right of making any use they please of it, or do the circumstances raise a presumption that they may only use it for a limited purpose? In _Macklin_ v. _Richardson_[1188] the Court held that although a play had been performed on the stage, that was only a limited publication of it, and therefore the exclusive right to publish remained in the author.[1189] In _Nicols_ v. _Pitman_[1190] a lecture delivered at a Working Men's College from a manuscript previously prepared, was reproduced by the defendant without the plaintiff's consent. Kay, J., granted an injunction. In _Caird_ v. _Sime_[1191] the professor of moral philosophy in Glasgow University delivered a course of lectures in pursuance of his duty as professor. These were published by a bookseller from notes taken by a student. It was strenuously argued that the professorship being a _munus publicum_ and the classes being open to all comers, the delivery of the lectures was really a publication without reserve to the whole world. The House of Lords rejected this argument, and held that the right to publish was reserved, the persons who were present at the lecture not being the general public, but a limited class of the public selected and admitted for the sole and special purpose of receiving individual instruction. Lord Halsbury, L. C., in giving judgment, suggested possible cases where it would be implied from the circumstances that there was publication to the world at large: "It is intelligible that when a person speaks a speech to which all the world is invited, either expressly or impliedly, to listen, or preaches a sermon[1192] in a church, the doors of which are thrown open to all mankind, the mode and manner of publication negative, as it appears to me, any limitation."[1193] The same rules apply to communication by delivery of the manuscript or a copy. If I give my manuscript to another to read or for any other limited purpose, he may not exceed the limits of use expressly or impliedly agreed. Publication by printing and circulation among a limited class will not destroy the common law right.[1194] The common law right in a manuscript may be abandoned by neglect or acquiescence in an adverse use. Thus it was said that Southey had no right to complain when having left his poem "Wat Tyler" in the hands of a publisher for twenty-three years the publisher published it for his own profit.[1195] A man's right to the exclusive use of his unpublished work does not depend on its value, and it is immaterial whether he did or did not intend to make profit by its publication.[1196] It is also immaterial whether the publication would prove creditable or discreditable, advantageous or disadvantageous.[1197] The question has been raised whether the Courts would prevent an unauthorised person from publishing manuscript of an immoral nature which the author may have repented of and refused to place before the public.[1198] Ignorance of the author's right is no defence to an action for interfering with unpublished literary matter. A _bonâ fide_ purchaser for value gets no better title than the original pirate.[1199] =Speeches and Sermons.=--Literary matter delivered orally from an extempore composition without having been previously reduced to writing, is protected at common law from unauthorised use. The extent of the protection as in the case of delivery from manuscript is defined by the terms of the relationship existing between the speaker and his audience. He may have freely abandoned all exclusive interest in the matter of his address, or he may give them only the right to listen, or he may give them the right of taking notes and using them for their own instruction. It seems to be doubtful, however, whether the right in unwritten speeches is one based on property, or whether it must depend entirely on implied contract between the speaker and his audience. In _Abernethy_ v. _Hutchinson_[1200] Dr. Abernethy delivered surgical lectures to students at St. Bartholomew's Hospital. These lectures had not been previously reduced to writing. Lord Eldon, L. C., granted an injunction against their unauthorised reproduction in the _Lancet_. There was no evidence as to how the defendants got possession of the lectures, but Lord Eldon thought that was immaterial: "They must have been taken from a pupil or otherwise in such a way as the Court would not permit, and the injunction ought to go on the ground of property, and although there was not sufficient to establish an implied contract as between the plaintiffs and the defendants, yet it must be decided that as the lectures must have been procured in an undue manner from those who were under a contract not to publish for profit, there was sufficient to authorise the Court to say the defendants shall not publish." In _Nicols_ v. _Pitman_[1201] a case of previously written lectures, Kay, J., reviews the judgment of Lord Eldon in the last cited case: "Now it is quite true that the learned judge seems at one moment to refer to the ground of property and at another to that of implied contract. But I take his meaning to be this, that when a lecture of this kind is delivered to an audience, especially when the audience is a limited one admitted by tickets, the understanding between the lecturer and the audience is that, whether the lecture has been committed to writing beforehand or not, the audience are quite at liberty to take the fullest notes they like for their own personal purposes, but they are not at liberty having taken those notes to use them afterwards for the purpose of publishing the lecture for profit." The question of whether the right in an oral speech is property or not might well be of the highest importance in a question between the speaker and a publisher who acquired the matter in entire ignorance of his right. The facts might be such that the Court would not, as they did in _Abernethy_ v. _Hutchinson_,[1202] presume that the material "must have been procured in an undue manner." If there was no such presumption from the facts, it would appear that, apart from a right of property, the speaker must be without remedy unless he has given notice as a lecturer within 5 & 6 Will. IV. c. 65.[1203] =Letters.=--Private letters are protected from publication as much as any other manuscript. In an early case[1204] it was suggested that there could be no property in business letters or others with no literary merit; but as the idea of literary merit in connection with copyright is now entirely exploded, the _obiter dicta_ in this case may be disregarded. In all letters then there is a literary property in the writer which entitles him or his executors to prohibit any publication without his consent, express or implied.[1205] It is immaterial whether the publication is for the purpose of profit or not.[1206] If a letter is written by one as agent for another the property is in the principal, and the agent cannot restrain him from publishing.[1207] The receiver of a letter has a property in the paper on which it is written[1208] and is entitled to retain possession even against the writer. The receiver may make no use of a letter except such as is implied in the sending or with the consent of the writer.[1209] The receiver may even be restrained from parting with possession or showing the letters to any one.[1210] The receiver is probably entitled to prevent the publication of the letters from copies not in his possession or from the originals which have passed from his possession.[1211] Although the sender has a right of property in the literary matter in the letters, the receiver may without his consent destroy the letters and so destroy the writer's chance of obtaining benefit from them. The literary property of the writer and the property in the paper of the receiver descend to their respective executors.[1212] The question has been suggested but never answered: What would be the rights of trustees in bankruptcy to publish for the benefit of creditors private letters?[1213] Letters may be published against the will of the writer when published _bonâ fide_ for the purpose of vindication of character.[1214] CHAPTER XII PUBLISHING AND PRINTING AGREEMENTS _Publishers' Agreements._--These agreements are governed by the law of contract, and only incidentally involve questions of copyright. The contract between an author and his publisher is a personal one and cannot be assigned; each party is presumed to have relied on the personal skill or reputation of the other.[1215] Thus it was held that a half profit agreement could not be assigned by a publisher's firm to a firm which had succeeded to their business but which contained none of the partners of the original firm.[1216] The same principle has been applied in the case of a limited company carrying on a publishing business.[1217] A publishing agreement ought to provide for an assignment of the publisher's rights and obligations to the person or persons who may succeed to the business. Unless otherwise agreed, the death or bankruptcy of a publisher will terminate a publishing agreement.[1218] Similarly if an author had not performed his part of an agreement, viz. to write and revise the manuscript, his death[1219] or bankruptcy[1220] would terminate his obligations in that respect. The publisher could not insist on the author's representatives completing the work, nor could they if they completed the work insist on the publisher publishing.[1221] An agreement to write a book or an article cannot be enforced by specific performance.[1222] The only remedy for breach is an action for damages,[1223] or, if the author has agreed not to write on a particular subject for any one else, that may be enforced by an injunction.[1224] An agreement to assign a copyright may be enforced by specific performance,[1225] and probably also an agreement to furnish an unpublished manuscript already completed. An undertaking to write a book on a particular subject is not fulfilled by furnishing a translation of a foreign work on that subject.[1226] If A agrees with B to write an article for a certain publication or series of publications, and if before the article can be published the publication or series has been discontinued, A is not bound to deliver his article for publication in another form; but he is entitled to a _quantum meruit_ for the work he has done.[1227] If an author has entered into a royalty agreement with a publisher he is not, apart from express agreement, under any obligation not to publish the work through another publisher before the first edition has been sold out.[1228] An author should therefore be bound not to publish elsewhere so long as the publisher is willing and ready to publish, and if this is done the publisher may restrain the author or another publisher who publishes with notice of his agreement.[1229] In a half profit agreement where nothing was said as to future editions, it was thought that the contract might probably be determined by either party on the expiry of each edition and before any expense had been incurred in respect of a future edition; but until that was done the publisher had the exclusive right to publish and recoup himself for his outlay and earn profits.[1230] It is not illegal as being in restraint of trade for an author to contract to write only for a single publisher or theatrical manager,[1231] nor for a publisher to contract not to publish a particular class of work.[1232] If an editor engages to give his whole time to a publication, he will be restrained from engaging in or advertising any rival work.[1233] Unless there is an express stipulation an author will not be prevented under a publishing agreement from writing and publishing other books on the same subject provided they do not reproduce in whole or in part the former book.[1234] If there is an express stipulation against publishing similar works, both the author and his publisher would be restrained from doing so.[1235] Apart from express agreement a publisher is probably free to publish any other rival work he pleases, even although it may seriously affect the sale of the former book.[1236] In the absence of express stipulation, the publisher under a half profit agreement has been held entitled to fix the selling price, choose the embellishments, and generally control the publication.[1237] In a publishing agreement it should always be expressly stated who is to hold the copyright. It has been held that where no mention of the copyright was made a half profit agreement did not import a transfer of the copyright to the publisher.[1238] In editorial agreements as to newspapers or magazines similar careful provision should be made as to who is to own the copyright and the goodwill in the name, otherwise difficult questions may arise.[1239] Where the author of a novel sold the copyright therein to the owners of a periodical, reserving to himself the right to publish in "volume form," it was held that under this agreement he was entitled to publish the work in weekly parts, which when completed could be bound into a volume.[1240] An indemnity given by an author to a publisher against proceedings for libel is void if the publisher knew or ought to have known that the matter was libellous.[1241] The publisher, however, would be entitled to rely on such an indemnity if he acted innocently. The same principle would apply to proceedings for infringement of copyright. A publishing agreement may be made orally unless, which will seldom happen, it cannot be performed within a year from the making thereof, in which case there must be a written memorandum of the terms to satisfy the Statute of Frauds.[1242] The agreement, if in writing, must be stamped with the usual sixpenny agreement stamp. If it contains a conveyance of a copyright it will probably have to be stamped with _ad valorem_ duty under section 53 of the Stamp Act.[1243] If the work is unpublished at the time of the agreement the whole interest in the manuscript can be conveyed by delivery; in the case of a published work the copyright could be conveyed by entry on the register, so that in neither case need there be a conveyance in the agreement, and the stamp duty can thus be avoided. If a copyright is conveyed by entry on the register the Copyright Act expressly exempts the conveyance from duty.[1244] _Printers' Agreements._--A printer has a lien on the books printed by him for his printing charges.[1245] He has no lien on stereotype plates for the amount of the bill for printing from them.[1246] If the printer does not print his name and address on a book as required by Act of Parliament[1247] he will not be entitled to recover his printing charges.[1248] An order to print a certain number of copies of a book must as a rule be treated as an entire order, and no payment will fall due until the whole are complete and ready for delivery, so that if when half finished they are destroyed by fire he will not be entitled to recover for the work done.[1249] A printer does not insure the manuscript when in his possession,[1250] but is only liable for loss occasioned by his negligence. A printer cannot maintain an action in respect of his charges for printing an immoral or seditious work, knowing it to be such.[1251] If while a book is being printed by him he discovers that it contains libellous, seditious, or immoral matter, he would be entitled to discontinue the printing and sue for the work already done.[1252] * * * * * ADDENDUM =Musical Copyright, Summary Remedies.=--A Bill has passed both Houses of Parliament and awaits the Royal Assent whereby, after October 1902, owners of copyright in music may proceed in a Court of summary jurisdiction against persons dealing in pirated music. Piratical copies which are being hawked or offered for sale may be seized by a constable without warrant and brought before the Court, which, on proof, may order the copies to be forfeited or destroyed, and inflict a penalty not exceeding twenty pounds on any one offender in respect of the same transaction. This Act will not apply outside the United Kingdom. PART II THE LAW OF COPYRIGHT IN THE UNITED STATES CHAPTER I INTRODUCTORY The law of copyright in the United States, especially in relation to literary work, is daily becoming of more interest to the owners of copyright in this country. Since the _Act of Congress_, 1891, commonly known as the _Chace Act_, those who are neither citizens of nor resident in the United States can acquire a copyright therein if copies of their books are printed from type set up in the United States and if their books are duly recorded there before publication either within or outside the United States. There is thus created for English authors a property which may be of considerable value if before publishing here they incur the trouble and expense of printing and recording their books in America. Apart from this commercial interest which English authors and publishers have in a knowledge of American copyright law, there is the further interest to English lawyers in the large body of analogous case law to which the American statutes have given rise. These statutes were originally founded on our own statute of Anne, and, although the difference between the Acts now in force in the two countries is very wide in many respects, a great deal remains the same in substance, and the decisions of the American Courts afford us valuable precedents. These cases, however, must not be cited in our Courts at random, as has too frequently been done. In citing from the American reports, it is essential to compare the statutory provisions in America with the statutory provisions in this country, and ascertain whether the decisions are really applicable or not. It is for this reason that I have thought it expedient to keep the American law and the English law entirely separate. The practice of citing American cases promiscuously throughout a treatise on English Copyright Law I have found to be confusing and misleading. CHAPTER II WHAT WORKS ARE ENTITLED TO COPYRIGHT In order to acquire copyright in the United States the work must fulfil the following conditions: 1. It must be an original literary or artistic work. 2. The (owner/author) must be a citizen of the United States (or resident therein), or of a foreign country proclaimed to that intent by the President.[1253] 3. It must have complied with the formalities prescribed by the statutes of the United States.[1254] 4. It must be innocent.[1255] SECTION I.--AN ORIGINAL LITERARY OR ARTISTIC WORK. In the United States literary and artistic works are treated similarly under the same series of statutes. The works protected are enumerated in section 4952 of the Revised Statutes as amended by the Act of March 3, 1891 (_The Chace Act_). The protection extends to any book, map, chart, dramatic or musical composition, engraving, cut, print, or photograph or negative thereof, and to any painting, drawing, chromo, statue, statuary, and to models or designs intended to be perfected as works of the fine arts. [Sidenote: The scope of the Constitution.] In considering whether a work is within the protection of the Copyright Acts, not only must the enacting words of the statutes be considered, but also, and perhaps principally, the scope of the provision in the Constitution, which grants power to Congress to secure the protection of authors and artists.[1256] The language of the Act must be read in connection with the Constitutional provision and be so construed as to promote the object and conform to the purpose expressed therein. The power given to Congress by the Constitution is a power "to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." In consideration of this restricted power the earlier decisions[1257] construed the Acts of Congress as including only those works which showed a certain degree of intellectual labour in the arts or sciences. In _Clayton_ v. _Stone_[1258] protection was refused to a daily price current or review of the markets issued in a newspaper. Thompson, J., in giving judgment, said: "The Act was passed in execution of the power given by Congress, and the object therefore was the promotion of science; and it would certainly be a pretty extraordinary view of the sciences to consider a daily or weekly publication of the state of the market as falling within any class of them. They are of a more fixed, permanent, and durable character. The term science cannot with any propriety be applied to a work of so fluctuating and fugitive a form as that of a newspaper or price current, the subject-matter of which is daily changing, and is of mere temporary use.... The title of the Act of Congress is for the encouragement of learning, and was not intended for the encouragement of mere industry unconnected with learning and the sciences." [Sidenote: Illustrated Catalogues.] This high standard of intellectual requirement was not, however, strictly maintained. In _Brightley_ v. _Littleton_[1259] a blank form of application for a licence to sell liquor at retail, drawn in pursuance of the statutes in that behalf, was protected, and it was said that, although the matter claiming copyright must be original and possess some possible utility, "the originality may be of the lowest order and the utility barely perceptible." In _Ladd_ v. _Oxnard_[1260] the English cases of _Lamb_ v. _Evans_[1261] and _Leslie_ v. _Young_[1262] were cited with approval, and the Court agreed that "the quality and grade of original work required by the Courts under the Copyright Statutes are very moderate." Until the case of _Mott_ v. _Clow_,[1263] the tendency seems to have been to follow the English judges to their extreme view, as expressed by Lord Halsbury in _Walter_ v. _Lane_,[1264] _i. e._ "that the copyright law requires neither literary merit nor intellectual labour nor originality either in thought or in language." The Court, however, in _Mott_ v. _Clow_[1265] refused to follow the English decisions. After reviewing the American, and particularly the earlier American decisions, they say: "The result of these decisions would seem to place this construction upon the Constitutional provisions under consideration that only such writings and discoveries are included which are the result of intellectual labour; that the term writings may be liberally construed to include designs for engravings and prints that are original and are founded in the creative powers of the mind, the fruits of intellectual labour; that prints upon a single sheet might be considered a book if it otherwise met the spirit of the constitutional provision; and that to be entitled to a copyright, the article must have, by and of itself, some value as a composition, at least to the extent of serving some purpose other than a mere advertisement or designation of the subject to which it is attached." The "book" before the Court was a catalogue in the form of a bound volume, containing illustrations of household wares offered for sale, and giving the dimensions and price of each. The Court referred to _Maple_ v. _Junior Army and Navy Stores_[1266] where a similar catalogue in England was protected. "It is to be observed in this case that it was ruled largely upon the language of the Act of Parliament (5 & 6 Vict. c. 45).... It is to be here remarked that the Parliament of Great Britain, unlike the Congress of the United States, is unlimited in power, and with the construction and effect placed upon the preamble of the Act by the Court, there would seem to be little escape from the conclusion at which the Court arrived. In this country under the Constitution the power lodged with the Congress is not unlimited, but is restricted to the promotion of the progress of science and useful arts. The ruling of the English Court is therefore not pertinent except as it illustrates the subject." The Court cited with approval _Baker_ v. _Selden_,[1267] which had expressly approved _Cobbett_ v. _Woodward_,[1268] an English case overruled in _Maple_ v. _Junior Army and Navy Stores_;[1269] they further cited and approved the judgment of Thompson, J., in _Clayton_ v. _Stone_,[1270] quoted above. The judgment concludes with the following paragraph: "It is possibly not beyond comprehension that pictures of slop-sinks, wash-bowls, and bath-tubs, with or without letterpress statement of dimensions and prices, though intended mainly for advertisement, may in localities where such conveniences are not in common use, be the means of instruction and of advancement in knowledge of the arts, and, when they are the products of original intellectual thought, may possibly come within the scope of the Constitutional provision. It is enough for the present purpose to say that, in our judgment, the Congress has not seen fit to enact a law which can reasonably be given so broad a construction." [Sidenote: Directories. Dictionaries.] [Sidenote: Mercantile Statistics.] [Sidenote: Forms of Application.] In considering the authority of some of the cases cited below, the judgment in _Mott_ v. _Clow_[1271] must not be lost sight of. It is probable that some of these cases are not in accordance with it, or with the older cases, such as _Clayton_ v. _Stone_[1272] and _Baker_ v. _Selden_[1273] therein expressly approved. Subject to this note of warning, the following may be taken as examples of what have and what have not been accepted as works of art or literature within the scope of the Constitution and the Acts of Congress. Directories[1274] and dictionaries[1275] have both been protected. In the case of the latter, there is copyright in the definitions of the words, however short. A list of the credit ratings of marble, granite, and stone dealers of the United States and Canada was protected in _Ladd_ v. _Oxnard_.[1276] In _Clayton_ v. _Stone_,[1277] which has been approved as sound law,[1278] a daily state of the market was refused protection. A racing guide containing a list of race-horses and statistics as to their age and performances was protected in one case,[1279] and in the other case a list of trotting horses and their paces.[1280] In _Brightley_ v. _Littleton_[1281] a blank form of application for liquor licence was held to be copyright. In _Carlisle_ v. _Colusa County_[1282] copyright was denied to a blank form of property statement for assessment purposes. This latter decision appears, however, to have been partly on the ground that as the assessors were obliged to issue a form, it would embarrass their duties if forms drawn up by private persons were entitled to copyright. A circular in pamphlet form used as an advertisement, and explaining a certain method of distribution of coupons to cash purchasers from certain merchants named in the pamphlet, has been held to be the subject of copyright.[1283] The circuit judge, however, in his judgment, says: "It requires some stretch of imagination to say that this pamphlet comes within the purpose of Congress, the encouragement of learning, and the increase of useful knowledge, but the official charged with the duty has granted a copyright to this pamphlet, and his decision is accepted."[1284] [Sidenote: Dramatic Works.] Dramatic works[1285] have been protected, although not of a very high literary standard. In _Henderson_ v. _Tompkins_[1286] protection was given to a topical song which was designed merely to amuse. It was sufficient if it accomplished that purpose. [Sidenote: Law Reports.] [Sidenote: Statutes.] Law Reports are protected so far as they consist of original intellectual matter;[1287] the protection may thus extend to the title-page, table of cases, the head notes, the statements of facts, the argument of counsel, the index, the order and arrangement of cases, the numbering and pagination of the volumes, the table of cases cited in the opinions, the subdivision of the index into condensed titles, and the cross references.[1288] The original work of the reporter is alone protected.[1289] In the opinion of the Court there is no copyright;[1290] these constitute part of the law of the land open to all to make use of as they please, and neither the state, the judge, nor the reporter can acquire or confer any conclusive privilege of copying them. The same rule applies to the head notes in those states where they are prepared by the judge.[1291] On the same grounds of public policy no one can have copyright in the statutes;[1292] the legislature of the state cannot confer it on any one.[1293] There may be copyright in the head notes and arrangement of a digest of the statutes.[1294] [Sidenote: Notes and Additions. New Arithmetic. Adaptations.] The contents of a book do not require to be entirely new; if partially old there will be copyright _quoad_ the new material or new arrangement.[1295] Thus there is copyright in notes and additions to an old work,[1296] in a new arithmetic combining old material in new form,[1297] in translations,[1298] in the adaptation of an old drama introducing a new title, new dialogue, minor characters, scenery, and dramatic situations with the orchestration and orchestra part songs and music,[1299] and in the dramatization of a novel.[1300] [Sidenote: Musical Arrangement.] In one case it was held that the adaptation of a musical piece from the notation suitable to one instrument to that suitable to another was not a sufficiently intellectual process to entitle the adapter to copyright in his adaptations.[1301] It was said that "a mere mechanic could make the adaptation and accompaniment." Since then, however, it has been held that a musical arrangement is the subject of copyright. In _Thomas_ v. _Lennox_[1302] an orchestral accompaniment for a non-copyright oratorio by Gounod was held to be the subject of copyright. In _Carte_ v. _Evans_[1303] an arrangement for the pianoforte of the orchestral score of an opera was held to be copyright. [Sidenote: New Editions.] Copyright in new editions runs _quoad_ the new material from the date of the new edition.[1304] The additions or corrections must be of substantial value. A work which is _publici juris_ cannot be reclaimed by colourable and immaterial alterations or additions.[1305] [Sidenote: Form of Publication.] [Sidenote: Mechanical Devices.] [Sidenote: Letter File.] [Sidenote: Account Book.] A book need not be a book in the ordinary sense of the word; the word in the Act is not to be construed by reference to lexicographers: "the literary property to be protected by the Act is not to be determined by the size, form, or shape in which it makes its appearance, but by the subject-matter."[1306] A single sheet containing literary matter will be protected as a book.[1307] No doubt, however, the subject to be protected must be _ejusdem generis_ as a book or leaflet. The subject-matter must convey, and the form must be suitably adapted for conveying, information to the reader. The copyright law embraces those things that are printed and published for information and not for use in themselves. Thus what is really a mechanical instrument, and if original entitled to protection under the patent law, will not be protected by the copyright law. In _Amberg File_ v. _Shea_[1308] protection was claimed in a letter file. It was said that the spaces between the index letters were adjusted to the average requirements of the correspondent. These average requirements were ascertained by exhaustive research in different directories. Copyright was refused. In _Baker_ v. _Selden_[1309] blank account books of an original type or pattern were refused protection. The judge in that case drew the distinction between what was a proper subject of the patent laws and what was a proper subject of copyright law--"The object of the one is explanation, the object of the other is use."[1310] In _Drury_ v. _Ewing_[1311] a "ladies' chart for cutting dresses and basques for ladies, and coats, jackets, &c., for boys" was protected. It is almost certain, however, that this decision would not now be accepted as sound. Mere labels will not be protected as copyright works.[1312] They may be protected by registration in the Patent Office.[1313] [Sidenote: Originality.] Copyright may be obtained for works of the imagination, or for a mere collection and arrangement of material open to all mankind.[1314] What is meant by originality as a requisite of copyright is that what is claimed as the subject of copyright, whether it be the composition or arrangement of matter, must not have been taken from some literary or artistic work already in existence. It need not be the first of its kind; the same thing may have been done before so as to produce identically the same result.[1315] If the second author, artist, or composer goes about his work independently, searching out his material from the original sources, he is equally entitled to copyright with the first. Herein copyright law differs from the law of patents; in the former there may be two concurrent copyrights in what is identically the same creation, in the latter there can only be one patent, the first inventor being entitled. [Sidenote: Letters.] Letters may be the subject of copyright, whether of a business or private nature, and although never intended by the writer to be published as literary productions. In _Folsom_ v. _Marsh_[1316] the letters of George Washington were the subject of controversy. Story, J., in giving judgment, laid down the law as to the property in letters at some length: "There is no small confusion in the books with reference to the question of copyright in letters. Some of the _dicta_ seem to suppose that no copyright can exist except in letters which are professedly literary, while others again recognise a much more enlarged and liberal doctrine upon the whole subject. In the first place I hold that the author of any letter or letters (and his representatives), whether they are literary compositions or familiar letters or letters of business, possess the sole and exclusive copyright therein; and that no persons, neither those to whom they are addressed nor other persons, have any right or authority to publish the same upon their own account or for their own benefit. But consistently with this right the persons to whom they are addressed may have, nay, must by implication possess the right to publish any letter or letters addressed to them upon such occasions as require or justify the publication or public use of them, but this right is strictly limited to such occasions. Thus a person may justifiably use and publish in a suit at law or in equity such letter or letters as are necessary and proper to establish his right to maintain the suit or defend the same. So if he be aspersed or misrepresented by the writer or accused of improper conduct in a public manner, he may publish such parts of such letter or letters, but no more, as may be necessary to vindicate his character and his reputation, or free him from unjust obloquy and reproach. If he attempt to publish such letter or letters on other occasions not justifiable, a Court of Equity will prevent the publication by an injunction as a breach of private confidence or contract or of the rights of the author, and _a fortiori_ if he attempt to publish them for profit, for then it is not a mere breach of confidence or contract, but it is a violation of the exclusive copyright of the writer. In short, the person to whom letters are addressed has but a limited right or special property (if I may so call it) in such letters as a trustee, or bailee for particular purposes, either of information or of protection or of support of his own rights and character. The general property and the general rights incident to property belong to the writer, whether the letters are literary compositions or familiar letters or details of facts or letters of business. The general property in the manuscript remains in the writer and his representatives as well as the general copyright. _A fortiori_ third persons standing in no privity with either party are not entitled to publish them to subserve their own private purposes of interest or curiosity or passion." It is not quite accurate to say that the receiver of a letter is merely a trustee or bailee for particular purposes. Clearly the receiver of a letter is entitled to destroy it unless there is any express or implied stipulation to the contrary, and probably he can prevent the sender from publishing it by refusing to produce it if it is in his possession. [Sidenote: No Copyright in Titles.] As a rule there can be no copyright in a title.[1317] The deposit of the title-page with the Librarian of Congress does not give the author any exclusive right to the use of that title.[1318] A title can only be protected as a trade mark in connection with a particular literary or artistic production which has become known to the public. The public must be shown to be deceived or to be in danger of being deceived.[1319] A title may be protected by registration as a trade mark.[1320] [Sidenote: Photographs.] Photographs were first protected by the Statute of March 3, 1865; before then protection was refused to them under the head of prints, cuts, or engravings.[1321] It seems to have been doubted at one time whether the protection of photographs was not _ultra vires_ of the powers conferred by the Constitution. There is certainly an apparent difficulty in bringing a photograph within the expression "writings" used in the Constitution; but this word has received an extremely wide and liberal construction, and has been held to be capable of including any literary or artistic production of the intellect. Photographs have been now frequently protected, but it is not every photograph that will be protected, there must be some evidence that the photographer has exercised an intellectual choice of subject-matter, expression, arrangement, light, or other circumstances or conditions which go to the production of an artistic photograph.[1322] It will be a question of fact for the Court or jury whether the photograph is a mere manual reproduction of subject-matter or an original work of art.[1323] In a portrait there may be copyright in so far as the photographer has relied on his own judgment for the choice of light, background, pose, or attitude.[1324] In one case the photograph of a yacht under sail was protected. It required the photographer to select and utilise the best effects of light, cloud, water, and general surroundings, and combine them under favourable conditions for depicting vividly and accurately the view of a yacht under sail.[1325] A slight colourable alteration in a non-copyright photograph will not entitle it to copyright.[1326] [Sidenote: Engravings.] Engravings, cuts, and prints will be protected,[1327] but there must be at least some merit in them as artistic or instructive productions. Thus the prints of common articles of household use in a tradesmen's catalogue,[1328] drawings of billiard tables in a similar catalogue,[1329] a card of specimen colours and tints of zinc paints,[1330] and a poster with coloured drawings of a circus performance[1331] have all been refused protection. If there is real artistic merit in a drawing it will not be disentitled to protection merely on the ground that it has been used as an advertisement.[1332] It has been held that playing cards printed in colours are entitled to protection as "prints."[1333] [Sidenote: Pictures.] The Act of June 18, 1874, enacts that the protection of the Copyright Acts conferred on "engravings," "cuts," and "prints" shall not extend to prints or labels designed to be used for any articles of manufacture. This Act cannot be evaded by attempting to copyright the picture or drawing from which the label is designed. In _Schumacher_ v. _Wogram_[1334] the Court refused protection under the Copyright Acts to a picture representing a young woman holding a bouquet of flowers intended to be reproduced on labels for cigar boxes. The reason for refusing protection of the copyright law to such productions is that their only real value is as a trade mark connected with a particular article of manufacture.[1335] They are not designed in themselves to instruct or amuse. As trade marks they will be protected if registered in the Patent Office. The fact that a picture could be readily lithographed and used as a label does not deprive it of copyright;[1336] it must in order to lose its copyright have been made with the intention of being used as a label. If the painting itself were to be considered a label because copies might be so used, no masterpiece would be entitled to copyright. A painting, engraving, or print in order to be protected must be a pictorial representation of something and not merely a design.[1337] SECTION II.--NATIONALITY OF THE AUTHOR. Unfortunately the Acts of Congress are not clear as to how far the works of foreign authors, or the works of non-residents in the United States are protected. Until 1891 the works of foreign authors not resident in the United States were denied protection. Sec. 4971 of the Revised Statutes ran as follows: "Sec. 4971. Nothing in this chapter shall be construed to prohibit the printing, publishing, importation, or sale of any book, map, chart, dramatic or musical composition, print, cut, engraving, or photograph, written, composed, or made by any person not a citizen of the United States nor resident therein."[1338] By the Act of 1891, the benefits of copyright are extended to the citizens of foreign countries which are proclaimed by the President as conferring reciprocal rights on American citizens. Sec. 4971 of the Revised Statutes is repealed. The Act of March 3, 1891, section 13, enacts-- "That this Act shall only apply to a citizen or subject of a foreign state or nation when such foreign state or nation permits to citizens of the United States of America the benefit of copyright on substantially the same basis as its own citizens, or when such foreign state or nation is a party to an international agreement which provides for reciprocity in the granting of copyright by the terms of which agreement the United States of America may at its pleasure become a party to such agreement. The existence of either of the conditions aforesaid shall be determined by the President of the United States by proclamation made from time to time as the purposes of this Act may require." The Act of March 3, 1891, section 5, amending the Revised Statutes, sec. 4959, enacts that-- "... the alterations, revisions, and additions made to books by foreign authors heretofore published, of which new editions shall appear subsequently to the taking effect of this Act, shall be held and deemed capable of being copyrighted as above provided for in this Act, unless they form a part of the series in course of publication at the time this Act shall take effect." (July 1, 1891.) On these sections two questions seem to be left open: (1) Is the test to be applied the nationality of (_a_) the author, or of (_b_) the proprietor of the manuscript, or other unpublished work, at the time of publication; or will it satisfy the Act if (_c_) either of these persons complies with the requisite conditions of nationality? (2) Will residence in the United States or in one of the proclaimed countries confer the privileges on one who is not a citizen or subject of any of them? 1. It may be that it would be a sufficient compliance with the requirements of the Act if either the author or his assignee before publication were a citizen of the United States, or a subject or citizen of a proclaimed country. Section 1 amending the Revised Statutes, sec. 4952, gives the sole liberty to "the author, inventor, designer, or proprietor, and to the executors, administrators, or assigns of any such person." Section 13 "applies the Act" to citizens or subjects of certain foreign states or nations. Under the Revised Statutes, section 4971, before 1891 it was the nationality of the author alone that was considered, and it would have been no answer to have said that the assignee before publication was an American citizen or resident in the United States. Perhaps in 1891 the benefit was designedly extended to assignees before publication, who complied with the conditions and who had taken assignments from foreign authors who did not. On the whole, however, I am inclined to the opinion that it will not do merely to allege that the assignee of the uncopyrighted and unpublished work is a citizen of the United States or a subject or citizen of one of the proclaimed countries. It must, I think, be alleged that the author, inventor, designer, or proprietor _ab initio_ has complied with the conditions as to nationality. By proprietor _ab initio_ (and probably this is the true meaning of "proprietor" in section 1 of the Act of March 3, 1891[1339]), I mean one who compiles a work by his servants or agents, for instance, a body corporate, which cannot be said to be an "author, inventor, or designer," and yet is entitled to the whole property in the work of its servants as it grows up from day to day. I have not considered the assignee after publication. I think it must be abundantly clear that his nationality cannot be taken as the test, since if he took his assignment from a foreign author who did not comply with the conditions of nationality when the work was published, the work at the time of assignment would have become _publici juris_. If he took his assignment from one who complied with the conditions of nationality and copyrighted the work, the fact of his being an alien would not prevent him acquiring the copyright already secured. 2. Before 1891 residence in the United States, which was interpreted to mean permanent residence and not merely for the purposes of publication,[1340] was sufficient to entitle an author to the privileges of the Copyright Acts. The provision now, under the Act of March 3, 1891, is that the Act shall only apply to a citizen of a foreign country which has been proclaimed. Reading the Act strictly a foreign resident in the United States but not a citizen thereof is excluded from protection which he formerly had, unless he is a citizen or subject of a proclaimed country. No doubt this was not intended to be the result of the Act of 1891, but the words are plain and unambiguous, and there seems no reason why they should not have effect according to their plain meaning. _A fortiori_ a foreigner resident in, but not a subject of, one of the proclaimed countries would not be entitled to copyright. The following States have been proclaimed as fulfilling one or other of the required conditions, and their citizens are therefore entitled to acquire copyright in the United States in the same way as an American citizen: Belgium } France } Great Britain } July 1, 1891. Switzerland } Germany April 15, 1892. Italy October 31, 1892. Denmark May 8, 1893. Portugal July 20, 1893. Spain July 10, 1895. Mexico Feb. 27, 1896. Chili May 25, 1896. SECTION III.--NECESSARY FORMALITIES. No person is entitled to copyright unless he--[1341] I. In the case of a book, map, chart, dramatic or musical composition, engraving, cut, print, photograph, or chromo-- (i.) Delivers (or mails within the United States) to the Librarian of Congress, _on or before the day of publication_, in the United States or elsewhere a _printed copy of the title_ of the work. (ii.) Delivers (or mails within the United States) to the Librarian of Congress, _not later than the day of publication_, in the United States or elsewhere _two copies_ of the work. II. In the case of a painting, drawing, statue, statuary, or a model or design for a work of the fine arts--[1342] (i.) Delivers (or mails within the United States) to the Librarian of Congress, _on or before the day of publication_, in the United States or elsewhere a _description of the work_. (ii.) Delivers (or mails within the United States) to the Librarian of Congress, _not later than the day of publication_, in the United States or elsewhere _a photograph of the work_. The proprietor of every copyright book or other article must deliver (or mail within the United States) to the Librarian of Congress a copy of every subsequent edition wherein any substantial changes shall be made.[1343] Each volume of a book in two or more volumes, when such volumes are published separately, and the first one has not been issued before July 1, 1891, and each number of a periodical is to be considered an independent publication.[1344] The requirements of the statute as to delivery of title and copies, and printing of notice must therefore be complied with in the case of each volume of a book or number of a periodical. =Conditions Precedent.=--The deposit of title and delivery of copies as prescribed by the statutes are conditions precedent to copyright and not merely declaratory.[1345] There is no common law right after publication, and therefore if a work is published without the proper formalities having been observed it becomes _publici juris_, and any one may make what use of it he pleases.[1346] Ignorance of the law is no excuse even although a new Act has just been passed altering the time within which copies must be delivered.[1347] In an action for infringement the declaration must set out in detail a compliance with the law as to formalities,[1348] and the burden of proof thereof is on the complainant.[1349] He must prove the deposit of title, delivery of copies, notice of copyright, and the date of publication. The latter is essential, as on it depends the validity of the entry.[1350] =Delivery of the Title.=--The copy of the title to be delivered must be "printed," _i. e._ the characters used must be those ordinarily used in printing, but they may be made by hand with a pen.[1351] The work must be published within a reasonable time after the deposit of the title-page, otherwise the formalities will not have been complied with.[1352] Two months' delay in mailing to the Librarian of Congress copies of a photograph after the filing of its title is not unreasonable.[1353] It will not do to publish a book under a substantially different title from that deposited. Immaterial variations in the title, or sub-title, or complete alteration of a description on the title-page will not make the deposit void. In _Donnelley_ v. _Ivers_[1354] the title deposited was "Over One Thousand Recipes. The Lake Side Cook Book: A Complete Manual of Practical, Economical, Palatable, and Healthful Cookery. Chicago: Donnelley, Lloyd & Company, 1878." The title on the book as published was "The Lake Side Cook Book, No. 1. A Complete Manual of Practical, Economical, Palatable, and Healthful Cookery. By N. A. D." It was held that the requirement as to the deposit of title having been "substantially, in good faith complied with," the objection was not tenable. What is required is, that the deposited title be sufficient to identify the book with substantial certainty. In _Carte_ v. _Evans_,[1355] the title filed was "Pianoforte Arrangement of the Comic Opera, The Mikado, or the Town of Titipu, by W. S. Gilbert and Sir Arthur Sullivan. By George L. Tracey." The book as published bore the title "Vocal Score of the Mikado, or The Town of Titipu. Arrangement for Pianoforte by George Lowell Tracey (of Boston, U. S. A.) of the above-named opera by W. S. Gilbert and Arthur Sullivan." This was held a sufficient deposit to protect the pianoforte accompaniment. In _Black_ v. _Allen_[1356] the title deposited was "An Outline of the Political and Economic History of the United States, with Maps and Charts: I. History and Constitution by Alexander Johnson, M. A.; II. Population and Industry by Francis A. Walker, LL. D." The title of the book as deposited was "United States: Part III. Political Geography and Statistics, copyright, 1888, by Francis A. Walker." In the absence of evidence that the defendant was deceived or misled by the change of the title the Court held that it was valid. In _Daly_ v. _Brady_[1357] the title of a drama deposited was "Under the Gaslight: A Drama of Life and Love in these Times." The actual title as published was "Under the Gaslight: A Romantic Panorama of the Streets and Homes of New York." The Court held that the change of title might deceive the public, and therefore the deposit of title was bad; but this decision was reversed in _Daly_ v. _Webster_;[1358] the variance was in the description. "The title required may include a sub-title, but it does not include a description of the book upon the title-page." An author may wish to change his title entirely after he has deposited the title-page. He may do this before the deposit of copies by depositing a fresh title-page; but it is questionable whether the duration of his copyright will run from the first deposit of title or from the deposit of the altered title.[1359] =Delivery of Description.=--Probably a short description is all that is required. If the title is in itself descriptive, probably that will be sufficient. The photograph of a painting, or other work of art which is required to be delivered, does not take the place of a description.[1360] =Delivery of Copies.=--Under the Revised Statutes before 1891 the printed copies had to be delivered "within ten days from the publication thereof." This was sufficiently complied with by the delivery of two copies on the day before publication.[1361] The Act of 1891 now requires that the two printed copies shall be delivered "not later than the day of publication." The copies deposited with the Librarian of Congress do not require to bear the statutory notice as to copyright.[1362] The memorandum given by the librarian is sufficient _primâ facie_ evidence of the fact and date of deposit.[1363] The librarian's date stamp on the book is not conclusive, and may be rebutted by other evidence of the actual date of deposit.[1364] If the copyright matter is ordinarily bound up with other matter, the Librarian of Congress cannot insist on the delivery of the bound volume complete. It is a sufficient delivery to take the volume to pieces and deliver the loose sheets on which the copyright matter is printed.[1365] Before 1891 the two copies deposited had to be of the "best edition," but this appears to be no longer necessary. =Printing in the United States.=--In the case of i. books, ii. chromos, iii. lithographs, iv. photographs, the two copies required to be delivered must be printed from type set within the limits of the United States or from plates made therefrom, or from negatives or drawings on stone made within the limits of the United States, or from transfers made therefrom.[1366] This requirement was introduced in 1891, when the privileges of copyright were extended to subjects and citizens of foreign countries. Formerly there was no obligation to print within the United States. It has been held that a volume of music is not a "book" within the meaning of the provision in the statute enacting that the two copies delivered shall be printed in the United States.[1367] It would seem to follow that the necessity of printing in the United States does not extend either to maps or charts, or even to dramatic compositions in book form. These are all dealt with specifically in the Act, and therefore, on the authority of _Littleton_ v. _Oliver_,[1368] do not come within the generic term "books." =Retrospective Provision.=--By an Act of March 3, 1893, it is enacted-- "That any author, inventor, designer, or proprietor of any book or other article entitled to copyright, who has heretofore failed to deliver in the office of the Librarian of Congress two complete copies of such book, or description or photograph of such article within the time limited by title sixty, chapter three of the Revised Statutes relating to copyrights and the Acts in amendment thereof, and has complied with all other provisions thereof, who has before the 1st day of March 1893 delivered at the office of Librarian of Congress or deposited in the mail addressed to the Librarian of Congress two complete printed copies of such book, or description or photograph of such article, shall be entitled to all the rights and privileges of such title sixty, chapter three of the Revised Statutes and the Acts in amendment thereof." =Notice of Copyright.=--No person can maintain an action for infringement of his copyright unless each published copy of his work bears one or other of the following notices:[1369] "Entered according to Act of Congress in the year ----, by A. B., in the office of the Librarian of Congress at Washington. Or: "Copyright, 18--, by A. B." Books must bear the notice: "On the title-page or page immediately following."[1370] Designs for moulded decorative articles, tiles, plaques, or articles of pottery: "Upon the back or bottom of such articles or on such other place upon them as it has heretofore been usual ... for the placing of manufacturers, merchants, and trade marks thereon."[1371] Other works, including musical compositions, photographs, pictures, engravings: "Upon some visible portion thereof, or of the substance upon which the same shall be mounted."[1372] The statutory requirements as to notice must be strictly complied with, and a departure from the exact words of one or other of the alternative forms may be fatal to the right of action. When the only notice on a book was "Entered according to Act of Congress, in the year 1878, by H. A. Jackson," it was held an insufficient notice as complying with neither of the two alternative forms.[1373] [Sidenote: Slight variation.] A very slight variance in the words or the orders of the slight words, if the matter is substantially the same, will not, however, make a bad notice. Thus "1889, Copyrighted by B. J. Falk, N. Y.," has been held a good notice.[1374] So also has "Copyright entered according to Act of Congress, 1889, by T. C. Hefel, civil engineer." It was held to comply with the short alternative notice, viz.: "Copyright, 18--, by A. B.," the superfluous words being disregarded on the doctrine of _utile per inutile non vitiatur_.[1375] _The name of the proprietor_ who takes out the copyright is an essential part of the notice. In _Osgood_ v. _Aloe_[1376] the following notice was printed on the page following the title-page, "Copyright, 1891; all rights reserved." This was held a bad notice, and the name of the publishers, who were also the proprietors, printed on the title-page was insufficient. There was nothing to show that they were proprietors as well as publishers. Copyright may be taken out in the name of a firm or a conventional trade name, and if that name is on the notice it is sufficient.[1377] But it must be the full and proper name under which the proprietors are trading. Thus when _The Illustrated American Publishing Company_ issued a paper entitled _The Illustrated American_, the following was held an insufficient notice on a crayon drawing published by the Company, viz.: "Copyrighted 1891, by _The Illustrated American_."[1378] It seems, however, that it is not necessary for an individual to give his full name if what is given is sufficient for the purposes of identity. Thus the surname and the first letter of the Christian name,[1379] and in one case the surname alone have been held sufficient.[1380] The latter case was that of a photographer in Brooklyn. It was shown that there was only one photographer of that name in Brooklyn, and the notice ran "Copyright, '93, by Bolles, Brooklyn."[1381] If the full name is given there is no necessity to give the address of the proprietor, even although he be a foreigner resident abroad.[1382] It will not do to put the name of an agent on the notice. In _Nifflin_ v. _Dutton_[1383] the authoress of "The Minister's Wooing" took out a copyright in the whole book in her own name. Subsequently several chapters of the story were published serially in the _Atlantic Monthly_. The only notice of copyright in that magazine was in the name of the publishers, Ticknor and Fields. It was held that these chapters had not a sufficient notice. Great care must be taken in the case of serial publications. If a story is published in a magazine each part must be treated as a separate book, and must contain a notice of copyright by the author if he is the owner. When the book is published as a whole these notices must be repeated; it will not do merely to copyright the whole book afresh and print a new notice. _Date of Entry._--The date required is the year only; neither the day nor the month is necessary. The statement of a wrong year has been held fatal to the notice. In _Baker_ v. _Taylor_[1384] the true date of taking out copyright was 1846. The notice stated 1847 as the year, and this was held as bad notice, even although the error arose from mistake. But in _Callaghan_ v. _Myers_[1385] the notice put an earlier instead of a later date than the actual date of deposit; the true date being 1867, the notice declared copyright to have been entered in 1866. This was held an immaterial error, since it deceived no one, and would only operate to shorten the claimant's copyright by one year. In _Schumacher_ v. _Wogram_[1386] Wallace, J., doubted whether the declaration in the notice of a date earlier than the true date would not make the notice void. It is immaterial that the date on the notice is abbreviated if it is sufficiently clear what date is meant; thus, "Copyright, '94, by A. B.," is a good notice.[1387] It is extremely difficult to determine what date the law requires to be placed upon the second or subsequent edition of a book wherein substantial alterations or additions have been made. In the case of a reprint, I think it is clear that the date of the first edition, and that only, is the correct date; and even where alterations or additions have been made I think that that date is necessary, and I doubt whether it is necessary to add another notice giving the date of the revised edition. It would seem that a subsequent edition does not require to be "entered" in the same manner as the original edition; the statute is complied with by the deposit of a copy of every subsequent edition wherein any substantial changes shall be made. If this is done copyright in the alterations seems to have been procured. In _Lawrence_ v. _Dana_[1388] Clifford, J., held that it was not necessary in a subsequent edition to give the date of the entry of the first edition[1389]; but I doubt if this is sound. On the whole, I think the correct view is that the matter peculiar to the first edition, whether it be printed in the first or any subsequent edition, must bear a notice with the date when that matter was first entered, and that the matter peculiar to any subsequent edition will be protected until the expiry of the copyright in the first edition, if it bears a notice with the date of the first edition only, and if a copy has been sent to the Librarian of Congress. I further think that the matter peculiar to subsequent editions may be protected for the full term of twenty-eight or thirty-two years from the date of the first publication of the edition in which it is first contained, if such edition is separately entered, by two copies of the title-page and of the book being deposited, and if it bears a notice with the date of such separate entry. I think, therefore, in every new edition in which there is a substantial alteration or addition there should as a matter of practice be a separate entry of copyright and separate notices on the title-page, one for each edition of the book. The question may be raised as to whether a book is a subsequent edition or an entirely new book. In _Banks_ v. _M'Divitt_,[1390] the plaintiff had annotated the rules of the Supreme Court of New York. He had published such annotated editions in 1858 and 1871. In 1874 the rules were extensively amended, and the plaintiff published an annotated copy. It was held that this was not a subsequent edition of the original annotated rules, and therefore no notice of the original date of publication was required. I very much doubt whether this is a sound decision. It seems to me that in so far as the new book was the same as the old, it was a subsequent edition, and in order to retain protection required a notice of original publication. _Every published copy_ of every edition[1391] of a work must have the statutory notice thereon; every proprietor who sues must have printed the notice on every copy published by him. If an assignee of a copyright fail to print a proper notice he will have no remedy even against his assignor for infringement.[1392] From the wording of the Act of June 18, 1874, it seems that the printing of the notice is not now a condition precedent to copyright, but is only a condition of the right of action upon infringement. It is, I think, questionable whether the failure of A to print a proper notice will affect the right of B, his assignee, to sue for an infringement subsequent to the assignment. One who makes an unauthorised copy of a literary or artistic work is not exempt from liability merely because he can show that the copy from which he copied had no notice. His defence must be that such copy left the proprietor's hands without a proper notice.[1393] The question has been raised, but not answered, whether if the proprietor grant a licence, and the licensee omits to insert a proper notice, the proprietor is without a remedy.[1394] Formerly if a book were published in several volumes at different times, it was sufficient to place the notice on the first volume only,[1395] but now since the Act of 1891[1396] each volume of a book and each number of a periodical is to be considered an independent publication, and the notice must be placed on each volume or part accordingly. There is no special provision in the law of the United States as to newspapers and other periodical works, therefore each issue must be considered a separate work, and the requisite formalities complied with in each case. _Notice on Painting._--It was contended in one case[1397] that there was no necessity to place the notice on an original painting, the Act only requiring notices to be placed on copies made therefrom. The Court held, however, that the original work was a "copy" within the meaning of the provision in the Act, and must be inscribed with the notice accordingly. _Maps in Atlas._--Each map contained in an atlas does not require to be separately copyrighted, or bear a separate notice of copyright. They are protected by a copyright of the entire work.[1398] The same would, no doubt, apply to a volume of engravings or other works of art. =Publication.=--There appears to be some doubt as to whether publication is necessary as a condition precedent to the statutory rights. The duration of copyright is to be measured from the date of the deposit of the title or description with the Librarian of Congress; but probably that in itself gives no proprietary right either in the title or the book. It has been suggested that it gives an "inchoate right," or an "equitable right, which Chancery will protect until the other acts may be done."[1399] It may be that when the formalities have been completed by deposit of copies the right then acquired dates back to the deposit of title so as to give a statutory remedy against an infringement made between the two dates.[1400] When the copies of the book have been deposited, the express conditions precedent of the statute have been performed; but the question has been raised whether there will be copyright unless within a reasonable time thereafter the book or other work is put in circulation among the public. In _Boucicault_ v. _Hart_[1401] the Court held that although the title-page had been filed there could be no copyright without "a deposit of copies and publication." In _The Jewellers' Mercantile Agency_ v. _Jewellers' Publishing Company_[1402] the New York Supreme Court, on a question as to whether an action should be founded on the Statute or at Common Law, held that although there had been deposit of title and deposit of copies in accordance with the Acts there could be no copyright, but only a common law right unless there had been a "publication." In _Ladd_ v. _Oxnard_,[1403] the circuit judge, Putnam, thought that the statutory right was perfected by deposit of copies, and that from then, until "publication," there were concurrent remedies under the Statute and at Common Law. After the decision in _Ladd_ v. _Oxnard_[1404] the decision in _The Jewellers' Mercantile Agency_ v. _Jewellers' Publishing Company_ was reviewed by the Appeal Court of New York.[1405] The Court was unanimous in reversing the judgment below, and holding that the plaintiff's right of action was a statutory right and not a common law right. Three of the judges gave their decision on the ground that the facts proved showed a publication subsequent to deposit; but the other three gave it on the ground that the deposit itself was a publication and completed the statutory copyright. It is submitted that this latter is the correct view, and that, therefore, after deposit of the title-page and deposit of copies in due form nothing further is necessary to acquire copyright. Apart from the question as to whether publication is necessary to complete the statutory right, several questions of importance may arise on the fact or date of publication, _e. g._: 1. The remedy at Common Law depends entirely on the absence of publication. 2. The due performance of the formalities of deposit of title and copies are relative to the date of publication. The essence of publication consists in a disclosure of the thing itself, so that the public without discrimination of persons have an opportunity of enjoying its use.[1406] The most usual method of publication of a literary or artistic work is the offering for sale, selling, or giving away of copies.[1407] It is not necessary that a copy of the book be actually sold, it is sufficient if it be offered to the public. The act of publication is the act of the author, and cannot be dependent on the act of the purchaser.[1408] Gratuitous distribution to members of the public, or leaving copies in a place to which the public have access, such as an hotel, is publication.[1409] The sale or distribution of copies, however, may be so limited to individuals, or particular classes of individuals, as not to amount to publication. When before the advertised date of publication an advance lot of books in quires unbound were sent to different publishers, with a request not to publish until bound copies should be sent, it was held, in the absence of evidence that the request was not complied with, that there had been no publication.[1410] The author of a literary or artistic work may circulate it among his friends, or among a restricted class subject to conditions, and at the same time retain his common law right in unpublished work.[1411] A teacher may circulate copies of his work among the members of his class without publishing the work.[1412] In one case a sheet of miniature copies of engravings was sent round to picture dealers solely for their inspection and to solicit orders. This was held not to be a publication.[1413] Copies of an unpublished opera given to the performers marked "Right of Representation and Reproduction Reserved" is not a publication.[1414] The transmission of news over telegraphic instruments does not constitute a general publication.[1415] In order to protect the common law right the distribution of copies must be strictly confined to individuals or to a class. If the man in the street may buy it there is a publication even although the work is of such a nature (_e. g._ a trade journal) as will practically be confined to a limited class.[1416] It does not make it the less a publication that every purchaser of, or subscriber to, a literary or artistic work is bound by restrictive conditions as to its use. So long as the work is put within the reach of all and not limited to a class, it matters not what conditions are imposed on the individual subscriber.[1417] Thus the sale of a book to all who paid for a course of instruction in a system for training the memory was held to be a publication notwithstanding that each sale was made under a contract not to disclose the contents to others.[1418] A book may be published although it is not sold but issued on loan to subscribers with an express condition that the copy must be returned on the expiry of the subscription.[1419] Publication of a book in a serial form reserving all other rights to the author, is such a publication as to abandon the copyright to the world, if steps have not been taken to copyright it before such publication.[1420] I have little doubt, but there is no definite authority, that a book may be published so as to destroy the common law right, although it is not printed. Circulation in manuscript would be enough.[1421] The public performance of a dramatic piece is not a publication of it so as to deprive the proprietor of his common law right in the manuscript.[1422] The same rule probably applies to the oral delivery of a lecture or sermon, unless there is some act or circumstance from which it can be implied that the speaker intended to abandon the literary matter to the free use of the public. It has been held by the Circuit Court of Appeals[1423] that the exhibition of a picture in a public gallery is a publication of the picture so as to destroy the owner's rights, unless he has taken steps to secure a copyright. One of the three judges dissented from the judgment, but on what ground does not appear. In a case decided by a district judge,[1424] shortly before the one just cited, the judge thought that the exhibition of a painting in a public saloon did not work a forfeiture of the right to obtain copyright unless the general public was permitted to take copies at pleasure, and such permission would not be assumed in the absence of direct evidence. The same judge decided that neither the sale of a replica in a different size made before the principal picture by way of a study nor the publication of a crayon sketch in an exhibition catalogue was a publication of the picture. It is submitted that the exhibition of a picture in a public gallery is a publication. It seems to afford the public an opportunity of making every legitimate use of the contents of the picture. They could not make any greater use of the contents if they bought an engraving of the picture. It would not even then be lawful for them to make copies of the picture. As to the replica and the rough sketches in the catalogue, no doubt they were not "copies" of the picture, and therefore their publication could not entirely destroy the copyright in the picture; but if these were published without being copyrighted or without statutory notice, clearly the public could copy them, and to that extent the copyright in the design of the original picture would have been forfeited. An unauthorised publication will not operate to forfeit the common law rights;[1425] but if authorised by the owner it is immaterial that the publication constitutes a breach of contract with a licensee or part assignee.[1426] Thus the author of a German unpublished play conveyed the performing rights in the United States to a citizen of the States, and contracted with him that he would not publish the play as a book. In breach of this contract the play was published in Germany under the authority of the author. It was held that such publication destroyed all literary rights in the United States.[1427] When the defendant relies on previous publication he must definitely prove such publication, and that it was made with the consent of the owner.[1428] _The Library of Congress._--All the copyright records are in the Library of Congress at Washington, and are kept by the Librarian of Congress, who makes an annual report to Congress of the number and description of copyright publications. The Librarian of Congress must record the name of each copyright work in a book kept for the purpose. The form of entry is as follows: "Library of Congress, to wit,--Be it remembered that on the ----day of ----, A. B. of ----, hath deposited in this office the title of a book (map, chart, or otherwise as the case may be, or description of the article), the title or description of which is in the following words, to wit: (here insert the title or description), the right whereof he claims as author (originator or proprietor as the case may be), in conformity with the laws of the United States respecting copyright.--C. D., Librarian of Congress." The librarian must give a copy of the title or description under the seal of the Librarian of Congress to the proprietor whenever he requires it. The Librarian of Congress is entitled to receive from the persons to whom the services are rendered the following fees:[1429] 1. For recording title or description 50 c. 2. For a copy of such record under seal 50 c. 3. For recording and certifying a written consignment $1 4. For a copy of an assignment $1 All fees so received must be paid into the Treasury of the United States. The charge for recording the title or description of the work of a person not a citizen of, or resident in, the United States is $1. The Librarian forwards a note of the title-entries to the Secretary of the Treasury, who must prepare and print, at intervals of not more than a week, catalogues of such title-entries for distribution to the collectors of customs of the United States and to the postmasters of all post-offices receiving foreign mails; and such weekly lists as they are issued are furnished to all parties desiring them at a sum not exceeding $5 per annum.[1430] The Secretary and Postmaster-General are empowered and required to make and enforce such rules and regulations as will prevent the importation into the United States of all articles prohibited by the Copyright Acts.[1431] The Postmaster to whom a copyright book, title, or other article is delivered for the Librarian of Congress must, if requested, give a receipt therefor, and when so delivered he must mail it to its destination.[1432] For every failure on the part of the proprietor of any copyright to deliver or deposit in the mail either of the published copies, or description, or photograph, the proprietor of the copyright is liable to a penalty of $25, to be recovered by the Librarian of Congress in the name of the United States in an action in the nature of an action of debt in any district court of the United States, within the jurisdiction of which the delinquent may reside or be found.[1433] SECTION IV.--IMMORAL WORKS. A work containing immoral matter will not receive the protection of the Courts.[1434] A song containing the verse, "She's the hottest thing you ever seen," was not protected.[1435] The introduction of obscene, profane, or libellous matter into a literary or artistic work does not render it _publici juris_; the copyright remains, but the Court will not entertain any action upon it. Thus in _Broder_ v. _Zeno_[1436] the Court said that their decision to refuse protection would not prevent the complainants from republishing their song, and by omitting the objectionable word thus secure a valid copyright. If an action is brought for the piracy of immoral matter it will be dismissed without costs to either party. The fact that a work such as playing cards may, and probably will, be used for an unlawful purpose, does not disentitle it to protection.[1437] A guide to the turf has been protected,[1438] so has a list of records and trotters and pacers.[1439] SECTION V.--DURATION OF COPYRIGHT. "Copyrights shall be granted for the term of twenty-eight years from the time of recording the title thereof."[1440] "The author, inventor, or designer, if he be still living, or his widow or children if he be dead, shall have the same exclusive right continued for the further term of fourteen years, upon recording the title of the work or description of the article so secured a second time, and complying with all other regulations in regard to original copyright, within six months before the expiration of the first term: and such persons shall, within two months from the date of said renewal, cause a copy of the record thereof to be published in one or more newspapers printed in the United States for the space of four weeks."[1441] In _Callaghan_ v. _Myers_[1442] it was said that if by an error the notice of copyright on a published book bore a date prior to the actual year of publication the result would be not that the notice was bad, but that the term of copyright would date from the year specified in the notice. Notice that the right to obtain an extended term is not given to the "proprietor;" therefore an employer whose servant did literary or artistic work in his employment would not be entitled to an extension. It seems doubtful whether the servant in such a case, although the actual author, would be entitled to an extension: it is thought not. If the author, inventor, or designer assigns his copyright, he does not part with his right to an extension unless this is clearly intended by the transfer.[1443] From the terms of the statute one might doubt whether the right to obtain an extension is assignable. No doubt a contract to assign it would be valid, and a document purporting to assign it would be held equivalent to such, so that on the extension being acquired the purchaser could compel an assignment. If the author of an unpublished work conveys all right, title, and interest in it to another, he certainly cannot take out an extended term to run against his grantee.[1444] It seems doubtful whether he can take it out at all. Certainly his grantee cannot, and probably the author could not for his benefit. If the original term is invalid there will be no right to a renewal.[1445] CHAPTER III WHO IS THE OWNER OF THE COPYRIGHT? Under Section 4952 of the Revised Statutes as amended by the Act of March 3, 1891, the statutory right is vested in "the author, inventor, designer, or proprietor, and the executors, administrators, or assigns of any such person." Care must be taken in entering a copyright that it is entered by and in the name of the owner of the common law right in the literary or artistic work. The entry does not require to be in the name of the author or to disclose who he is. It must be in the name of the owner, and if entered in the name of any other person it will be a bad entry.[1446] Thus, when a printer in his own name copyrighted a book of which he was not the owner, he could not maintain an action either for his own use or for the use of the owner.[1447] Every action for infringement must be brought in the name of the owner of the copyright for the time being; and it would seem, if he is not the author himself, he must show a derivative title from the author.[1448] The owner of a manuscript by an author unknown would not be entitled to copyright as "proprietor" and first publisher.[1449] SECTION I.--THE AUTHOR. _Primâ facie_ the author is owner of the copyright. If he is in a position of employment the right in his work may vest on creation in his employer; or he may have contracted in such a way that the property passes to another.[1450] But some relationship or contract must be shown whereby the right passes, otherwise it remains the property of the author. The author who does work on commission does not necessarily part with his copyright, it may be expressly or impliedly reserved;[1451] neither does an author under a publishing agreement necessarily convey his rights to the publisher.[1452] In either case it will depend on a construction of the contract between the parties. The author of a literary or artistic work is the man who creates it in his mind.[1453] He may employ others in the execution of the details or in the merely manual or mechanical work and yet remain the sole author. The author of a photograph is the man who arranges the subject and makes choice of the time and light. It does not make him any less the sole owner of the work that he employs some one to take off the cap or perform other manual details. A man who compiles a dictionary or a directory may be the sole owner of it, although he has had scores of employees working up the separate parts for him.[1454] But to constitute one an author he must show that his was the "inventive" or "creative" mind; it will not do that he has suggested a scheme and employed or procured some one else to carry it out independently;[1455] he must by his own intellectual labour applied to the material of his composition produce an arrangement or compilation new in itself.[1456] There may be joint authorship resulting in co-ownership. When an unpublished work or copyright belongs to two or more persons in common, whether as co-authors or co-assignees, either of the two may alone sue a wrongdoer,[1457] and either may at his own expense publish the book without accounting to his co-owner.[1458] SECTION II.--THE EMPLOYER. Probably in the case of a paid servant who does literary or artistic work for his master in the course of his employment, the master is the proprietor of the work even in its embryo state, and no conveyance, transfer, or consent by or on behalf of the servant is necessary to entitle the master to enter the copyright in his own name as proprietor. In such a case he does not require to show that he is the "author" of the work; he is a proprietor, and is entitled to the copyright as such.[1459] In the case of work done on commission the relationship of the parties is somewhat different. The author is not a servant but an independent contractor, and therefore his work does not _ab initio_ vest in his employer. There is a strong presumption in the case of a commission to execute work not in existence at the time, that the work when executed is to belong unreservedly to the person giving the order.[1460] The question depends, however, entirely on what the actual agreement between the parties was.[1461] An author, although he does work on commission, may well reserve the copyright to himself, giving to his employer a licence for a particular purpose only.[1462] If it has been agreed expressly or impliedly that the employer is to become owner of the copyright, then the delivery of the manuscript or other work in fulfilment of the contract will pass the author's literary or artistic common law right to the employer, and the latter may take the copyright in his own name as proprietor.[1463] If the term of the contract were that the author should retain the copyright, copyright must be entered in the author's name. SECTION III.--THE STATE. It has been questioned whether the Government of the United States or an individual State could take out a copyright for itself.[1464] It does seem doubtful whether the State can _ab initio_ be the proprietor of a copyright. As was pointed out in _Banks_ v. _Manchester_:[1465] "The State cannot properly be called a citizen of the United States or a resident therein, nor could it ever be in a condition to fall within the description in the Revised Statutes, section 4952 or section 4954." A corporation, however, has been held capable of entering itself as the original proprietor of a copyright.[1466] In the case of _Heine_ v. _Appleton_,[1467] where an artist was employed on a Government expedition to Japan on the terms that all his artistic and scientific work should be the property of the United States Government, and the artistic material was, with the artist's consent, published by order of Congress in the report of the expedition, it was said that the artistic matter had been abandoned to the free use of the public. It does not appear, however, whether Congress, if they had taken steps, could or could not have secured a copyright in the literary or artistic matter in the report. Whether or not the Government of the United States or a State could be lawfully entered as the original proprietors of a work, it cannot be seriously doubted that as assignees they could acquire a copyright in matter already copyrighted by an individual. This they would be entitled to purchase and hold as any other Government property, such as ships, guns, and stores. A copyright might be taken out by an individual minister for the benefit of the people.[1468] SECTION IV.--THE ASSIGNEE. Before copyright has been secured the common law rights in a manuscript or other unpublished work may be conveyed by parol; no writing or evidence in writing is required.[1469] If a publisher takes a copyright in his own name with the knowledge and acquiescence of the author, the publisher is the lawful owner of the copyright subject to his accounting to the author in terms of the contract between them.[1470] Under the Act of 1831, and until the Revised Statutes, 1874, were passed, it would seem that a manuscript could not be assigned except by writing.[1471] Although the common law exclusive right of first production may pass by parol or delivery, it does not necessarily pass with possession or even with the ownership of the manuscript or other work. An author or other proprietor may sell documents, pictures, or other literary or artistic articles, reserving to himself the right of publication and right to acquire copyright and subsequently multiply copies.[1472] If an author's manuscripts are sold in execution, the purchaser does not acquire the right of publication. After copyright has been secured the assignment is governed by statute. Section 4955 of the Revised Statutes, 1874, provides that copyrights are assignable in law by any instrument in writing, and such assignment must be recorded in the office of the Librarian of Congress within sixty days after its execution; in default of which it is void as against any subsequent purchaser or mortgagee for a valuable consideration without notice. It must be considered at least doubtful whether this section affects a question between the parties or between the assignee and one who does not claim through the assignor.[1473] Mr. Drone, in his work on copyright, expresses an opinion that the first part of the section is merely permissive, and intended to show that if the assignment is in writing no formalities are required. I doubt if this is sound. I think that even as between assignor and the assignee the assignment must be in writing; but I think the assignee can, without recording the assignment, sue his assignor or any third person, except those who claim a title through the assignor. An agreement to assign may be made by parol, and where there was no subsequent assignment in proper form damages could be recovered for breach of the agreement.[1474] Any alien friend may be an assignee of a copyright in the United States.[1475] The assignee appears to take with the copyright an assignment of the assignor's choses in action; he has been held entitled to sue in respect of infringements committed prior to assignment.[1476] An assignment need not necessarily be made by conveying the author's entire right to one person. It may be conveyed to two or more persons in common, or an undivided interest may be conveyed to one or more persons.[1477] We have seen that the statutory right of reproduction is divisible from the right of property in the concrete work.[1478] Thus an author may sell his painting or manuscript and retain the right to multiply copies. Further, the various rights of copyright may be split up as the holder pleases;[1479] one may have the right of printing, another the right of translating, and a third the right of performing. The assignment may also be limited as to a particular country or countries,[1480] the right to perform or print in America may be given to A, and the right to perform or print in Great Britain to B. Probably an assignment cannot be limited to a portion of the United States.[1481] I do not think that a copyright could be assigned for a limited time.[1482] As a rule a licensee cannot sue in respect of an infringement; but a licensee has been held the proper party to sue when he was an exclusive licensee, and by the terms of his licence was to bring all necessary suits.[1483] Copyright passes by bequest or on intestacy to the executors or administrators of the owner.[1484] On bankruptcy the bankrupt's copyrights may be applied for the benefit of the estate; but it would probably be necessary for the Court to order a transfer in conformity with the requirements of the Copyright Acts.[1485] Probably a bankrupt's manuscripts and other private matter could not be published for the benefit of the estate without the consent of the bankrupt. CHAPTER IV INFRINGEMENT OF COPYRIGHT The exclusive right given by the statute is "the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending ... and, in the case of a dramatic composition, of publicly performing or representing it or causing it to be performed or represented by others; and authors or their assigns shall have exclusive right to dramatize and translate any of their works for which copyright shall have been obtained under the laws of the United States."[1486] SECTION I.--WHAT IS A PIRATICAL COPY. A copy of a literary or artistic work is such a reproduction of the original as will serve in whole or in part as a substitute for the original. Thus the plate from which a piratical engraving is intended to be struck is not a copy of the original engraving amounting to an infringement.[1487] Neither when several stones are required to produce a lithograph is an impression of the first stone only giving a mere outline an infringement.[1488] But a lithograph may be an infringement of a photograph if it produces the general conception even although the artistic detail and peculiar merit of the photograph are not reproduced.[1489] It has also been held that a photograph may be infringed by the design thereof being stamped on leather for a chair seat.[1490] A perforated scroll used for a mechanical musical instrument, such as a pianola or æolian, is not a piratical copy of the original music.[1491] It is equally an infringement to make copies of a copyright work for a private distribution as it is to make them for sale.[1492] Strictly, even a single copy made for private use would be an infringement. =Copying may be Indirect.=--A piratical taking need not necessarily be made direct from an authorised copy of the work alleged to be infringed. It may be taken from a derivative work, for instance, a painting may be infringed by copying an engraving made from it;[1493] or it may be taken from another unauthorised work. It would seem that it is not considered an infringement of copyright to publish and sell copies taken from the work before it was copyrighted, even although published and sold after it was copyrighted.[1494] It might be a breach of contract or common law right. =The Intention need not be Bad.=--There is no necessity for the plaintiff in an action for infringement to show either that the defendant when he took the matter knew that it was protected by copyright, or that he believed the use which he was making of the plaintiff's work was an unfair one.[1495] The defendant may have been equally ignorant of fact and law, and yet he will be responsible for the result of his actions. Conversely, if in fact the defendant has not made an unfair use of the plaintiff's copyright work, it is immaterial to show either that he thought he was infringing the plaintiff's copyright or that he intended to carry his work further and actually to infringe the plaintiff's rights.[1496] The intention of the defendant, however, may be material as evidence in a doubtful case.[1497] =Proof of Copying.=--The onus of proving an infringement is on the party making the charge.[1498] Mere similarity is not sufficient; he must show that the work charged as a piracy was taken from his copyright work. The strongest evidence is usually in the coincidence of errors; but a few solitary instances are not conclusive. In a question between the authors of two rival law works,[1499] it was held that the duplication of a few errors in citations was not sufficient evidence of piracy where there was obviously a great deal of further work and labour expended in the preparation of the alleged infringing work. In a question of an alleged infringing digest,[1500] it was held that the mere verbal identity of the summary of one case where a large number of cases had been digested was not sufficient proof. =No Monopoly in Subject-Matter.=--The right of copyright is an exclusive right of reproducing the whole or any part of an original literary or artistic work. It differs from a right of patent in that it does not prohibit another from producing and reproducing a work identically the same as the protected work, provided that he does so by going to the common sources of information and not by copying the protected work. Copyright creates no monopoly in the subject-matter. One man may compile tables of shipping and railway statistics; another may, without infringing the former's copyright, collect the same material and work it up for himself, producing, if accurately done and on the same principle, a very similar result.[1501] In the same way arithmetics,[1502] translations,[1503] school grammars,[1504] maps of a particular country,[1505] biographies,[1506] lithographs,[1507] law books,[1508] and other works[1509] do not entitle their author to say to a subsequent worker in the same field that as he was there first he has a right to exclude others from competition. In one case[1510] it was attempted to set up a monopoly in the biography of President Garfield, on the ground that the President had selected a particular person for the work. The contention was rejected by the Court. Probably the only case in which an argument in favour of monopoly in a certain subject-matter has been sustained is that of _Thomas_ v. _Lennox_.[1511] The subject of the action was Gounod's Oratorio _The Redemption_. A pianoforte arrangement had been published without acquiring copyright, but the orchestral score had never been published. The defendants procured a composer to compose an orchestral score from the pianoforte arrangement. This they publicly performed. In an action for infringement of the common law right in the plaintiff's unpublished orchestral score, the Court, in granting an injunction, said: "In this respect an opera is more like a patented invention than a common book; he who shall obtain similar results, better or worse, by similar means, though the opportunity is furnished by an unprotected book, should be held to infringe the rights of the composer." It is almost certain that this is bad law;[1512] it is contrary to the whole principle of copyright, and there is no substantial reason why an exception should be made in favour of a musical adaptation and not in that of a map or any other literary or musical work. =Taking a Substantial Part.=--In _Lawrence_ v. _Dana_, Clifford, J., said: "Copying is not confined to literal repetition, but includes also the various modes in which the matter of any publication may be adopted, imitated, or transferred, with more or less colourable alterations to disguise the source from which the material was derived; nor is it necessary that the whole, or even the larger portion of the work, should be taken in order to constitute an invasion of copyright."[1513] In _Folsom_ v. _Marsh_, Story, J., said: "If so much is taken that the value of the original is sensibly diminished, or the labours of the original author are substantially, to an injurious extent, appropriated by another, that is sufficient in point of law to constitute a piracy _pro tanto_. The entirety of the copyright is the property of the author, and it is no defence that another person has appropriated a part and not the whole of any property."[1514] To constitute an infringement there must be a taking of a material part of the original matter from another's work.[1515] To determine what is a material part is often a question of extreme difficulty and nicety. It depends on the quantity and quality of the matter taken, the object with which it is taken, the relation of the works to one another, the proportion of the matter taken to the complete works, but more particularly to the work of the borrower, the extent to which the work borrowed from is injured, and the extent to which the borrower makes profit from the introduction of the borrowed matter.[1516] In the case of _Morrison_ v. _Pettibone_,[1517] a district judge held that the taking of the mere outline of a copyright photograph was not a copying within the meaning of the statutes. In this case it had been intended by the defendant to make an entire reproduction of the photograph by the process of lithography. The stones were all in actual readiness, but only one had been used, giving the initial colour and exterior lines of the intended lithograph. In one case where a few references had been taken by the author of one law book from another, a preliminary injunction was refused on the ground of small amount.[1518] The alleged infringement of a copyright photograph need not, however, be substantially identical in order to ensure conviction; it is sufficient if a substantial portion of the main design, distinctive ideas, or characteristic features are taken.[1519] Taking the boundaries of townships from a copyright map has been held to be an infringement.[1520] The taking of a single scene from the drama of another may be an infringement.[1521] It is no answer to an action for infringement to say that the defendant's book in no way rivals or competes with the plaintiff's work.[1522] That is merely a question of damages. =Fair Use.=--Although a man is not permitted to take the whole or part of another's work in the compilation of his own, he is entitled to make of that other's work what is known as a "fair use," for the purpose of a new work. One may use another's book as a guide to authorities;[1523] for supplying suggestions as to treatment of a subject;[1524] and for the purpose of checking the accuracy[1525] of a completed work. One may use it as a storehouse of information; but in a rival work it will be an infringement to take any of the facts as arranged, or to take any of the language of the other's book, except for the purposes of criticism. Shipman, J., says in _Banks_ v. _M'Divitt_:[1526] "I do not understand that the rule prohibits an examination of previous works by the compiler before he has finished his own book, or the mere obtaining of ideas from such previous works. "It may be laid down as the clear result of the authorities in cases of this nature that the true test of piracy or not is to ascertain whether the defendant has in fact used the plan, arrangements, and illustrations of the plaintiff as the model of his own book with colourable alterations and variations only to disguise the use thereof; or whether his work is the result of his own labour, skill, and use of common materials and common sources of knowledge open to all men, and the resemblances are either accidental or arising from the nature of the subject."[1527] A dramatist must not take the plot, the characters, the scenes, or situations from the drama of another.[1528] A musician must not take his melody from that of another composer.[1529] The compiler of a digest must not borrow verbatim from the headnotes in the reports.[1530] The compiler of a directory must discover and make his own selection of the matter to be comprised in it.[1531] The designer of a map must not take the position of his towns and boundaries from a copyright map.[1532] The compiler of a dictionary must not take his definitions from another's copyright dictionary.[1533] The writer of a law book must not take his citations and references from the work of another.[1534] It is no answer to a charge of infringement for the defendant to say he could have produced the same result with a little extra trouble. He is not thereby entitled to appropriate the plaintiff's labours.[1535] A man may take ideas from the work of another and put his own material into a similar form.[1536] If one man writes a book on physiognomy on a new system, another may adopt his system and from his own research write a similar book. So the copyrighting of tables showing the standing and credit of the citizens of a state does not prevent another from compiling similar tables.[1537] The sketch of a detective which was said to convey an original idea was held not to have been infringed by another drawing carrying out the same idea but differently executed.[1538] There is no copyright in a method of advertising,[1539] so that if a tradesman issues a circular describing a particular method of obtaining goods by collecting discount coupons, although another tradesman may not copy his circular he may adopt the same system and issue a catalogue of his own, describing the system in his own words.[1540] There is no infringement of a drama in adopting from it a mechanical contrivance, such as a tank filled with water to represent a river on the stage.[1541] In the case of _Bullinger_ v. _MacKay_[1542] it is suggested by Benedict, J., in his judgment that there might be copyright in a novel system of arranging matter in a statistical work. It is submitted that this is wrong, and that even if the arrangement was an original one there would be no infringement in taking the method of arrangement and applying it independently. =Improvement no Excuse.=--It is no answer to an action for infringement for the defendant to say that he has made a good work out of a bad one, and so benefited the literary or artistic world.[1543] Even although I correct errors and make necessary additions so as to create from a worthless a useful book, I am not entitled so to deal with another author's work without his permission. Good or bad, an author is entitled to do what he likes with his own work and to prevent others making an unfair use of his labours.[1544] =Different Object.=--When a subsequent book is written with a different object from a previous publication it may be legitimate to take considerable extracts from the earlier work. To what extent this will be permitted must depend upon the relative value of the matter taken, and the purpose for which it is taken.[1545] It is not an absolute answer to an action for infringement to say that the matter was taken for an entirely different purpose from that for which it was used in the original work. If the taking in any way supersedes the uses to which the matter taken might have been put by its original author there is an infringement.[1546] Thus where the main design of a photograph was reproduced on stamped leather,[1547] and where the author of a life of Garfield for the young borrowed largely from a biography of Garfield written for political campaigns,[1548] there was held to be infringement. It is the nature and value of the extracts more than their length or number that must determine whether it was legitimate to take them or not. In _Gray_ v. _Russell_,[1549] Story, J., says: "_Non numerantur, ponderantur_; the quintessence of a work may be piratically extracted so as to leave a mere _caput mortuum_, by a selection of all the important passages in a comparatively moderate space." =Extract for Review.=--Extracts may be taken from a work for the purpose of reviewing or criticising it, or writing a treatise in answer. "Reviewers may make extracts sufficient to show the merits or demerits of the work, but they cannot so exercise the privilege as to supersede the original work. Sufficient may be taken to give a correct view of the whole; but the privilege of making extracts is limited to those objects, and cannot be exercised to such an extent that the review shall become a substitute for the book reviewed."[1550] A reviewer must not tear the heart out of a book. =Abridgments.=--What is called a _bonâ fide_ abridgment is held to be a fair use of another's work.[1551] The opinions of the judges in the older cases were derived from the English case law on the subject. I think it is doubtful whether the English abridgment cases would now be sustained, as the principle involved is clearly against all the more recent doctrines as to infringement. In America, however, the judges, although disagreeing more or less with the case law as to abridgment, have felt themselves bound by precedent to hold that a fair abridgment is not a piracy. In _Story_ v. _Holcombe_,[1552] M'Lean, J., said: "If this was an open question, I should feel little difficulty in determining it. An abridgment should contain an epitome of the work abridged--the principles in the condensed form of an original book. Now it would be difficult to maintain that such a work did not affect the sale of the book abridged. The argument that the abridgment is suited to a different class of readers by its cheapness, and will be purchased on that account by persons unable and unwilling to purchase the work at large, is not satisfactory. This to some extent may be true, but are there not many who are able to buy the original work who will be satisfied with the abridgment.... The reasoning on which the right to abridge is founded therefore seems to me to be false in fact. It does to some extent in all cases, and not unfrequently to a great extent, impair the rights of the author--a right secured by law.... But a contrary doctrine has been long established in England under the Statute of Anne, which in this respect is similar to our own Statute, and in this country the same doctrine has prevailed. I am therefore bound by precedent, and I yield to it in this instance more as a principle of law than a rule of reason or justice."[1553] In _Lawrence_ v. _Dana_,[1554] Clifford, J., took a similar view: "Whatever might be thought, if the question was an open one, it is too late to agitate it at the present time, as the rule is settled that the publication of an unauthorised but _bonâ fide_ abridgment or digest of a published literary copyright, in a certain class of cases at least, is no infringement of the original." The learned judge then lays down some restriction on the free right to abridge: "Unless it be denied that a legal copyright secures to the author 'the sole right and liberty of printing, reprinting, publishing, and binding the book' copyrighted, it cannot be held that an abridgment or digest of any kind of the contents of the copyrighted publication, which is of a character to supersede the original work, is not an infringement of the franchise secured by the copyright. What constitutes a fair and _bonâ fide_ abridgment in the sense of law is, or may be, under particular circumstances, one of the most difficult questions which can well arise for judicial consideration; but it is well settled that a mere selection or different arrangement of parts of the original work into a smaller compass will not be held to be such an abridgment."[1555] I think that to-day the Courts in America as well as England would, if the question of abridgments were to come before them, cut down the right of the abridger very considerably. I could not advise any one that he was safe in making an abridgment of another's work; certainly he must avoid making any extracts from the work abridged; the use of any of the author's language literally or colourably taken would undoubtedly be piratical. =Translations.=--Authors and their assigns have the exclusive right of translating their works into any language.[1556] Before 1891 the translating right had to be expressly reserved by the author, presumably by notice printed on every published copy of his work.[1557] No reservation is now required. Before 1870 there was no exclusive right of translation at all.[1558] The same remarks apply to the right of dramatization. The right of dramatization probably does not prevent a stranger from making a dramatic version for his own private use; but it would prohibit any public use of such a version whether by publication in print or representation on the stage. =Dramatic Performing Right.=--In the case of dramatic works the author and his assigns have the sole right of performing the same in public.[1559] This right was first given by Act of Congress in 1856.[1560] In _Daly_ v. _Palmer_,[1561] Blatchford, J., defines the scope of the Act: "A composition, in the sense in which that word is used in the Act of 1856, is a written or literary work invented or set in order. A dramatic composition is such a work in which the narrative is not related, but is represented by dialogue and action. When a dramatic composition is represented in dialogue and action by persons who represent it as real by performing or going through with the various parts or characters assigned to them severally, the composition is acted, performed, or represented; and if the representation is in public, it is a public representation. To act in the sense of the Statute is to represent as real by countenance, voice, or gesture that which is not real. A character in a play who goes through with a series of events on the stage without speaking, if such be his part in the play, is none the less an actor in it than one who, in addition to motions and gestures, uses his voice. A pantomime is a species of theatrical entertainment, in which the whole action is represented by gesticulation without the use of words. A written work consisting wholly of directions, set in order for conveying the ideas of the author on a stage or public place by means of characters who represent the narrative wholly by action is as much a dramatic composition designed or suited for public representation as if language or dialogue were used in it to convey some of the ideas."[1562] It will be an infringement of performing right to take a single scene from another's drama.[1563] It is more important to consider what is a dramatic representation than what is a dramatic composition. If a composition not primarily intended for representation is publicly represented without permission, even if it was not a "dramatic composition," the person representing will be liable for having dramatized it if the representation is dramatic. There can be a dramatic representation by one actor only, and many music hall songs are undoubtedly dramatically represented. =Musical Rights.=--Before 1897 there was no exclusive performing right in musical compositions as such. It might have been protected from performance if it could be shown to be part of a dramatic piece.[1564] By the Act of January 6, 1897, performing right in musical compositions was first created. The protection is now substantially the same as in the case of dramatic pieces. SECTION II.--PROHIBITED ACTS, AND REMEDIES. It is an infringement, subject to the remedies stated below, to do any of the following acts in respect of a copyright work. In the case of: I. _Books_:[1565] without the consent of the proprietor in writing signed in the presence of two witnesses. 1. To print or publish. 2. To dramatize or translate. 3. To import. 4. Knowingly to sell or expose for sale copies unlawfully made or imported. The owner's remedies are: 1. Forfeiture of copies. 2. Damages. 3. Injunction. 4. Account of profits. II. _Maps,_[1566] _charts, dramatic or musical compositions, prints, art engravings, photographs, chromos, paintings, drawings, statues, statuary models and designs for the fine arts_: without the consent of the proprietor in writing signed in the presence of two witnesses. 1. To engrave, etch, work, or copy. 2. To print or publish. 3. To dramatize or translate. 4. To import. 5. Knowingly to sell or expose for sale copies unlawfully made or exported. The owner's remedies are: 1. Forfeiture of plates and sheets. 2. Penalty of $1 for every sheet found in defendant's possession. 3. Penalty of $10 for every copy of a painting, statue, or statuary. 4. In the case of a photograph made from any object not a work of fine art, the sum to be recovered shall not be less than $100 nor more than $5000. 5. In the case of a work of the fine arts or photograph thereof, the sum to be recovered shall not be less that $250 nor more than $10,000. 6. Injunction. One-half of the penalties under the Act of March 2, 1895, go to the proprietor of the copyright and the other half to the use of the United States.[1567] A series of sheets containing tabulated information has been held not to be entitled to protection as charts but only as a book.[1568] An engraving or cut contained in a book or volume will not be protected as a cut unless it is separately copyrighted as such.[1569] III. _Dramatic or musical compositions_:[1570] without the consent of the proprietor. 1. Publicly to perform or represent. The owner's remedies are: 1. Damages not less than $100 for the first, and not less than $50 for every subsequent performance. 2. If done wilfully and for profit it is a misdemeanour, and the offender may on conviction be imprisoned for a period not exceeding a year. 3. Injunction. Damages cannot be recovered in a suit in equity, the remedy being limited to an injunction and profits.[1571] =Account of Profits.=--The right to an account of profits is an equitable remedy, and incidental to the statutory right, although not expressly conferred by the statute.[1572] If a work is in part piratical and in part innocent, then if the piratical part can be distinctly separated it will be separately condemned and the profits apportioned.[1573] If the piratical matter is so mixed up with the rest that it cannot be distinctly separated, the profits awarded will be the whole profits on the sale of the book.[1574] When the defendant has sold a book twice, having bought it back second-hand, the profits include the profits on both sales.[1575] The cost of producing copies which the defendant did not sell cannot be estimated in reduction of profits.[1576] There will be no decree for profits unless there are means of determining in a reliable manner what sum the defendant received for books.[1577] =Damages.=--Damages may be awarded in lieu of or as supplementary to an account of profits. The measure of damages is the diminution in the plaintiff's sales due to the publication of the defendant's book. The minimum statutory damages given for infringement of performing rights are remedial but not penal, and the strict rules of evidence in criminal cases do not apply.[1578] The penalties given for infringement of maps, &c., are of a penal nature.[1579] In respect of maps, musical and dramatic compositions, works of art, &c., there is no right of action to recover damages merely as such; the remedy is limited to the prescribed forfeiture and penalties.[1580] =Penalties.=--Penalty for "each sheet" does not mean for each copy. Where a large number of lithograph copies of a photograph were printed on one sheet it was held that only one penalty was recoverable for the whole sheet.[1581] Cutting up or binding the sheets does not increase nor diminish the number of the sheets.[1582] Only those sheets which are "found in the defendant's possession" are penalised.[1583] They must be alleged and proved to have been actually discovered in the defendant's possession before the bringing of the action,[1584] and not merely be found by the jury to have been in his possession. They need not necessarily have been found by the plaintiff or any one acting on his behalf.[1585] An employee who holds possession for his master is not liable in penalties.[1586] Penalties cannot be recovered in a suit in equity.[1587] =Forfeiture.=[1588]--It seems doubtful whether the forfeiture of copies of a book under section 4964 of the Revised Statutes can be enforced unless the whole book is copied. It was held under the Act of 1831 that they could not,[1589] but I doubt if this is sound. The statutes give no right of action to the proprietor of a map, photograph, dramatic or musical work, artistic work, &c., to recover from an infringer the value of copies which have passed from his possession.[1590] =Injunction.=[1591]--A preliminary injunction is granted, but only in a plain case,[1592] to stay further damage. The Court will always consider which party is likely to suffer most from the erroneous granting or refusing of an injunction. In doubtful cases an injunction will not be granted simpliciter, but the defendants may be required to keep an account and give a bond to answer damages.[1593] An injunction will go at the hearing without reference to the question of special damage.[1594] =Who is Liable.=--The sale of a play with a view to unauthorised representation makes the seller a joint infringer of the performing right.[1595] The manager of a company is not personally liable for an infringement made by the company without his knowledge and against his express instructions.[1596] A company is liable in penalties as well as an individual.[1597] The printer and publisher of a piratical book are liable equally with the writer.[1598] One who procures an infringement to be made is liable.[1599] An employer whose servants or agents infringe the copyright of others is undoubtedly liable in damages for the wrongful acts of his servants done in the course of their employment. Thus one who compiles a directory is responsible for the piratical acts of his canvassers, even although they acted contrary to his express instructions.[1600] But it has been held that a man is not liable for forfeitures or penalties on account of acts done without his knowledge or consent by his servants or agents in his employment. When an agent had full authority to advertise his principal's teas as he thought fit and pirated some election statistics in doing so, it was held that his principal could not be liable in forfeitures or penalties for acts done in his absence and without his authority or knowledge.[1601] In another case it was held that the proprietor of a newspaper was not responsible in forfeiture or penalties for a piratical copy of a map which appeared in his newspaper during his absence from the management and control.[1602] It will be observed that if these cases are sound the proprietor of the copyright in a map, &c., or artistic work has no remedy in either penalties or damages against the proprietor of an infringing publication unless he can show that the piratical matter was inserted with his knowledge or consent. This follows from the above decisions that the specific penalties constitute the only remedy by way of damages which the proprietor of these works can recover.[1603] =Limitation of Action.=--No action can be maintained in any case of forfeiture or penalty under the copyright laws unless the same is commenced within two years after the cause of action has arisen.[1604] This includes all claims, not only those for forfeiture and penalty so-called, but for damages under Revised Statutes, sec. 4964, in respect of books.[1605] =Acquiescence.=--Mere delay on the part of the plaintiff in pursuing his remedy is no defence to an action for infringement.[1606] A preliminary injunction may be refused on the ground of delay. The remedy on the final hearing will not be barred by laches or acquiescence, unless it is tantamount to fraud for the plaintiff to insist on his legal rights.[1607] A right may perhaps be abandoned by allowing numerous members of the public to exercise it without licence or objection.[1608] =Pleading.=--In pleading, the plaintiff does not have to allege the facts which make him proprietor.[1609] If it is disputed, it is for the defendant to allege and prove facts to the contrary.[1610] The plaintiff, however, must allege specifically a compliance with the statutory formalities, although he need not allege that publication took place within a reasonable time after the deposit of the title.[1611] In all actions arising under the laws respecting copyrights, the defendant may plead the general issue, and give the special matter in evidence.[1612] =Penalties for affixing False Notice.=--Every person who shall insert or impress a copyright notice, "or words of the same import, in or upon any book, map, chart, dramatic or musical composition, print, cut, engraving or photograph or other article, whether such article be subject to copyright or otherwise, for which he has not obtained a copyright, or shall knowingly issue or sell any article bearing a notice of United States copyright which has not been copyrighted in this country; or shall import any book, photograph, chromo or lithograph, or other article bearing such notice of copyright, or words of the same purport which is not copyrighted in this country, shall be liable to a penalty of $100, recoverable one-half for the person who shall sue for such penalty, and one-half to the use of the United States."[1613] This section was amended in 1891 and again in 1897. It now reads as above. Before 1897 the penalty was not recoverable from one who sold copies, knowing them to contain a false notice, unless he had made the book or caused the notice to be inserted.[1614] Before 1897 also there could be no conviction unless the article on which the false notice was impressed was a copyrightable article.[1615] The penalty is not recoverable for each copy, but for each issue. Where chromos were struck off in large numbers for advertising purposes, each separate batch being printed with a different trade name for different customers, it was held that the penalty was recoverable on each batch.[1616] For a notice to incur the penalty as a false notice, it is not necessary that it should have been printed as directed by the Acts. It will be subject to the penalty even although printed in another part of the book.[1617] Rough prints of a picture made for the purpose of advertisement bore a false notice, and were held to have incurred the penalty.[1618] It is not unlawful to impress a notice of copyright on a rough copy of a copyright picture, even although such copy is not separately copyrighted.[1619] Liability will not attach unless the notice contains the essentials of a sufficient copyright notice, viz. "name," "claim of exclusive right," and "date when obtained." Thus where the date was omitted no penalties were recovered.[1620] Any one who causes a false notice to be impressed is equally liable with the person who himself impresses it.[1621] =Importing Books Printed Outside the United States.=--If copyright has been secured in the United States, importation of any book, chromo, lithograph, or photograph, or any plates of the same, not made from type set, negatives, or drawings on stone made within the limits of the United States,[1622] is prohibited, either with or without the consent of the owner of the copyright. Except-- 1. Works printed or manufactured more than twenty years at the date of importation.[1623] 2. Books and pamphlets printed exclusively in languages other than English.[1624] 3. Books and music in raised print used exclusively by the blind.[1625] 4. Works imported by authority for the use of the U. S. or the Library of Congress.[1626] 5. Books, maps, lithographic prints and charts specially imported, not more than two copies in any one invoice, in good faith, for the use of societies, schools, colleges, &c.[1627] 6. Books imported for use and not for sale subject to payment of duty, and not more than two copies at any one time.[1628] 7. Newspapers and magazines, if they contain no infringement of U. S. copyright.[1629] CHAPTER V COMMON LAW RIGHTS SECTION I.--PUBLISHED WORK. After a work has been published it has no protection in the nature of copyright except under an Act of Congress.[1630] If either from the nature of the work, or from the want of conforming with the formalities of the Act, there is no statutory protection, then there can be no exclusive right of copying the work. After a drama or musical piece has been published as a book, not only the copyright in it but also the performing right depends entirely on statutory protection.[1631] Performance on the stage not being a publication, affects neither the right of copy nor the performing right. Although there is no right of copy in a published work except under statute, there are certain common-law rights based on fraud or implied contract which are incident thereto, and which neither depend on nor are affected by statutory protection. =Passing off.=--One man is not entitled so to produce his book as to lead the public to believe it is the work of another.[1632] The same or a similar title is the most usual method of passing off. One cannot monopolise a purely descriptive title such as "Latin Grammar" or "Guide to the Alps;" but it was held a passing off to take the title, "The _Fram_ Expedition--Nansen in the Frozen World;"[1633] so the title "Social Register" to a select list of residents in a certain district was infringed by a similar list bearing the title "Howard's Social Register."[1634] It is immaterial in a question of passing off that the book itself is unprotected from copying. Thus an English magazine called "Chatterbox" was largely sold in the United States, but was not copyright. Although it would have been quite legal to have copied the English magazine and sold such copies under its own title, it was not permissible to publish another magazine under the title of "Chatterbox."[1635] In another case it was held that one might not adopt the title of another's operetta for his own, even although the songs and vocal scores of the operetta had been published under the title without securing copyright.[1636] It is not a passing off to reprint another man's book and sell it in his own name, and if the copyright has expired he has no redress.[1637] He has no property in his own name as such. After the copyright had expired in "Webster's Dictionary," Webster's assignee was held to have no ground for restraining any one from reprinting and selling "Webster's Dictionary" under that title.[1638] Even where the name was a pseudonym, "Mark Twain," the author was not entitled to prevent others from printing and selling some non-copyright work of his as "Sketches by Mark Twain."[1639] A man may prevent the publication under his name of a book of which he is not the author or which has been mutilated without his authority.[1640] Henry Drummond, the evangelist, delivered a series of lectures at Boston, Massachusetts, on "The Evolution of Man." Eight out of twelve lectures were partially printed with the author's consent in the British Weekly, and no copyright was secured in America. It was held that Professor Drummond was entitled to restrain a reprint of these published lectures reproduced with material alterations, and represented as being the complete series of lectures.[1641] An author who has parted with or lost his copyright has no right to regulate the manner in which his work may be published, provided that there is no misrepresentation causing injury to the author's name.[1642] In one case,[1643] however, the defendants were restrained from a similar proceeding on the ground of unfair trading. They bought second-hand school books published by the plaintiff, and rebound them so as to have the exact appearance of the plaintiff's books when new. It was held that they were entitled to do this without infringing any right of the plaintiff in their copyright book; but it was also held that it was not fair trading to sell the rebound books without sufficient notice that they were rebound. If there have been several editions of a book, the copyright in the first of which only has expired, the author may restrain a publisher from reprinting and publishing the first edition so as to lead the public to believe that it is a later edition still copyright.[1644] The owner of a series of novels, published in two editions, cannot prevent a third person buying a large quantity of the sixth edition and binding them so as to somewhat resemble the dearer edition.[1645] When the "Encyclopædia Britannica" was published, only a few of the articles were copyright in America. It was held that it was permissible for an American publisher to reprint the whole work so far as not copyright, and to substitute new articles for the copyright articles, and so long as there was no attempt to defraud the public to publish it as the "Encyclopædia Britannica" so revised.[1646] SECTION II.--UNPUBLISHED WORK. Unpublished work is protected from interference by the common law of England, which was brought to and adopted by the United States.[1647] When the common law is asserted one must look to the law of the State in which the controversy originated,[1648] since although the common law of England was adopted, it was adopted only so far as its principles were suited to the conditions of the colonies at the time, and some States have incorporated with their laws more and some less. The rights at common law in unpublished work were not abrogated by Acts of Congress establishing copyright in published work. The author of an unfinished work has the right at common law to prevent any one from making any unauthorised use of his work.[1649] The author may without publishing make a communication of the contents of his work to a limited number,[1650] and he may prescribe to them what conditions he pleases.[1651] A play or song is not published by performance nor a lecture by delivery.[1652] A work of art is probably published by public exhibition,[1653] but not by a private view. A spectator of an unpublished play is not entitled to reproduce substantial parts of it even from memory.[1654] Similarly with a musical work or lecture. An alien author has an equal right with a citizen of the United States to sue at common law for interference with his manuscript.[1655] A statutory remedy is given for the unauthorised printing or publishing of any manuscript. The offender is liable "for all damages occasioned by such injury."[1656] This statutory remedy neither destroys nor limits the common law right.[1657] No new right is secured.[1658] The practical result is that an alternative remedy in the Federal tribunals is provided where the parties are subjects of the same State. The plaintiff may proceed either in the State Court or the Federal Court.[1659] Manuscript under this section is limited to the meaning of a written document. It does not include a picture.[1660] APPENDIX BRITISH STATUTES THE ENGRAVING COPYRIGHT ACT, 1734. 8 GEO. II. c. 13. An Act for the Encouragement of the Arts of Designing, Engraving, and Etching historical and other Prints, by vesting the Properties thereof in the Inventors and Engravers, during the Time therein mentioned. [Sidenote: Preamble.] I. WHEREAS divers Persons have by their own Genius, Industry, Pains, and Expense, invented and engraved, or worked in Mezzotinto or Chiaro Oscuro, Sets of historical and other Prints, in hopes to have reaped the sole Benefit of their Labours: And whereas Printsellers, and other Persons, have of late, without the Consent of the Inventors, Designers, and Proprietors of such Prints, frequently taken the Liberty of copying, engraving, and publishing, or causing to be copied, engraved, and published, base Copies of such Works, Designs, and Prints, to the very great Prejudice and Detriment of the Inventors, Designers, and Proprietors thereof: [Sidenote: After 24th June, 1735, the property of historical and other prints vested in the Inventor for 14 Years.] [Sidenote: Proprietor's Name to be affixed to each Print.] [Sidenote: Penalty on Printsellers or others pirating same.] For Remedy thereof, and for preventing such Practices for the future, be it enacted, That from and after the Twenty-fourth Day of June, which shall be in the Year of our Lord One thousand seven hundred and thirty-five, every Person who shall invent and design, engrave, etch, or work in Mezzotinto or Chiaro Oscuro, or, from his own Works and Invention, shall cause to be designed and engraved, etched, or worked in Mezzotinto or Chiaro Oscuro, any historical or other Print or Prints,[1661] shall have the sole Right and Liberty of printing and reprinting the same for the Term of Fourteen Years, to commence from the Day of the first Publishing thereof, which shall be truly engraved with the Name of the Proprietor on each Plate, and printed on every such Print or Prints; and that if any Printseller, or other Person whatsoever, from and after the said Twenty-fourth Day of June, One thousand seven hundred and thirty-five, within the Time limited by this Act, shall engrave, etch, or work, as aforesaid, or in any other Manner copy and sell, or cause to be engraved, etched, or copied and sold, in the Whole or in Part, by varying, adding to, or diminishing from the main Design, or shall print, reprint, or import for Sale, or cause to be printed, reprinted, or imported for Sale, any such Print or Prints, or any Parts thereof, without the Consent of the Proprietor or Proprietors thereof first had and obtained in Writing, signed by him or them respectively, in the Presence of Two or more credible Witnesses, or knowing the same to be so printed or reprinted without the Consent of the Proprietor or Proprietors, shall publish, sell, or expose to Sale, or otherwise, or in any other Manner dispose of, or cause to be published, sold, or exposed to Sale, or otherwise, or in any other Manner disposed of, any such Print or Prints without such Consent first had and obtained as aforesaid, then such Offender or Offenders shall forfeit the Plate or Plates on which such Print or Prints are or shall be copied, and all and every Sheet or Sheets (being part of or whereon such Print or Prints are or shall be so copied or printed) to the Proprietor or Proprietors of such original Print or Prints, who shall forthwith destroy and damask the same; and further, that every such Offender or Offenders shall forfeit Five Shillings for every Print which shall be found in his, her, or their Custody, either printed or published, and exposed to Sale, or otherwise disposed of contrary to the true Intent and Meaning of this Act, the One Moiety thereof to the King's most Excellent Majesty, His Heirs and Successors, and the other Moiety thereof to any Person or Persons that shall sue for the same, to be recovered in any of His Majesty's Courts of Record at Westminster, by Action of Debt, Bill, Plaint, or Information, in which no Wager of Law, Essoign, Privilege, or Protection, or more than One Imparlance, shall be allowed: [Sidenote: Not to extend to Purchasers of Plates from the original Proprietors.] II. Provided nevertheless, That it shall and may be lawful for any Person or Persons, who shall hereafter purchase any Plate or Plates for printing, from the Original Proprietors thereof, to print and reprint from the said Plates, without incurring any of the Penalties in this Act mentioned. [Sidenote: Limitation of Actions.] [Sidenote: General Issue.] III. _And if any Action or Suit shall be commenced or brought against any Person or Persons whatsoever, for doing or causing to be done any Thing in pursuance of this Act, the same shall be brought within the Space of Three Months after so doing; and the Defendant and Defendants, in such Action or Suit, shall or may plead the General Issue, and give the special Matter in Evidence; and if upon such Action or Suit a Verdict shall be given for the Defendant or Defendants, or if the Plaintiff or Plaintiffs become nonsuited, or discontinue his, her, or their Action or Actions, then the Defendant or Defendants shall have and recover full Costs, for the Recovery whereof he shall have the same Remedy, as any other Defendant or Defendants in any other Case hath or have by Law:_[1662] IV. Provided always, That if any Action or Suit shall be commenced or brought against any Person or Persons, for any Offence committed against this Act, the same shall be brought within the Space of Three Months after the Discovery of every such Offence, and not afterwards; any Thing in this Act contained to the contrary notwithstanding. [Sidenote: Clause relating to J. Pine.] V. _And whereas John Pine of London, Engraver, doth propose to engrave and publish a Set of Prints copied from several Pieces of Tapestry in the House of Lords, and His Majesty's Wardrobe, and other Drawings relating to the Spanish Invasion, in the Year of our Lord One thousand five hundred and eighty-eight; be it further enacted by the Authority aforesaid, That the said John Pine shall be entitled to the Benefit of this Act, to all Intents and Purposes whatsoever, in the same Manner as if the said John Pine had been the Inventor and Designer of the said Prints._[1663] [Sidenote: Public Act.] VI. _And be it further enacted, by the Authority aforesaid, That this Act shall be deemed, adjudged, and taken to be a Public Act, and be judicially taken notice of as such by all Judges, Justices, and other Persons whatsoever, without specially pleading the same_.[1664] THE ENGRAVING COPYRIGHT ACT, 1766. 7 GEO. III. C. 38. [Sidenote: Preamble reciting Act 8, G 2.] An Act to amend and render more effectual an Act made in the Eighth Year of the Reign of King George the Second for Encouragement of the Arts of Designing, Engraving, and Etching Historical and other Preamble Prints; _and for vesting in, and securing to, Jane Hogarth, Widow, the Property in certain Prints_.[1665] [Sidenote: The original Inventors, Designers, or Engravers, &c., of Historical and other Prints, and such who shall cause Prints to be done from Works, &c., of their own Invention, and also such as shall engrave, &c., any Print taken from any Picture, Drawing, Model, or Sculpture, are entitled to the Benefit and Protection of the recited and present Act; and those who shall engrave or import for Sale Copies of such Prints are liable to Penalties.] I. WHEREAS an Act of Parliament passed in the Eighth Year of the Reign of His late Majesty King George the Second, intituled An Act for the Encouragement of the Arts of Designing, Engraving, and Etching Historical and other Prints, by vesting the Properties thereof in the Inventors and Engravers, during the time therein mentioned, has been found ineffectual for the Purposes thereby intended: Be it enacted, That from and after the First Day of January One thousand seven hundred and sixty-seven, all and every Person and Persons who shall invent or design, engrave, etch, or work in Mezzotinto or Chiaro Oscuro, or, from his own Work, Design, or Invention, shall cause or procure to be designed, engraved, etched, or worked in Mezzotinto or Chiaro Oscuro, any Historical Print or Prints, or any Print or Prints of any Portrait, Conversation, Landscape, or Architecture, Map, Chart, or Plan, or any other Print or Prints whatsoever, shall have, and are hereby declared to have, the Benefit and Protection of the said Act, and this Act, under the Restrictions and Limitations hereinafter mentioned. II. And from and after the said First Day of January One thousand seven hundred and sixty-seven, all and every Person and Persons who shall engrave, etch, or work in Mezzotinto or Chiaro Oscuro, or cause to be engraved, etched, or worked, any Print taken from any Picture, Drawing, Model, or Sculpture, either ancient or modern, shall have, and are hereby declared to have, the Benefit and Protection of the said Act, and this Act, for the Term hereinafter mentioned, in like Manner as if such Print had been graved or drawn from the Original Design of such Graver, Etcher, or Draughtsman; and if any Person shall engrave, print and publish, or import for Sale, any Copy of any such Print, contrary to the true Intent and Meaning of this and the said former Act, every such Person shall be liable to the Penalties contained in the said Act, to be recovered as therein and hereinafter is mentioned. [Sidenote: The sole Right of printing and reprinting the late W. Hogarth's Prints,] [Sidenote: vested in his Widow and Executrix for the Term of 20 years.] [Sidenote: Penalty of copying, &c., of any of them, before the Expiration of the said Term; such Copies excepted as were made and exposed to Sale after the Term of 14 Years, for which the said Works were first licensed, &c.] III. _And whereas William Hogarth, late of the City of Westminster, Painter and Graver, did etch and engrave, and cause to be etched and engraved, several Prints from his own Invention and Design, the Property and sole Right of vending all such Prints being secured to him the said William Hogarth for the Term of Fourteen Years from their first Publication, by the said former Act of Parliament; which said Property, by his last Will, became vested in his Widow and Executrix: And whereas since the first Publication of several of the said Prints, the Term of Fourteen Years is expired, and several base Copies of the same have been since printed and published, whereby the Sale of the Originals has been considerably lessened, to the great Detriment of the said Widow and Executrix: And whereas since the Publication of others of the said Prints, the Term of Fourteen Years is now near expiring: Be it enacted by the Authority aforesaid, That Jane Hogarth, Widow and Executrix of the said William Hogarth, shall have the sole Right and Liberty of printing and reprinting all the said Prints, Etchings, and Engravings, of the Design and Invention of the said William Hogarth, for and during the Term of Twenty Years, to commence from the said First Day of January One thousand seven hundred and sixty-seven; and that all and every Person and Persons who shall at any Time hereafter, before the Expiration of the said Term of Twenty Years, engrave, etch, or work in Mezzotinto or Chiaro Oscuro, or otherwise copy, sell, or expose to Sale, or cause or procure to be etched, engraved, or worked in Mezzotinto or Chiaro Oscuro, any of the said Works of the said William Hogarth, shall be liable to the Penalties and Forfeitures contained in this and the said former Act of Parliament; to be recovered in like Manner as in and by this and the said former Act are given, directed, and appointed._[1666] IV. _Provided nevertheless, That the Proprietor or Proprietors of such of the Copies of the said William Hogarth's Works, which have been copied and printed, and exposed to Sale, after the Expiration of the Term of Fourteen Years from the Time of their first Publication by the said William Hogarth, and before the said First Day of January, shall not be liable or subject to any of the Penalties contained in this Act; anything hereinbefore contained to the contrary thereof in anywise notwithstanding._[1667] [Sidenote: Penalties may be sued for as by the recited Act is directed; and be recovered with full Costs; provided the Prosecution be commenced within 6 months after the Fact.] V. And all and every the Penalties and Penalty inflicted by the said Act, and extended, and meant to be extended, to the several Cases comprised in this Act, shall and may be sued for and recovered in like Manner, and under the like Restrictions and Limitations, as in and by the said Act is declared and appointed; and the Plaintiff or common Informer in every such Action (in case such Plaintiff or common Informer shall recover any of the Penalties incurred by this or the said former Act) shall recover the same, together with his full Costs of Suit. VI. Provided also, That the Party prosecuting shall commence his Prosecution within the Space of Six Calendar Months after the Offence committed. [Sidenote: The Right intended to be secured by this and the former Act, vested in the Proprietors for the Term of 28 Years from the first Publication.] [Sidenote: Limitation of Actions.] [Sidenote: General Issue.] [Sidenote: Full Costs.] VII. And the sole Right and Liberty of printing and reprinting intended to be secured and protected by the said former Act and this Act, shall be extended, continued, and be vested in the respective Proprietors, for the Space of Twenty-eight Years, to commence from the Day of the first Publishing of any of the Works respectively hereinbefore and in the said former Act mentioned. VIII. _And if any Action or Suit shall be commenced or brought against any Person or Persons whatsoever for doing, or causing to be done, anything in pursuance of this Act, the same shall be brought within the Space of Six Calendar Months after the Fact committed; and the Defendant or Defendants in any such Action or Suit shall or may plead the General Issue, and give the Special Matter in Evidence; and if, upon such Action or Suit, a Verdict shall be given for the Defendant or Defendants, or if the Plaintiff or Plaintiffs become nonsuited, or discontinue his, her, or their Action or Actions, then the Defendant or Defendants shall ham and recover full Costs; for the Recovery whereof he shall have the same Remedy as any other Defendant or Defendants, in any other Case, hath or have by Law._[1668] THE COPYRIGHT ACT, 1775.[1669] (UNIVERSITY COPYRIGHT), 15 GEO. III. C. 53. An Act for enabling the two Universities in England, the four Universities in Scotland, and the several Colleges of Eton, Westminster, and Winchester, to hold in Perpetuity their Copyright in Books, given or bequeathed to the said Universities and Colleges for the Advancement of useful Learning and other Purposes of Education: [Sidenote: Preamble] [Sidenote: Universities, &c., in England and Scotland to have for ever the sole Right of printing, &c., such Books as have been, or shall be, bequeathed to them, unless the same have been, or shall be given for a limited Time.] I. Whereas Authors have heretofore bequeathed or given, and may hereafter bequeath or give the Copies of Books composed by them to or in Trust for one of the two Universities in that Part of Great Britain called England, or to or in Trust for some of the Colleges or Houses of Learning within the same, or to or in trust for the four Universities in Scotland, or to or in trust for the several Colleges of Eton, Westminster, and Winchester,[1670] and in or by their several Wills or other instruments of Donation, have directed or may direct that the Profits arising from the printing and reprinting such Books shall be applied and appropriated as a Fund for the Advancement of Learning and other beneficial Purposes of Education within the said Universities and Colleges aforesaid: And whereas such useful Purposes will frequently be frustrated unless the sole printing and reprinting of such Books the Copies of which have been or shall be so bequeathed or given as aforesaid, be preserved and secured to the said Universities, Colleges, and Houses of Learning respectively in Perpetuity: Be it enacted, That the said Universities and Colleges respectively shall, at their respective Presses, have, for ever, the sole liberty of printing and reprinting all such Books, as shall at any time heretofore have been, or (having not been heretofore published[1671] or assigned) shall at any time hereafter be bequeathed, or otherwise given by the Author or Authors of the same respectively or the Representatives of such Author or Authors, to or in Trust for the said Universities or to or in Trust for any College or House of Learning within the same, or to or in Trust for the said four Universities in Scotland, or to or in Trust for the said Colleges of Eton, Westminster, and Winchester, or any of them, for the Purposes aforesaid, unless the same shall have been bequeathed or given, or shall after be bequeathed or given, for any Term of Years or other limited Term: any Law or Usage to the contrary hereof in anywise notwithstanding. [Sidenote: After 24th June, 1775, Persons printing or selling such Books shall forfeit the same, and also id. for every sheet;] [Sidenote: one Moiety to His Majesty, and the other to the Prosecutor.] II. And if any Bookseller, Printer, or other Person whatsoever, from and after June 24, 1775, shall print, reprint, or import, or cause to be printed, reprinted, or imported, any such Book or Books; or, knowing the same to be so printed or reprinted, shall sell, publish, or expose to Sale, or cause to be sold, published, or exposed to Sale, any such Book or Books; then such Offender or Offenders shall forfeit such Book or Books, and all and every Sheet or Sheets, being Part of such Book or Books, to the University, College, or House of Learning respectively, to whom the Copy of such Book or Books shall have been bequeathed or given as aforesaid, who shall forthwith damask and make waste Paper of them; and further, that every such Offender or Offenders shall forfeit One Penny for every Sheet which shall be found in his, her, or their Custody, either printed or printing, published or exposed to Sale, contrary to the true Intent and Meaning of this Act; the one Moiety thereof to the King's Most Excellent Majesty, His Heirs and Successors, and the other Moiety thereof to any Person or Persons who shall sue for the same; to be recovered in any of His Majesty's Courts of Record at Westminster, or in the Court of Session in Scotland, by Action of Debt, Bill, Plaint, or Information, in which no Wager of Law, Essoign, Privilege, or Protection, or more than One Imparlance, shall be allowed. [Sidenote: Nothing in this Act to grant any exclusive Right longer than such Books are printed at the presses of the Universities. Universities may sell Copy Rights in like manner as any Author.] III. Provided nevertheless, That nothing in this Act shall extend to grant any exclusive Right otherwise than so long as the Books or Copies belonging to the said Universities or Colleges are printed only at their own Printing Presses within the said Universities or Colleges respectively, and for their sole Benefit and Advantage; and that if any University or College shall delegate, grant, lease, or sell their Copy Rights, or exclusive Rights of printing the Books hereby granted, or any Part thereof, or shall allow, permit, or authorise any Person or Persons, or Bodies Corporate, to print or reprint the same, that then the Privileges hereby granted are to become void and of no Effect, in the same Manner as if this Act had not been made[1672]; but the said Universities and Colleges, as aforesaid, shall nevertheless have a Right to Sell such Copies so bequeathed or given as aforesaid, in like Manner as any Author or Authors now may do under the Provisions of the Statute of 8 Anne. [Sidenote: No person subject to Penalties for printing, &c., Books already bequeathed, unless they be entered before 24th June, 1775. All Books that may hereafter be bequeathed must be entered within] [Sidenote: two months after such Bequest shall be known. 6d. to be paid for each entry in the Register Book, which may be inspected without Fee. Clerk to give a Certificate, being paid 6d.] IV. And Whereas many Persons may through Ignorance offend against this Act, unless some Provision be made whereby the Property of every such Book as is intended by this Act to be secured to the said Universities, Colleges, and Houses of Learning within the same, and to the said Universities in Scotland, and to the respective Colleges of Eton, Westminster, and Winchester, may be ascertained and known; be it therefore enacted that nothing in this Act contained shall be construed to extend to subject any Bookseller, Printer, or other Person whatsoever, to the Forfeitures or Penalties herein mentioned, for or by reason of the printing or reprinting, importing or exposing to Sale any Book or Books, unless the Title to the Copy of such Book or Books, which has or have been already bequeathed or given to any of the said Universities or Colleges aforesaid, be entered in the Register Book of the Company of Stationers kept for that Purpose, in such Manner as hath been usual, on or before June 24, 1775; and of all and every such Book or Books as may or shall hereafter be bequeathed or given as aforesaid, be entered in such Register within the space of two Months after any such Bequest or Gift shall have come to the knowledge of the Vice-Chancellors of the said Universities, or Heads of Houses and Colleges of Learning, or of the Principal of any of the said four Universities respectively; for every of which Entries so to be made as aforesaid the Sum of Sixpence shall be paid, and no more; which said Register Book shall and may, at all seasonable and Convenient Times, be referred to and inspected by any Bookseller, Printer, or other Person without any Fee or Reward; and the Clerk of the said Company of Stationers shall, when and as often as thereunto required, give a Certificate under his Hand of such Entry or Entries, and for every such Certificate may take a Fee not exceeding Sixpence. [Sidenote: If Clerk refuse or neglect to make Entry, &c., Proprietor of such Copy Right to have like Benefit as if such Entry had been made, and the Clerk shall forfeit £20.] V. And if the Clerk of the said Company of Stationers for the Time being shall refuse or neglect to register or make such Entry or Entries, or to give such Certificate, being thereunto required by the Agent of either of the said Universities or Colleges aforesaid, lawfully authorised for that Purpose, then either of the said Universities or Colleges aforesaid, being the Proprietor of such Copy Right or Copy Rights as aforesaid (Notice being first given of such Refusal by Advertisement in the Gazette) shall have the like Benefit as if such Entry or Entries, Certificate or Certificates, had been duly made and given; and the Clerk so refusing shall, for every such Offence, forfeit £20 to the Proprietor or Proprietors of every such Copy Right; to be recovered in any of His Majesty's Courts of Record at Westminster, or in the Court of Session in Scotland, by Action of Debt, Bill, Plaint, or Information, in which no Wages of Law, Essoign, Privilege, Protection, or more than One Imparlance, shall be allowed. [Sidenote: 8 Anne. Delivery of Copies.] VI. [_Clause enacting that no person shall be entitled to penalties under_ 8 _Anne unless the Title to the copy of the whole book be entered at Stationer? Hall and_ 9 _copies delivered for the use of the several libraries_: Repealed Stat. Law Rev. Act, 1861.] [Sidenote: Limitation of Actions.] VII. _And if any Action or Suit shall be commenced or brought against any Person or Persons whatsoever, for doing or causing to be done, any thing in pursuance of this Act, the Defendants in such Action may plead the General Issue, and give the Special Matter in Evidence; and if upon such Action a Verdict, or if the same shall be brought in the Court of Session in Scotland, a Judgment be given for the Defendant, or the Plaintiff become nonsuited and discontinue his Action, then the Defendant shall have and recover his full Costs, for which he shall have the same Remedy as a Defendant in any Case by Law hath._[1673] [Sidenote: Public Act.] VIII. [_Clause providing that the Act shall be deemed a Public Act:_ Repealed Stat. Law Rev. Act, 1887.] THE PRINTS COPYRIGHT ACT, 1777. 17 GEO. III. C. 57. An Act for more effectually securing the Property of Prints to Inventors and Engravers, by enabling them to sue for and recover Penalties in certain cases. [Sidenote: Recital of Acts 8 G. 2,] [Sidenote: and 7 G. 3.] [Sidenote: After 24th June, 1777, if any Engraver, &c., shall, within the Time limited by the aforesaid Acts, engrave or etch, &c., any Print, without the Consent of the Proprietor, he shall be liable to Damages, and Double Costs]. Whereas an Act of Parliament passed in the Eighth Year of the Reign of His late Majesty King George the Second, intituled, An Act for the Encouragement of the Arts of designing, engraving, and etching Historical and other Prints, by vesting the Properties thereof in the Inventors and Engravers, during the Time therein mentioned: And whereas by an Act of Parliament, passed in the Seventh Year of the Reign of His present Majesty, for amending and rendering more effectual the aforesaid Act, and for other Purposes therein mentioned, it was (among other Things) enacted, that, from and after the First Day of January One thousand seven hundred and sixty-seven, all and every Person or Persons who should engrave, etch, or work in Mezzotinto or Chiaro Oscuro, or cause to be engraved, etched, or worked, any Print taken from any Picture, Drawing, Model, or Sculpture, either ancient or modern, should have, and were thereby declared to have, the Benefit and Protection of the said former Act, and that Act, for the Term thereinafter mentioned, in like Manner as if such Print had been graved or drawn from the Original Design of such Graver, Etcher, or Draughtsman: And whereas the said Acts have not effectually answered the Purposes for which they were intended, and it is necessary, for the Encouragement of Artists, and for securing to them the Property of and in their Works, and for the Advancement and Improvement of the aforesaid Arts, that such further Provisions should be made as are hereinafter mentioned and contained; be it enacted that, from and after the Twenty-fourth Day of June One thousand seven hundred and seventy-seven, if any Engraver, Etcher, Printseller, or other Person, shall, within the Time limited by the aforesaid Acts, or either of them, engrave, etch, or work, or cause or procure to be engraved, etched, or worked, in Mezzotinto or Chiaro Oscuro, or otherwise, or in any other Manner copy in the Whole, or in Part, by varying, adding to, or diminishing from, the main Design, or shall print, reprint, or import for Sale, or cause or procure to be printed,-reprinted, or imported for Sale, or shall publish, sell, or otherwise dispose of, or cause or procure to be published, sold, or otherwise disposed of, any Copy or Copies of any historical Print or Prints, or any Print or Prints of any Portrait, Conversation, Landscape, or Architecture, Map, Chart, or Plan, or any other Print or Prints whatsoever, which hath or have been, or shall be, engraved, etched, drawn, or designed, in any Part of Great Britain, without the express Consent of the Proprietor or Proprietors thereof first had and obtained in Writing, signed by him, her, or them respectively, with his, her, or their own Hand or Hands, in the Presence of and attested by Two or More credible Witnesses, then every such Proprietor or Proprietors shall and may by and in a special Action upon the Case, to be brought against the Person or Persons so offending recover such damages as a Jury on the Trial of such Action, or on the Execution of a Writ of Inquiry thereon, shall give or assess, _together with Double Costs of Suit_.[1674] THE SCULPTURE COPYRIGHT ACT, 1814. 54 GEO. III. C. 56. An Act to amend and render more effectual an Act of His present Majesty, for encouraging the Art of making new Models and Casts of Busts, and other Things therein mentioned; and for giving further Encouragement to such Arts. [18th May 1814.] [Sidenote: 38 G. 3 c. 71.] [Sidenote: The sole Right and Property of all new and original Sculpture Models, Copies, and Casts, vested in the Proprietors, for 14 Years.] I. Whereas by an Act, passed in the Thirty-eighth Year of the Reign of His present Majesty, intituled An Act for encouraging the Art of making new Models and Casts of Busts, and other Things therein mentioned; the sole Right and Property thereof were vested in the original Proprietors, for a Time therein specified: And whereas the Provisions of the said Act having been found ineffectual for the Purposes thereby intended, it is expedient to amend the same, and to make other Provisions and Regulations for the Encouragement of Artists, and to secure to them the Profits of and in their Works, and for the Advancement of the said Arts: Be it enacted That from and after the passing of this Act, every Person or Persons who shall make or cause to be made any new and original Sculpture,[1675] or Model, or Copy, or Cast, of the Human Figure or Human Figures, or of any Bust or Busts, or of any Part or Parts of the Human Figure, clothed in Drapery or otherwise, or of any Animal or Animals, or of any Part or Parts of any Animal combined with the Human Figure or otherwise, or of any Subject being Matter of Invention in Sculpture or of any Alto or Basso-Relievo representing any of the Matters or Things hereinbefore mentioned, or any Cast from Nature of the Human Figure, or of any Part or Parts of the Human Figure, or of any Cast from Nature of any Animal, or of any Part or Parts of any Animal, or of any such Subject containing or representing any of the Matters and Things hereinbefore mentioned, whether separate or combined, shall have the sole Right and Property of all and in every such new and original Sculpture, Model, Copy and Cast of the Human Figure or Human Figures, and of all and in every such Bust or Busts, and of all and in every such Part or Parts of the Human Figure, clothed in Drapery or otherwise, and of all and in every such new and original Sculpture, Model, Copy and Cast, representing any Animal or Animals, and of all and in every such Work representing any Part or Parts of any Animal combined with the Human Figure or otherwise, and of all and in every such new and original Sculpture, Model, Copy and Cast of any Subject, being Matter of Invention in Sculpture, and of all and in every such new and original Sculpture, Model, Copy and Cast in Alto or Basso-Relievo, representing any of the Matters or Things hereinbefore mentioned, and of every such Cast from Nature, for the Term of Fourteen Years from first putting forth or publishing[1676] the same; provided, in all and in every Case, the Proprietor or Proprietors do cause his, her, or their Name or Names, with the Date, to be put on all and every such new and original Sculpture, Model, Copy, or Cast, and on every such Cast from Nature, before the same shall be put forth or published. [Sidenote: Works published under the recited Act, vested in the Proprietors for 14 Years.] II. And the sole Right and Property of all Works, which have been put forth or published under the Protection of the said recited Act, shall be extended, continued to and vested in the respective Proprietors thereof, for the Term of Fourteen Years, to commence from the Date when such last-mentioned Works respectively were put forth or published. [Sidenote: Persons putting forth pirated Copies or pirated Casts, may be prosecuted.] [Sidenote: Damages and Double Costs.] III. And if any Person or Persons shall, within such Term of Fourteen Years, make or import, or cause to be made or imported, or exposed to Sale, or otherwise disposed of, any pirated Copy or pirated Cast of any such new and original Sculpture, or Model or Copy, or Cast of the Human Figure or Human Figures, or of any such Bust or Busts, or of any such Part or Parts of the Human Figure clothed in Drapery or otherwise, or of any such Work of any Animal or Animals, or of any such Part or Parts of any Animal or Animals combined with the Human Figure or otherwise, or of any such Subject being Matter of Invention in Sculpture, or of any such Alto or Basso-Relievo representing any of the Matters or Things hereinbefore mentioned, or of any such Cast from Nature as aforesaid, whether such pirated Copy or pirated Cast be produced by moulding or copying from, or imitating in any way, any of the Matters or Things put forth or published under the Protection of this Act, or of any Works which have been put forth or published under the Protection of the said recited Act, the Right and Property whereof is and are secured, extended and protected by this Act, in any of the Cases as aforesaid, to the Detriment, Damage, or Loss of the original or respective Proprietor or Proprietors of any such Works so pirated; then and in all such Cases the said Proprietor or Proprietors, or their Assignee or Assignees, shall and may, by and in a Special Action upon the Case to be brought against the Person or Persons so offending, receive such Damages as a Jury on a Trial of such Action shall give or assess, _together with Double Costs of Suit_.[1677] [Sidenote: Purchasers of Copy Right secured in the same.] IV. Provided nevertheless, That no Person or Persons who shall or may hereafter purchase the Right or Property of any new and original Sculpture or Model, or Copy or Cast, or of any Cast from Nature, or of any of the Matters and Things published under or protected by virtue of this Act, of the Proprietor or Proprietors, expressed in a Deed in Writing signed by him, her, or them respectively, with his, her, or their own Hand or Hands, in the Presence of and attested by Two or more credible Witnesses, shall be subject to any Action for copying or casting, or vending the same, any Thing contained in this Act to the contrary notwithstanding. [Sidenote: Limitation of Actions.] V. Provided always, That all Actions to be brought as aforesaid, against any Person or Persons for any Offence committed against this Act, shall be commenced within Six Calendar Months next after the Discovery of every such Offence, and not afterwards. [Sidenote: An additional Term of 14 Years, in case the Maker of the original Sculpture, &c., shall be living.] VI. Provided always, That from and immediately after the Expiration of the said Term of Fourteen Years, the sole Right of making and disposing of such new and original Sculpture, or Model, or Copy, or Cast of any of the Matters or Things hereinbefore mentioned, shall return to the Person or Persons who originally made or caused to be made the same, if he or they shall be then living, for the further Term of Fourteen Years, _excepting in the Case or Cases where such Person or Persons shall by Sale or otherwise have divested himself, herself or themselves, of such Right of making or disposing of any new and original Sculpture, or Model, or Copy, or Cast of any of the Matters or Things hereinbefore mentioned, previous to the passing of this Act_.[1678] THE DRAMATIC COPYRIGHT ACT, 1833. 3 & 4 WILL. IV. An Act to amend the Laws relating to Dramatic Literary Property. [10th June 1833.] [Sidenote: 54 G. 3 c. 156.] [Sidenote: The Author of any Dramatic Piece shall have as his Property the sole Liberty of representing it or causing it to be represented at any Place of Dramatic Entertainment.] I. _Whereas by an Act passed in the Fifty-fourth year of the Reign of His late Majesty King George the Third, intituled An Act to amend the several Acts for the Encouragement of Learning, by securing the Copies and Copyright of printed Books to the Authors of such Books, or their Assigns, it was amongst other things provided and enacted, that from and after the passing of the said Act the Author of any Book or Books composed, and not printed or published, or which should thereafter be composed and printed and published, and his Assignee or Assigns, should have the sole Liberty of printing and reprinting such Books or Books for the full Term of Twenty-eight Years, to commence from the Day of first publishing the same, and also, if the Author should be living at the End of that Period, for the Residue of his natural Life: And whereas it is expedient to extend the Provisions of the said Act:[1679] Be it therefore enacted_, That the Author of any Tragedy, Comedy, Play, Opera, Farce, or any other Dramatic Piece[1680] or Entertainment, composed, and not printed and published by the Author thereof or his Assignee, or which hereafter shall be composed, and not printed or published by the Author thereof or his Assignee, or the Assignee of such Author, shall have as his own Property the sole Liberty of representing, or causing[1681] to be represented, at any Place or Places of Dramatic Entertainment[1682] whatsoever, in any Part of the United Kingdom of Great Britain and Ireland, in the Isles of Man, Jersey, and Guernsey, or in any Part of the British Dominions, any such Production as aforesaid, not printed and published by the Author thereof or his Assignee, and shall be deemed and taken to be the Proprietor thereof; and the Author of any such Production, printed and published within Ten Years before the passing of this Act by the Author thereof or his Assignee, or which shall hereafter be so printed and published, or the Assignee of such Author, shall, from the Time of passing this Act, or from the Time of such Publication respectively, until the End of Twenty-eight Years from the Day of such first Publication of the same, and also, if the Author or Authors, or the Survivor of the Authors, shall be living at the End of that period, during the Residue of his natural Life,[1683] have as his own Property the sole Liberty of representing, or causing to be represented, the same at any such Place of Dramatic Entertainment as aforesaid, and shall be deemed and taken to be the Proprietor thereof: Provided nevertheless, that nothing in this Act contained shall prejudice, alter, or affect the Right or Authority of any Person to represent or cause to be represented, at any Place or Places of Dramatic Entertainment whatsoever, any such Production as aforesaid, in all Cases in which the Author thereof or his Assignee shall, previously to the passing of this Act, have given his Consent to or authorised such Representation, but that such sole Liberty of the Author or his Assignee shall be subject to such Right or Authority. [Sidenote: Proviso as to Cases where, previous to the passing of this Act, a Consent has been given.] [Sidenote: Penalty on Persons performing Pieces contrary to this Act.] II. If any Person shall, during the Continuance of such sole Liberty as aforesaid, contrary to the Intent of this Act, or Right of the Author or his Assignee, represent, or cause to be represented, without the Consent in Writing[1684] of the Author or other Proprietor first had and obtained, at any Place of Dramatic Entertainment within the Limits aforesaid, any such Production as aforesaid, or any Part thereof, every such Offender shall be liable for each and every such Representation to the Payment of an Amount not less than Forty Shillings, or to the full Amount of the Benefit or Advantage arising from such Representation, or the Injury or Loss sustained by the Plaintiff therefrom, whichever shall be the greater Damages, to the Author or other Proprietor of such Production so represented contrary to the true Intent and Meaning of this Act, to be recovered, _together with Double Costs of Suit_,[1685] by such Author or other Proprietors, in any Court having Jurisdiction in such Cases in that Part of the said United Kingdom or of the British Dominions in which the Offence shall be committed; and in every such Proceeding where the sole Liberty of such Author or his Assignee as aforesaid shall be subject to such Right or Authority as aforesaid it shall be sufficient for the Plaintiff to state that he has such sole Liberty, without stating the same to be subject to such Right or Authority, or otherwise mentioning the same. [Sidenote: Limitation of Actions.] III. Provided nevertheless. That all Actions or Proceedings for any Offence or Injury that shall be committed against this Act shall be brought, sued, and commenced within Twelve Calendar Months next after such Offence committed, or else the same shall be void and of no effect. [Sidenote: Explanation of Words.] IV. Whenever Authors, Persons, Offenders, or others are spoken of in this Act in the singular Number or in the Masculine Gender, the same shall extend to any Number of Persons and to either Sex. THE LECTURES COPYRIGHT ACT, 1835.[1686] 5 & 6 WILL. IV. C. 65. An Act for preventing the Publication of Lectures without Consent. [9th September 1835.] [Sidenote: Authors of Lectures, or their Assigns, to have the sole Right of publishing them.] [Sidenote: Penalty on other persons publishing, &c., Lectures without Leave.] I. _Whereas Printers, Publishers, and other Persons have frequently taken the Liberty of printing and publishing Lectures delivered upon divers Subjects, without the Consent of the Authors of such Lectures, or the Persons delivering the same in Public, to the great Detriment of such Authors and Lecturers: Be it enacted by the King's most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the Authority of the same, That from and after the First Day of September One thousand eight hundred and thirty-five_[1687] the Author of any Lecture or Lectures, or the Person to whom he hath sold or otherwise conveyed the Copy thereof, in order to deliver the same in any School, Seminary, Institution, or other Place, or for any other Purpose, shall have the sole Right and Liberty of printing and publishing such Lecture or Lectures; and if any Person shall, by taking down the same in Short Hand or otherwise in Writing, or in any other Way, obtain or make a Copy of such Lecture or Lectures, and shall print or lithograph or otherwise copy and publish the same, or cause the same to be printed, lithographed, or otherwise copied and published, without Leave of the Author thereof, or of the Person to whom the Author thereof hath sold or otherwise conveyed the same, and every Person who, knowing the same to have been printed or copied and published without such Consent, shall sell, publish, or expose to sale, or cause to be sold, published, or exposed to sale, any such Lecture or Lectures, shall forfeit such printed or otherwise copied Lecture or Lectures, or Parts thereof, together with One Penny for every Sheet thereof which shall be found in his Custody, either printed, lithographed, or copied, or printing, lithographing, or copying, published or exposed to sale, contrary to the true Intent and Meaning of this Act, the one Moiety thereof to His Majesty, and the other Moiety thereof to any Person who shall sue for the same, to be recovered in any of His Majesty's Courts of Record in Westminster, _by Action of Debt, Bill, Plaint, or Information, in which no Wager of Law, Essoign, Privilege, or Protection, or more than One Imparlance, shall be allowed_.[1688] [Sidenote: Penalty on Printers or Publishers of Newspapers publishing Lectures without Leave.] II. Any Printer or Publisher of any Newspaper who shall, without such Leave as aforesaid, print and publish in such Newspaper any Lecture or Lectures, shall be deemed and taken to be a Person printing and publishing without Leave within the Provisions of this Act, and liable to the aforesaid Forfeitures and Penalties in respect of such printing and publishing. [Sidenote: Persons having Leave to attend Lectures not on that Account licensed to publish them.] III. No Person allowed for certain Fee and Reward, or otherwise, to attend and be present at any Lecture delivered in any Place, shall be deemed and taken to be licensed or to have Leave to print, copy, and publish such Lectures only because of having Leave to attend such Lecture or Lectures. [Sidenote: Act not to prohibit the publishing of Lectures after Expiration of the Copyright.] [Sidenote: 8 Anne, c. 19.] [Sidenote: 54 G. 3 c. 156.] IV. Provided always, That nothing in this Act shall extend to prohibit any Person from printing, copying, and publishing any Lecture or Lectures which have or shall have been printed and published with Leave of the Authors thereof or their Assignees, and whereof the Time hath or shall have expired within which the sole Right to print and publish the same is given by an Act passed in the Eighth Year of the Reign of Queen Anne, intituled An Act for the Encouragement of Learning, by vesting the Copies of printed Books in the Authors or Purchasers of such Copies during the Times therein mentioned, and by another Act passed in the Fifty-fourth Year of the Reign of King George the Third, intituled An Act to amend the several Acts for the Encouragement of Learning, by securing the Copies and Copyright of printed Books to the Authors of such Books, or their Assigns, or to any Lectures which have been printed or published before the passing of this Act. [Sidenote: Act not to extend to Lectures delivered in unlicensed Places, &c.] V. Provided further, That nothing in this Act shall extend to any Lecture or Lectures, or the printing, copying, or publishing any Lecture or Lectures, or Parts thereof, of the delivering of which Notice in Writing shall not have been given to Two Justices living within Five Miles from the Place where such Lecture or Lectures shall be delivered Two Days at the least before delivering the same, or to any Lecture or Lectures delivered in any University or public School or College, or on any public Foundation, or by any individual in virtue of or according to any Gift, Endowment, or Foundation; and that the Law relating thereto shall remain the same as if this Act had not been passed. THE PRINTS AND ENGRAVINGS COPYRIGHT ACT, 1836. 6 & 7 WILL. IV. c. 59. An Act to extend the Protection of Copyright in Prints and Engravings to Ireland. [13th August 1836.] [Sidenote: 17 G. 3 c. 57.] [Sidenote: Provisions of Recited Act extended to Ireland.] I. WHEREAS an Act was passed (17 G. III. c. 57): And whereas it is desirable to extend the Provisions of the said Act to Ireland: Be it therefore enacted, That from and after the Passing of this Act all the Provisions contained in the said recited Act and of all other Acts therein recited, shall be and the same are hereby extended to the United Kingdom of Great Britain and Ireland. [Sidenote: Penalty on engraving or publishing any Print without Consent of Proprietor.] II. From and after the Passing of this Act, if any Engraver, Etcher, Printseller, or other Person shall, within the Time limited by the aforesaid recited Acts, engrave, etch, or publish, or cause to be engraved, etched, or published, any Engraving or Print of any Description whatever, either in whole or in part, which may have been or which shall hereafter be published in any Part of Great Britain or Ireland without the express Consent of the Proprietor or Proprietors thereof first had and obtained in Writing, signed by him, her, or them respectively, with his, her, or their own Hand or Hands in the Presence of and attested by Two or more credible Witnesses, then every such Proprietor shall and may, by and in a separate Action upon the Case, to be brought against the Person so offending in any Court of Law in Great Britain or Ireland, recover such Damages as a Jury on the Trial of such Action or on the execution of a Writ of Inquiry thereon shall give or assess, _together with Double Costs of Suit_.[1689] THE COPYRIGHT ACT, 1836. 6 & 7 WILL. IV. C. 110. An Act to repeal so much of 54 Geo. III. c. 156 as requires the delivery of a Copy of every published Book to the Libraries of Sion College, the Four Universities of Scotland and of the King's Inns in Dublin. [20th August 1836.] I. [Clause repealing 54 Geo. III. c. 156 in so far as it requires the delivery of books to the above libraries: Repealed Stat. Law Rev. Act, 1874.] II. It shall be lawful for the Treasury from time to time to issue and pay out of the consolidated fund of the United Kingdom of Great Britain and Ireland to the person or persons or body politic or corporate, proprietors or managers of each of the aforesaid libraries, such an annual sum as may be equal in value to and compensation for the loss which any such library may sustain by reason of the said Act being repealed so far as relates to such library; such annual compensation to be ascertained and determined according to the value of the books which may have been actually received by each such library in such manner as the Treasury shall direct upon an average of the three years ending June 30, 1836. III. The person or persons or body politic or corporate, proprietors or managers of the library for the use whereof any such book would have been delivered, shall and they are hereby required to apply the annual compensation hereby authorised to be made in the purchase of books of literature, science and the arts, for the use of and to be kept and preserved in such library. Provided always that it shall not be lawful for the Treasury to direct the issue of any sum of money for such annual compensation until sufficient proof shall have been adduced before them of the application of the money last issued to the purpose aforesaid. THE COPYRIGHT ACT, 1842. 5 & 6 VICT. C. 45. An Act to amend the Law of Copyright. [1st July 1842.] I. _Whereas it is expedient to amend the Law relating to Copyright, and to afford greater Encouragement to the Production of literary Works of lasting Benefit to the World[1690]: Be it enacted, That from the passing of this Act an Act passed in the Eighth Year of the Reign of Her Majesty Queen Anne, intituled An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or Purchasers of such Copies during the Times therein mentioned; and also an Act passed in the Forty-first Year of the Reign of His Majesty King George the Third, intituled An Act for the further Encouragement of Learning in the United Kingdom of Great Britain and Ireland, by securing the Copies and Copyright of Printed Books to the Authors of such Books, or their Assigns, for the Time therein mentioned; and also an Act passed in the Fifty-fourth Year of the Reign of His Majesty King George the Third, intituled An Act to amend the several Acts for the Encouragement of Learning, by securing the Copies and Copyright of printed Books to the Authors of such Books, or their Assigns, be and the same are hereby repealed, except so far as the Continuance of either of them may be necessary for carrying on or giving effect to any Proceedings at Lain or in Equity pending at the Time of passing this Act, or for enforcing any Cause of Action or Suit, or any Right or Contract, then subsisting._[1691] [Sidenote: Repeal of former Acts;] [Sidenote: 8 Anne, c. 19.] [Sidenote: 41 G. 3 c. 107.] [Sidenote: 54 G. 3 c. 156.] [Sidenote: Interpretation of Act.] II. In the Construction of this Act the Word "Book"[1692] shall be construed to mean and include every volume, Part or Division of a Volume, Pamphlet, Sheet of Letterpress, Sheet of Music, Map,[1693] Chart, or Plan separately published[1694]; the Words "Dramatic Piece"[1695] shall be construed to mean and include every Tragedy, Comedy, Play, Opera, Farce, or other scenic, musical, or dramatic Entertainment; the Word "Copyright" shall be construed to mean the sole and exclusive Liberty of printing or otherwise multiplying Copies of any Subject to which the said Word is herein applied; the Words "personal Representative" shall be construed to mean and include every Executor, Administrator, and next of Kin entitled to Administration; the Word "Assigns" shall be construed to mean and include every Person in whom the Interest of an Author in Copyright shall be vested, whether derived from such Author before or after the Publication of any Book, and whether acquired by Sale, Gift, Bequest, or by Operation of Law, or otherwise[1696]; the Words "British Dominions" shall be construed to mean and include all Parts of the United Kingdom of Great Britain and Ireland, the Islands of Jersey and Guernsey, all Parts of the East and West Indies, and all the Colonies, Settlements, and Possessions of the Crown which now are or hereafter may be acquired; and whenever in this Act, in describing any Person, Matter, or Thing, the Word importing the Singular Number or the Masculine Gender only is used, the same shall be understood to include and to be applied to several Persons as well as one Person, and Females as well as Males, and several Matters or Things as well as one Matter or Thing, respectively, unless there shall be something in the Subject or Context repugnant to such Construction. [Sidenote: Endurance of Term of Copyright in any Book hereafter to be published in the Lifetime of the Author;] [Sidenote: if published after the Author's Death.] III. The Copyright in every Book which shall after the passing of this Act be published[1697] in the Lifetime of its Author[1698] shall endure for the natural Life of such Author, and for the further Term of Seven Years, commencing at the Time of his Death, and shall be the Property of such Author and his Assigns: Provided always, that if the said Term of Seven Years shall expire before the End of Forty-two Years from the first Publication of such Book, the Copyright shall in that Case endure for such Period of Forty-two Years; and the Copyright in every Book which shall be published after the Death of its Author shall endure for the Term of Forty-two Years from the first Publication thereof, and shall be the Property of the Proprietor of the Author's Manuscript from which such Book shall be first published, and his Assigns. [Sidenote: In cases of subsisting Copyright, the Term to be extended, except when it shall belong to an Assignee for other Consideration than natural Love and Affection; in which Case it shall cease at the Expiration of the present Term, unless its Extension be agreed to between the Proprietor and the Author.] IV. _And whereas it is just to extend the Benefits of this Act to Authors of Books published before the passing thereof, and in which Copyright still subsists_,[1699] the Copyright which at the Time of passing this Act shall subsist in any Book theretofore published (except as hereinafter mentioned) shall be extended and endure for the full Term provided by this Act in Cases of Books thereafter published, and shall be the Property of the Person who at the Time of passing of this Act shall be the Proprietor of such Copyright: Provided always, that in all Cases in which such Copyright shall belong in whole or in part to a Publisher or other Person who shall have acquired it for other Consideration than that of natural Love and Affection, such Copyright shall not be extended by this Act, but shall endure for the Term which shall subsist therein at the Time of passing of this Act, and no longer unless the Author of such Book, if he shall be living, or the personal Representative of such Author, if he shall be dead, and the Proprietor of such Copyright shall, before the Expiration of such term, consent and agree to accept the Benefits of this Act in respect of such Book, and shall cause a Minute of such Consent in the Form in that Behalf given in the Schedule to this Act annexed to be entered in the Book of Registry hereinafter directed to be kept, in which Case such Copyright shall endure for the full Term by this Act provided in Cases of Books to be published after the passing of this Act, and shall be the Property of such Person or Persons as in such Minute shall be expressed. [Sidenote: Judicial Committee of the Privy Council may license the Republication of Books which the Proprietor refuses to republish after Death of the Author.] V.[1700] _And whereas it is expedient to provide against the Suppression of Books of Importance to the Public_,[1701] it shall be lawful for the Judicial Committee of Her Majesty's Privy Council, on Complaint made to them that the Proprietor of the Copyright in any Book after the Death of its Author has refused to republish or to allow the Republication of the same, and that by reason of such Refusal such Book may be withheld from the Public, to grant a Licence to such Complainant to publish such Book in such Manner and subject to such Conditions as they may think fit, and it shall be lawful for such Complainant to publish such Book according to such Licence. [Sidenote: Copies of Books published after the passing of this Act, and of all subsequent Editions, to be delivered within certain Times at the British Museum.] VI.[1702] A printed Copy of the whole of every Book which shall be published after the passing of this Act, together with all Maps, Prints, or other Engravings belonging thereto, finished and coloured in the same Manner as the best Copies of the same shall be published, and also of any second or subsequent Edition which shall be so published with any Additions or Alterations, whether the same shall be in Letterpress, or in the Maps, Prints, or other Engravings belonging thereto, and whether the first Edition of such Book shall have been published before or after the passing of this Act, and also of any second or subsequent Edition of every Book of which the first or some preceding Edition shall not have been delivered for the Use of the British Museum, bound, sewed, or stitched together, and upon the best Paper on which the same shall be printed, shall, within One Calendar Month after the Day on which any such Book shall first be sold, published, or offered for Sale within the Bills of Mortality, or within Three Calendar Months if the same shall first be sold, published, or offered for Sale in any other Part of the United Kingdom, or within Twelve Calendar Months after the same shall first be sold, published, or offered for Sale in any other Part of the British Dominions, be delivered, on behalf of the Publisher thereof, at the British Museum. [Sidenote: Mode of delivering at the British Museum.] VII. Every Copy of any Book which under the Provisions of this Act ought to be delivered as aforesaid shall be delivered at the British Museum between the Hours of Ten in the Forenoon and Four in the Afternoon on any Day except Sunday, Ash Wednesday, Good Friday, and Christmas Day, to one of the Officers of the said Museum, or to some Person authorised by the Trustees of the said Museum to receive the same, and such Officer or other Person receiving such Copy is hereby required to give a Receipt in Writing for the same, and such Delivery shall to all Intents and Purposes be deemed to be good and sufficient Delivery under the Provisions of this Act. [Sidenote: A Copy of every Book to be delivered within a Month after Demand to the Officer of the Stationers Company, for the following Libraries: the Bodleian at Oxford, the Public Library at Cambridge, the Faculty of Advocates at Edinburgh, and that of Trinity College, Dublin.] VIII.[1703] A Copy of the whole of every Book, and of any second or subsequent Edition of every Book containing Additions and Alterations, together with all Maps and Prints belonging thereto, which after the passing of this Act shall be published, shall, on Demand thereof in Writing, left at the Place of Abode of the Publisher thereof at any Time within Twelve Months next after the Publication thereof, under the Hand of the Officer of the Company of Stationers who shall from Time to Time be appointed by the said Company for the Purposes of this Act, or under the Hand of any other Person thereto authorised by the Persons or Bodies Politic and Corporate, Proprietors and Managers of the Libraries following, (_videlicet_), the Bodleian Library at Oxford, the Public Library at Cambridge, the Library of the Faculty of Advocates at Edinburgh, the Library of the College of the Holy and Undivided Trinity of Queen Elizabeth near Dublin, be delivered, upon the Paper of which the largest Number of Copies of such Book or Edition shall be printed for Sale, in the like Condition as the Copies prepared for Sale by the Publisher thereof respectively, within One Month after Demand made thereof in Writing as aforesaid, to the said Officer of the said Company of Stationers for the Time being, which Copies the said Officer shall and he is hereby required to receive at the Hall of the said Company, for the Use of the Library for which such Demand shall be made within such Twelve Months as aforesaid; and the said Officer is hereby required to give a Receipt in Writing for the same, and within One Month after any such Book shall be so delivered to him as aforesaid to deliver the same for the Use of such Library. [Sidenote: Publishers may deliver the Copies to the Libraries, instead of at the Stationers' Company.] IX. Provided also, That if any Publisher shall be desirous of delivering the Copy of such Book as shall be demanded on behalf of any of the said Libraries at such Library, it shall be lawful for him to deliver the same at such Library, free of Expense, to such Librarian or other Person authorised to receive the same (who is hereby required in such Case to receive and give a Receipt in Writing for the same), and such Delivery shall to all Intents and Purposes of this Act be held as equivalent to a Delivery to the said Officer of the Stationers' Company. [Sidenote: Penalty for Default in delivering Copies for the Use of the Libraries.] X. If any Publisher of any such Book, or of any second or subsequent Edition of any such Book, shall neglect to deliver the same, pursuant to this Act, he shall for every such Default forfeit, besides the Value of such Copy of such Book or Edition which he ought to have delivered, a Sum not exceeding Five Pounds, to be recovered by the Librarian or other Officer (properly authorised) of the Library for the Use whereof such Copy should have been delivered, in a summary Way, on Conviction before Two Justices of the Peace for the County or Place where the Publisher making default shall reside, or by Action of Debt or other Proceeding of the like Nature, at the Suit of such Librarian or other Officer, in any Court of Record in the United Kingdom, in which Action, if the Plaintiff shall obtain a Verdict, he shall recover his Costs reasonably incurred, to be taxed as between Attorney and Client. [Sidenote: Book of Registry to be kept at Stationers' Hall.] XI.[1704] A Book of Registry, wherein may be registered, as hereinafter enacted, the Proprietorship in the Copyright of Books, and Assignments thereof, and in Dramatic and Musical Pieces, whether in Manuscript or otherwise, and Licences affecting such Copyright, shall be kept at the Hall of the Stationers' Company, by the Officer appointed by the said Company for the Purposes of this Act, and shall at all convenient Times be open to the Inspection of any Person, on Payment of One Shilling for every Entry which shall be searched for or inspected in the said Book; and that such Officer shall, whenever thereunto reasonably required, give a Copy of any Entry in such Book, certified under his Hand, and impressed with the Stamp of the said Company, to be provided by them for that Purpose, and which they are hereby required to provide, to any Person requiring the same, on Payment to him of the Sum of Five Shillings; and such Copies so certified and impressed shall be received in Evidence in all Courts, and in all summary Proceedings, and shall be _primâ facie_ Proof[1705] of the Proprietorship or Assignment of Copyright or Licence as therein expressed, but subject to be rebutted by other Evidence, and in the Case of Dramatic or Musical Pieces shall be _primâ facie_ Proof of the Right of Representation or Performance, subject to be rebutted as aforesaid. [Sidenote: Making a false Entry in the Book of Registry a Misdemeanour.] XII. If any Person shall wilfully make or cause to be made any false Entry in the Registry Book of the Stationers' Company, or shall wilfully produce or cause to be tendered in Evidence any Paper falsely purporting to be a Copy of any Entry in the said Book, he shall be guilty of an indictable Misdemeanour, and shall be punished accordingly. [Sidenote: Entries of Copyright may be made in the Book of Registry.] XIII.[1706] It shall be lawful for the Proprietor of Copyright in any Book heretofore published, or in any Book hereafter to be published, to make Entry in the Registry Book of the Stationers' Company of the Title of such Book, the Time of the first Publication thereof, the Name and Place of Abode of the Publisher thereof, and the Name and Place of Abode of the Proprietor of the Copyright of the said Book, or of any Portion of such Copyright, in the Form in that Behalf given in the Schedule to this Act annexed, upon Payment of the Sum of Five Shillings to the Officer of the said Company; and it shall be lawful for every such registered Proprietor to assign his Interest,[1707] or any Portion of his Interest therein, by making Entry in the said Book of Registry of such Assignment, and of the Name and Place of Abode of the Assignee thereof, in the Form given in that Behalf in the said Schedule, on Payment of the like Sum; and such Assignment so entered shall be effectual in Law to all Intents and Purposes whatsoever, without being subject to any Stamp or Duty, and shall be of the same Force and Effect as if such Assignment had been made by Deed. [Sidenote: Persons aggrieved by any Entry in the Book of Registry may apply to a Court of Law in Term, or Judge in Vacation, who may order such Entry to be varied or expunged.] XIV.[1708] If any Person shall deem himself aggrieved by any Entry made under colour of this Act in the said Book of Registry, it shall be lawful for such Person to apply by Motion to the Court of Queen's Bench, _Court of Common Pleas, or Court of Exchequer, in Term Time, or to apply by Summons to any Judge of either of such Courts in Vacation_,[1709] for an Order that such Entry may be expunged or varied; and upon any such Application _by Motion or Summons to either of the said Courts, or to a Judge as aforesaid_,[1710] such Court _or Judge_[1711] shall make such Order for expunging, varying, or confirming such Entry, either with or without Costs, as to such Court _or Judge_[1712] shall seem just; and the Officer appointed by the Stationers Company for the Purposes of this Act shall, on the Production to him of any such Order for expunging or varying any such Entry, expunge or vary the same according to the Requisitions of such Order. [Sidenote: Remedy for the Piracy of Books by Action on the Case.] XV. If any Person shall, in any Part of the British Dominions, print or cause to be printed,[1713] either for Sale or Exportation, any Book in which there shall be subsisting Copyright, without the Consent in Writing[1714] of the Proprietor thereof, or shall import for Sale or Hire any such Book so having been unlawfully printed from Parts beyond the Sea, or, knowing such Book to have been so unlawfully printed or imported, shall sell, publish, or expose to Sale or Hire, or cause to be sold, published, or exposed to Sale or Hire, or shall have in his Possession, for Sale or Hire, any such Book so unlawfully printed or imported, without such Consent as aforesaid, such Offender shall be liable to a special Action on the Case at the Suit of the Proprietor of such Copyright, to be brought in any Court of Record in that Part of the British Dominions in which the Offence shall be committed: Provided always, that in Scotland such Offender shall be liable to an Action in the Court of Session in Scotland, which shall and may be brought and prosecuted in the same Manner in which any other Action of Damages to the like Amount may be brought and prosecuted there. [Sidenote: In Actions for Piracy the Defendant to give Notice of the Objections to the Plaintiff's Title on which he means to rely.] XVI. In any Action brought within the British Dominions against any Person for printing any such Book for Sale, Hire, or Exportation, or for importing, selling, publishing, or exposing to Sale or Hire, or causing to be imported, sold, published, or exposed to Sale or Hire, any such Book, the Defendant, on pleading thereto, shall give to the Plaintiff a Notice in Writing of any Objections on which he means to rely on the Trial of such Action[1715]; and if the Nature of his Defence be, that the Plaintiff in such Action was not the Author or first Publisher of the Book in which he shall by such Action claim Copyright, or is not the Proprietor of the Copyright therein, or that some other Person than the Plaintiff was the Author or first Publisher of such Book, or is the Proprietor of the Copyright therein, then the Defendant shall specify in such Notice the Name of the Person who he alleges to have been the Author or first Publisher of such Book, or the Proprietor of the Copyright therein, together with the Title of such Book, and the Time when and the Place where such Book was first published, otherwise the Defendant in such Action shall not at the Trial or Hearing of such Action be allowed to give any Evidence that the Plaintiff in such Action was not the Author or first Publisher of the Book in which he claims such Copyright as aforesaid, or that he was not the Proprietor of the Copyright therein; and at such Trial or Hearing no other Objection shall be allowed to be made on behalf of such Defendant than the Objections stated in such Notice, or that any other Person was the Author or first Publisher of such Book, or the Proprietor of the Copyright therein, than the Person specified in such Notice, or give in Evidence in support of his Defence any other Book than one substantially corresponding in Title, Time, and Place of Publication with the Title, Time, and Place specified in such Notice. [Sidenote: No Person, except the Proprietor, &c., shall import into the British Dominions for Sale or Hire any Book first composed, &c., within the United Kingdom, and reprinted elsewhere, under Penalty of Forfeiture thereof, and also of £10 and Double the Value.] [Sidenote: Books may be seized by Officers of Customs or Excise.] XVII.[1716] It shall not be lawful for any Person, not being the Proprietor of the Copyright, or some Person authorised by him, to import into any Part of the United Kingdom, or into any other Part of the British Dominions, for Sale or Hire, any printed Book first composed or written or printed and published in any Part of the said United Kingdom, wherein there shall be Copyright, and reprinted in any Country or Place whatsoever out of the British Dominions; and if any Person, not being such Proprietor or Person authorised as aforesaid, shall import or bring, or cause to be imported or brought, for Sale or Hire, any such printed Book, into any Part of the British Dominions, contrary to the true Intent and Meaning of this Act, or shall knowingly sell, publish, or expose to Sale or let to Hire, or have in his Possession for Sale or Hire, any such Book, then every such Book shall be forfeited, and shall be seized by any Officer of Customs or Excise, and the same shall be destroyed by such Officer, and every Person so offending, being duly convicted thereof before Two Justices of the Peace for the County or Place in which such Book shall be found, shall also for every such Offence[1717] forfeit the Sum of Ten Pounds, and Double the Value of every Copy of such Book which he shall so import or cause to be imported into any Part of the British Dominions, or shall knowingly sell, publish, or expose to Sale or let to Hire, or shall cause to be sold, published, or exposed to Sale or let to Hire, or shall have in his Possession for Sale or Hire, contrary to the true Intent and Meaning of this Act, Five Pounds to the Use of such Officer of Customs or Excise, and the Remainder of the Penalty to the Use of the Proprietor of the Copyright in such Book. [Sidenote: As to the Copyright in Encyclopædias, Periodicals, and Works published in a Series, Reviews, or Magazines.] [Sidenote: Proviso for Authors who have reserved the Right of publishing their Articles in a separate Form.] XVIII.[1718] When any Publisher or other Person shall, before or at the Time of the passing of this Act, have projected, conducted, and carried on, or shall hereafter project, conduct, and carry on, or be the Proprietor of any Encyclopædia, Review, Magazine, Periodical Work, or Work published in a Series of Books or Parts, or any Book whatsoever,[1719] and shall have employed or shall employ any Persons to compose the same, or any Volumes, Parts, Essays, Articles, or Portions thereof, for Publication in or as Part of the same, and such Work, Volumes, Parts, Essays, Articles, or Portions shall have been or shall hereafter be composed under such Employment,[1720] on the Terms[1721] that the Copyright therein shall belong to such Proprietor,[1722] Projector, Publisher, or Conductor, and paid[1723] for by such Proprietor, Projector, Publisher, or Conductor, the Copyright in every such Encyclopædia, Review, Magazine, Periodical Work, and Work published in a Series of Books or Parts, and in every Volume, Part, Essay, Article, and Portion so composed and paid for, shall be the Property of such Proprietor, Projector, Publisher, or other Conductor, who shall enjoy the same Rights as if he were the actual Author thereof, and shall have such Term of Copyright therein as is given to the Authors of Books by this Act; except only that in the Case of Essays, Articles, or Portions forming Part of and first published in Reviews, Magazines, or other Periodical Works of a like Nature, after the Term of Twenty-eight Years from the first Publication thereof respectively the Right of publishing the same in a separate Form[1724] shall revert to the Author for the Remainder of the Term given by this Act: Provided always, that during the Term of Twenty-eight Years the said Proprietor, Projector, Publisher, or Conductor shall not publish any such Essay, Article, or Portion separately or singly without the Consent previously obtained of the Author thereof, or his Assigns: Provided also, that nothing herein contained shall alter or affect the Right of any Person who shall have been or who shall be so employed as aforesaid to publish any such his Composition in a separate Form, who by any Contract, express or implied, may have reserved or may hereafter reserve to himself such Right; but every Author reserving, retaining, or having such Right shall be entitled to the Copyright in such Composition when published in a separate Form, according to this Act, without Prejudice to the Right of such Proprietor, Projector, Publisher, or Conductor as aforesaid. [Sidenote: Proprietors of Encyclopædias, Periodicals, and Works published in a Series, may enter at once at Stationers' Hall, and thereon have the Benefit of the Registration of the Whole.] XIX.[1725] The Proprietor of the Copyright in any Encyclopædia, Review, Magazine, Periodical Work, or other Work published in a Series of Books or Parts, shall be entitled to all the Benefits of the Registration at Stationers' Hall under this Act, on entering in the said Book of Registry the Title of such Encyclopædia, Review, Periodical Work, or other Work published in a Series of Books or Parts, the Time of the first Publication of the First Volume, Number, or Part thereof, or of the First Number or Volume first published after the passing of this Act in any such Work which shall have been published heretofore, and the Name and Place of Abode of the Proprietor thereof, and of the Publisher thereof, when such Publisher shall not also be the Proprietor thereof. [Sidenote: The Provisions of 3 & 4 W 4. c. 15, extended to Musical Compositions, and the Term of Copyright, as provided by this Act, applied to the Liberty of representing Dramatic Pieces and Musical Compositions.] XX. _And whereas an Act was passed in the Third Year of the Reign of His late Majesty, to amend the Law relating to Dramatic Literary Property, and it is expedient to extend the Term of the sole Liberty of representing Dramatic Pieces given by that Act to the full Time by this Act provided for the Continuance of Copyright: And whereas it is expedient to extend to Musical Compositions the Benefits of that Act, and also of this Act_;[1726] the Provisions of the said Act of His late Majesty, and of this Act, shall apply to Musical Compositions,[1727] and the sole Liberty of representing or performing, or causing or permitting to be represented or performed, any Dramatic Piece or Musical Composition, shall endure and be the Property of the Author thereof, and his Assigns,[1728] for the Term in this Act provided for the Duration of Copyright in Books; and the Provisions hereinbefore enacted in respect of the Property of such Copyright, and of registering[1729] the same, shall apply to the Liberty of representing or performing any Dramatic Piece or Musical Composition, as if the same were herein expressly re-enacted and applied thereto, save and except that the first public Representation or Performance of any Dramatic Piece or Musical Composition shall be deemed equivalent, in the Construction of this Act, to the first Publication of any Book: Provided always, that in case of any Dramatic Piece or Musical Composition in Manuscript, it shall be sufficient for the Person having the sole Liberty of representing or performing, or causing to be represented or performed the same, to register only the Title thereof, the Name and Place of Abode of the Author or Composer thereof, the Name and Place of Abode of the Proprietor thereof, and the Time and Place of its first Representation or Performance. [Sidenote: Proprietors of Right of Dramatic Representations shall have all the Remedies given by 3 & 4 W. 4 c. 15] XXI. The Person who shall at any time have the sole Liberty of representing such Dramatic Piece or Musical Composition shall have and enjoy the Remedies given and provided in the said Act of the Third and Fourth Years of the Reign of His late Majesty King William the Fourth, passed to amend the Laws relating to Dramatic Literary Property, during the whole of his Interest therein, as fully as if the same were re-enacted in this Act. [Sidenote: Assignment of Copyright of a Dramatic Piece not to convey the Right of Representation.] XXII. No Assignment of the Copyright of any Book consisting of or containing a Dramatic Piece or Musical Composition shall be holden to convey to the Assignee the Right of representing or performing such Dramatic Piece or Musical Composition, unless an Entry in the said Registry Book shall be made of such Assignment,[1730] wherein shall be expressed the Intention of the Parties that such Right should pass by such Assignment. [Sidenote: Books pirated shall become the Property of the Proprietor of the Copyright, and may be Recovered by Action.] XXIII.[1731] All Copies of any Book wherein there shall be Copyright, and of which Entry shall have been made in the said Registry Book, and which shall have been unlawfully printed or imported without the Consent of the registered Proprietor of such Copyright, in Writing under his Hand first obtained, shall be deemed to be the Property of the Proprietor of such Copyright, and who shall be registered as such, and such registered Proprietor shall, after Demand thereof in Writing, be entitled to sue for and recover the same, or Damages for the Detention thereof, in an Action of Detinue, from any Party who shall detain the same, or to sue for and recover Damages for the Conversion thereof in an Action of Trover. [Sidenote: No Proprietor of Copyright commencing after this Act shall sue or proceed for any Infringement before making Entry in the Book of Registry.] [Sidenote: Proviso for Dramatic Pieces.] XXIV.[1732] No Proprietor of Copyright in any Book which shall be first published after the passing of this Act shall maintain any Action or Suit, at Law or in Equity, or any summary Proceeding, in respect of any Infringement of such Copyright, unless he shall, before commencing such Action, Suit, or Proceeding, have caused an Entry to be made, in the Book of Registry of the Stationers' Company, of such Book, pursuant to this Act: Provided always, that the Omission to make such Entry shall not affect the Copyright in any Book, but only the Right to sue or proceed in respect of the Infringement thereof as aforesaid: Provided also, that nothing herein contained shall prejudice the Remedies which the Proprietor of the sole Liberty of representing any Dramatic Piece shall have by virtue of the Act passed in the Third Year of the Reign of His late Majesty King William the Fourth, to amend the Laws relating to Dramatic Literary Property, or of this Act, although no Entry shall be made in the Book of Registry aforesaid.[1733] [Sidenote: Copyright shall be Personal Property.] XXV. All Copyright shall be deemed Personal Property, and shall be transmissible by Bequest, or, in case of Intestacy, shall be subject to the same Law of Distribution as other Personal Property, and in Scotland shall be deemed to be Personal and Movable Estate. [Sidenote: General Issue.] [Sidenote: Limitation of Actions;] [Sidenote: not to extend to Actions, &c., in respect of the Delivery of Books.] XXVI. _If any Action or Suit shall be commenced or brought against any Person or Persons whomsoever for doing or causing to be done anything in pursuance of this Act, the Defendant or Defendants in such Action may plead the General Issue, and give the special Matter in Evidence; and if upon such Action a Verdict shall be given for the Defendant, or the Plaintiff shall become nonsuited, or discontinue his Action, then the Defendant shall have and recover his full Costs, for which he shall have the same Remedy as a Defendant in any Case by Law hath_;[1734] and all Actions, Suits, Bills, Indictments, or Informations for any Offence that shall be committed against this Act shall be brought, sued, and commenced within Twelve Calendar Months[1735] next after such Offence committed, or else the same shall be void and of none effect; provided that such Limitation of Time shall not extend or be construed to extend to any Actions, Suits, or other Proceedings which under the Authority of this Act shall or may be brought, sued, or commenced for or in respect of any Copies of Books to be delivered for the Use of the British Museum, or of any One of the Four Libraries hereinbefore mentioned. [Sidenote: Saving the Rights of the Universities, and the Colleges of Eton, Westminster, and Winchester.] XXVII. Provided always, That nothing in this Act contained shall affect or alter the Rights of the Two Universities of Oxford and Cambridge, the Colleges or Houses of Learning within the same, the Four Universities in Scotland, the College of the Holy and Undivided Trinity of Queen Elizabeth near Dublin, and the several Colleges of Eton, Westminster, and Winchester, in any Copyrights heretofore and now vested or hereafter to be vested in such Universities and Colleges respectively, anything to the contrary herein contained notwithstanding. [Sidenote: Saving all subsisting Rights, Contracts, and Engagements.] XXVIII. Provided also, That nothing in this Act contained shall affect, alter, or vary any Right subsisting at the Time of passing of this Act, except as herein expressly enacted; and all Contracts, Agreements, and Obligations made and entered into before the passing of this Act, and all Remedies relating thereto, shall remain in full force, any thing herein contained to the contrary notwithstanding. [Sidenote: Extent of the Act.] XXIX. This Act shall extend to the United Kingdom of Great Britain and Ireland, and to every Part of the British Dominions. [Sidenote: Act may be amended this Session.] XXX. _This Act may be amended or repealed by any Act to be passed in the present Session of Parliament._[1736] SCHEDULE TO WHICH THE PRECEDING ACT REFERS. No. 1. FORM of MINUTE of CONSENT to be entered at Stationers' Hall. WE, the undersigned, _A. B._ of ---- the Author of a certain Book, intituled _Y. Z._ [_or_ the personal Representative of the Author, _as the Case may be_], and _C. D._ of ---- do hereby certify, That we have consented and agreed to accept the Benefits of the Act passed in the Fifth Year of the Reign of Her Majesty Queen Victoria, Cap. ----, for the Extension of the Term of Copyright therein provided by the said Act, and hereby declare that such extended Term of Copyright therein is the Property of the said _A. B._ or _C. D._ Dated this ---- Day of ---- 18--. (Signed) _A. B._ Witness _C. D._ To the Registering Officer appointed by the Stationers' Company. No. 2. FORM of REQUIRING ENTRY of PROPRIETORSHIP. I _A. B._ of ---- do hereby certify, That I am the Proprietor of the Copyright of a Book, intituled _Y. Z._, and I hereby require you to make Entry in the Register Book of the Stationers' Company of my Proprietorship of such Copyright, according to the Particulars underwritten. -------+-----------------------+-------------------+-------------- Title | Name of Publisher, | Name and Place | Date of First of | and | of Abode of | Publication. Book. | Place of Publication. | the Proprietor | | | of the Copyright | -------+-----------------------+-------------------+-------------- _Y. Z._| | _A. B._ | -------+-----------------------+-------------------+-------------- Dated this ---- Day of ---- 18--. Witness, _C. D._ ---- (Signed) _A. B._ NO. 3. ORIGINAL ENTRY of PROPRIETORSHIP of COPYRIGHT of a BOOK. --------+----------+----------------+-----------------+-------------- Time of | Title of | Name of the | Name and Place | Date of First making | Book. | Publisher, and | of Abode of the | Publication. the | | Place of | Proprietor of | Entry. | | Publication. | the Copyright. | --------+----------+----------------+-----------------+-------------- |_Y. Z._ | _A. B._ | _C. D._ | --------+----------+----------------+-----------------+-------------- NO. 4. FORM of CONCURRENCE of the PARTY assigning in any BOOK previously registered. I _A. B._ of ---- being the Assigner of the Copyright of the Book hereunder described, do hereby require you to make Entry of the Assignment of the Copyright therein. ---------------+----------------------------+----------------------- Title of Book. | Assigner of the Copyright. | Assignee of Copyright. ---------------+----------------------------+----------------------- _Y. Z._ | _A. B._ | _C. D._ ---------------+----------------------------+----------------------- Dated this ---- Day of ---- 18--. (Signed) _A. B._ No. 5. Date of Entry. Title of Book. Assigner of the Assignee of Copyright. Copyright. [_Set out the Title of the Book, and refer to the Page of the Registry Book in _A. B._ _C. D._ which the original Entry of the Copyright thereof is made._] THE INTERNATIONAL COPYRIGHT ACT, 1844. 7 & 8 VICT. C. 12. An Act to amend the Law relating to International Copyright. [10th May 1844.] [Sidenote: 1 & 2 Vict. c. 59.] [Sidenote: 3 & 4 W. 4. c. 15] [Sidenote: 5 & 6 Vict. c. 45.] [Sidenote: 8 G. 2c. 13.] [Sidenote: 7 G. 3c. 38.] [Sidenote: 17 G. 3 c. 57.] [Sidenote: 6 & 7 W. 4 c. 59.] [Sidenote: 38 G. 3 c. 71.] [Sidenote: 54 G. 3 c. 56.] [Sidenote: Repeal of International Copyright Act.] I. _Whereas by an Act passed in the Session of Parliament held in the First and Second Years of the Reign of Her present Majesty, intituled An Act for securing to Authors in certain Cases the Benefit of international Copyright (and which Act is hereinafter, for the sake of Perspicuity, designated as "the International Copyright Act"), Her Majesty was empowered by Order in Council to direct that the Authors of Books which should after a future Time, to be specified in such Order in Council, be published in any Foreign Country, to be specified in such Order in Council, and their Executors, Administrators, and Assigns, should have the sole Liberty of printing and reprinting such Books within the British Dominions for such Term as Her Majesty should by such Order in Council direct, not exceeding the Term which Authors, being British Subjects, were then, (that is to say) at the Time of passing the said Act, entitled to in respect of Books first published in the United Kingdom; and the said Act contains divers Enactments securing to Authors and their Representatives the Copyright in the Books to which any such Order in Council should extend: And whereas an Act was passed in the Session of Parliament held in the Fifth and Sixth Years of the Reign of Her present Majesty, intituled An Act to amend the Law of Copyright (and which Act is hereinafter, for the sake of Perspicuity, designated as "the Copyright Amendment Act"), repealing various Acts therein mentioned relating to the Copyright of printed Books, and extending, defining, and securing to Authors and their Representatives the Copyright of Books: And whereas an Act was passed in the Session of Parliament held in the Third and Fourth Years of the Reign of His late Majesty King William the Fourth, intituled An Act to amend the Laws relating to Dramatic Literary Property (and which Act is hereinafter, for the sake of Perspicuity, designated as "the Dramatic Literary Property Act"), whereby the sole Liberty of representing or causing to be represented any Dramatic Piece in any Place of Dramatic Entertainment in any Part of the British Dominions, which should be composed and not printed or published by the Author thereof or his Assignee, was secured to such Author or his Assignee; and by the said Act it was enacted, that the Author of any such Production which should thereafter be printed and published, or his Assignee, should have the like sole Liberty of Representation until the End of Twenty-eight Years from the first Publication thereof: And whereas by the said Copyright Amendment Act the Provisions of the said Dramatic Literary Property Act and of the said Copyright Amendment Act were made applicable to Musical Compositions; and it was thereby also enacted, that the sole Liberty of representing or performing, or causing or permitting to be represented or performed, in any Part of the British Dominions, any Dramatic Piece or Musical Composition, should endure and be the Property of the Author thereof and his Assigns for the Term in the said Copyright Amendment Act provided for the Duration of the Copyright in Books, and that the Provisions therein enacted in respect of the Property of such Copyright should apply to the Liberty of representing or performing any Dramatic Piece or Musical Composition: And whereas under or by virtue of the Four several Acts next hereinafter mentioned; (that is to say,) an Act passed in the Eighth Year of the Reign of His late Majesty King George the Second, intituled An Act for the Encouragement of the Arts of designing, engraving, and etching historical and other Prints, by vesting the Properties thereof in the Inventors or Engravers during the Time therein mentioned; an Act passed in the Seventh Year of His late Majesty King George the Third, intituled An Act to amend and render more effectual an Act made in the Eighth Year of the Reign of King George the Second, for Encouragement of the Arts of designing, engraving, and etching historical and other Prints; and for vesting in and securing to Jane Hogarth, Widow, the Property in certain Prints; an Act passed in the Seventeenth Year of the Reign of His late Majesty King George the Third, intituled An Act for more effectually securing the Property of Prints to Inventors and Engravers, by enabling them to sue for and recover Penalties in certain Cases; and an Act passed in the Session of Parliament held in the Sixth and Seventh Years of the Reign of His late Majesty King William the Fourth, intituled An Act to extend the Protection of Copyright in Prints and Engravings to Ireland; (and which said Four several Acts are hereinafter, for the sake of Perspicuity, designated as the Engraving Copyright Acts;) every Person who invents or designs, engraves, etches, or works in Mezzotinto or Chiaro-oscuro, or from his own Work, Design, or Invention causes or procures to be designed, engraved, etched, or worked in Mezzotinto or Chiaro-oscuro any historical Print or Prints, or any Print or Prints of any Portrait, Conversation, Landscape, or Architecture, Map, Chart, or Plan, or any other Print or Prints whatsoever, and every Person who engraves, etches, or works in Mezzotinto or Chiaro-oscuro, or causes to be engraved, etched, or worked, any Print taken from any Picture, Drawing, Model, or Sculpture, either ancient or modern, notwithstanding such Print shall not have been graven or drawn from the original Design of such Graver, Etcher, or Draftsman, is entitled to the Copyright of such Print for the Term of Twenty-eight Years from the first publishing thereof; and by the said several Engraving Copyright Acts it is provided that the Name of the Proprietor shall be truly engraved on each Plate, and printed on every such Print, and Remedies are provided for the Infringement of such Copyright: And whereas under and by virtue of an Act passed in the Thirty-eighth Year of the Reign of His late Majesty King George the Third, intituled An Act for encouraging the Art of making new Models and Casts of Busts and other Things therein mentioned, and of an Act passed in the Fifty-fourth Year of the Reign of His late Majesty King George the Third, intituled An Act to amend and render more effectual an Act of His present Majesty, for encouraging the Art of making new Models and Casts of Busts and other Things therein mentioned, and for giving further Encouragement to such Arts, (and which said Acts are, for the sake of Perspicuity, hereinafter designated as the Sculpture Copyright Acts,) every Person who makes or causes to be made any new and original Sculpture, or Model or Copy or Cast of the Human Figure, any Bust or Part of the Human Figure clothed in Drapery or otherwise, any Animal or Part of any Animal combined with the Human Figure or otherwise, any Subject, being Matter of Invention in Sculpture, any Alto or Basso-Relievo, representing any of the Matters aforesaid, or any Cast from Nature of the Human Figure or Part thereof, or of any Animal or Part thereof, or of any such Subject representing any of the Matters aforesaid, whether separate or combined, is entitled to the Copyright in such new and original Sculpture, Model, Copy, and Cast, for Fourteen Years from first putting forth and publishing the same, and for an additional Period of Fourteen Years in case the original Maker is living at the End of the first Period; and by the said Acts it is provided that the Name of the Proprietor, with the Date of the Publication thereof, is to be put on all such Sculptures, Models, Copies, and Casts, and Remedies are provided for the Infringement of such Copyright: And whereas the Powers vested in Her Majesty by the said International Copyright Act are insufficient to enable Her Majesty to confer upon Authors of Books first published in Foreign Countries Copyright of the like Duration, and with the like Remedies for the Infringement thereof, which are conferred and provided by the said Copyright Amendment Act with respect to Authors of Books first published in the British Dominions; and the said International Copyright Act does not empower Her Majesty to confer any exclusive Right of representing or performing Dramatic Pieces or Musical Compositions first published in Foreign Countries upon the Authors thereof, nor to extend the Privilege of Copyright to Prints and Sculpture first published abroad; and it is expedient to vest increased Powers in Her Majesty in this respect, and for that Purpose to repeal the said International Copyright Act, and to give such other Powers to Her Majesty, and to make such further Provisions, as are hereinafter contained:[1737] the said recited Act herein designated as the International Copyright Act shall be and the same is hereby repealed._[1738] [Sidenote: Her Majesty, by Order in Council, may direct that Authors, &c., of Works first published in Foreign Countries shall have Copyright therein within Her Majesty's Dominions.] II. It shall be lawful for Her Majesty, by any Order of Her Majesty in Council, to direct that, as respects all or any particular Class or Classes of the following Works, (namely,) Books, Prints, Articles of Sculpture, and other Works of Art, to be defined in such Order, which shall after a future Time, to be specified in such Order, be first published in any Foreign Country to be named in such Order, the Authors, Inventors, Designers, Engravers, and Makers thereof respectively, their respective Executors, Administrators, and Assigns, shall have the Privilege of Copyright therein during such Period or respective Periods as shall be defined in such Order, not exceeding, however, as to any of the above-mentioned Works, the Term of Copyright which Authors, Inventors, Designers, Engravers, and Makers of the like Works respectively first published in the United Kingdom may be then entitled to under the hereinbefore recited Acts respectively, or under any Acts which may hereafter be passed in that Behalf. [Sidenote: If the Order applies to Books, the Copyright Law as to Books first published in this Country shall apply to the Books to which the Order relates, with certain Exceptions.] III. In case any such Order shall apply to Books, all and singular the Enactments of the said Copyright Amendment Act, and of any other Act for the Time being in force with relation to the Copyright in Books first published in this Country, shall, from and after the Time so to be specified in that Behalf in such Order, and subject to such Limitation as to the Duration of the Copyright as shall be therein contained, apply to and be in force in respect of the Books to which such Order shall extend, and which shall have been registered as hereinafter is provided, in such and the same Manner as if such Books were first published in the United Kingdom, save and except such of the said Enactments, or such Parts thereof, as shall be excepted in such Order, and save and except such of the said Enactments as relate to the Delivery of Copies of Books at the British Museum, and to or for the Use of the other Libraries mentioned in the said Copyright Amendment Act. [Sidenote: If the Order applies to Prints, Sculptures, &c., the Copyright Law as to Prints or Sculptures first published in this Country shall apply to the Prints, Sculptures, &c., to which such Order relates.] IV. In case any such Order shall apply to Prints, Articles of Sculpture, or to any such other Works of Art as aforesaid, all and singular the Enactments of the said Engraving Copyright Acts and the said Sculpture Copyright Acts, or of any other Act for the Time being in force with relation to the Copyright in Prints or Articles of Sculpture first published in this Country, and of any Act for the Time being in force with relation to the Copyright in any similar Works of Art first published in this Country, shall, from and after the Time so to be specified in that Behalf in such Order, and subject to such Limitation as to the Duration of the Copyright as shall be therein contained respectively, apply to and be in force in respect of the Prints, Articles of Sculpture, and other Works of Art to which such Order shall extend, and which shall have been registered as hereinafter is provided, in such and the same Manner as if such Articles and other Works of Art were first published in the United Kingdom, save and except such of the said Enactments or such Parts thereof as shall be excepted in such Order. [Sidenote: Her Majesty may, by Order in Council, direct that Authors and Composers of Dramatic Pieces and Musical Compositions first publicly represented and performed in Foreign Countries shall have similar Rights in the British Dominions.] V. It shall be lawful for Her Majesty, by any Order of Her Majesty in Council, to direct that the Authors of Dramatic Pieces and Musical Compositions which shall after a future Time, to be specified in such Order, be first publicly represented or performed in any Foreign Country to be named in such Order, shall have the sole Liberty of representing or performing in any Part of the British Dominions such Dramatic Pieces or Musical Compositions during such Period as shall be defined in such Order, not exceeding the Period during which Authors of Dramatic Pieces and Musical Compositions first publicly represented or performed in the United Kingdom may for the Time be entitled by Law to the sole Liberty of representing and performing the same; and from and after the Time so specified in any such last-mentioned Order the Enactments of the said Dramatic Literary Property Act and of the said Copyright Amendment Act, and of any other Act for the Time being in force with relation to the Liberty of publicly representing and performing Dramatic Pieces or Musical Compositions, shall, subject to such Limitation as lo the Duration of the Right conferred by any such Order as shall be therein contained, apply to and be in force in respect of the Dramatic Pieces and Musical Compositions to which such Order shall extend, and which shall have been registered as hereinafter is provided, in such and the same Manner as if such Dramatic Pieces and Musical Compositions had been first publicly represented and performed in the British Dominions, save and except such of the said Enactments or such Parts thereof as shall be excepted in such Order. [Sidenote: Particulars to be observed as to Registry and to Delivery of Copies.] VI. Provided always, That no Author of any Book, Dramatic Piece or Musical Composition, or his Executors, Administrators, or Assigns, and no Inventor, Designer, or Engraver of any Print, or Maker of any Article of Sculpture, or other Work of Art, his Executors, Administrators, or Assigns, shall be entitled to the Benefit of this Act, or of any Order in Council to be issued in pursuance thereof, unless, within a Time or Times to be in that Behalf prescribed in each such Order in Council, such Book, Dramatic Piece, Musical Composition, Print, Article of Sculpture, or other Work of Art, shall have been so registered, and such Copy thereof shall have been so delivered as hereinafter is mentioned; (that is to say,) as regards such Book, and also such Dramatic Piece or Musical Composition, (in the event of the same having been printed,) the Title to the Copy thereof, the Name and Place of Abode of the Author or Composer thereof, the Name and Place of Abode of the Proprietor of the Copyright thereof, the Time and Place of the first Publication, Representation, or Performance thereof, as the Case may be, in the Foreign Country named in the Order in Council under which the Benefits of this Act shall be claimed, shall be entered in the Register Book of the Company of Stationers in London, and One printed Copy of the whole of such Book, and of such Dramatic Piece or Musical Composition, in the event of the same having been printed, and of every Volume thereof, upon the best Paper upon which the largest Number or Impression of the Book, Dramatic Piece, or Musical Composition shall have been printed for Sale, together with all Maps and Prints relating thereto, shall be delivered to the Officer of the Company of Stationers at the Hall of the said Company; and as regards Dramatic Pieces and Musical Compositions in Manuscript, the Title to the same, the Name and Place of Abode of the Author or Composer thereof, the Name and Place of Abode of the Proprietor of the Right of representing or performing the same, and the Time and Place of the first Representation or Performance thereof in the Country named in the Order in Council under which the Benefit of the Act shall be claimed, shall be entered in the said Register Book of the said Company of Stationers in London; and as regards Prints, the Title thereof, the Name and Place of Abode of the Inventor, Designer, or Engraver thereof, the Name of the Proprietor of the Copyright therein, and the Time and Place of the first Publication thereof in the Foreign Country named in the Order in Council under which the Benefits of the Act shall be claimed, shall be entered in the said Register Book of the said Company of Stationers in London, and a Copy of such Print, upon the best Paper upon which the largest Number or Impressions of the Print shall have been printed for Sale, shall be delivered to the Officer of the Company of Stationers at the Hall of the said Company; and as regards any such Article of Sculpture, or any such other Work of Art as aforesaid, a descriptive Title thereof, the Name and Place of Abode of the Maker thereof, the Name of the Proprietor of the Copyright therein, and the Time and Place of its first Publication in the Foreign Country named in the Order in Council under which the Benefit of this Act shall be claimed, shall be entered in the said Register Book of the said Company of Stationers in London; and the Officer of the said Company of Stationers receiving such Copies so to be delivered as aforesaid shall give a Receipt in Writing for the same, and such Delivery shall to all Intents and Purposes be a sufficient Delivery under the Provisions of this Act. [Sidenote: In case of Books published anonymously, the Name of the Publisher to be sufficient.] VII. Provided always, That if a Book be published anonymously it shall be sufficient to insert in the Entry thereof in such Register Book the Name and Place of Abode of the first Publisher thereof, instead of the Name and Place of Abode of the Author thereof, together with a Declaration that such Entry is made either on behalf of the Author or on behalf of such first Publisher, as the Case may require. [Sidenote: The Provisions of the Copyright Amendment Act as regards Entries in the Register Book of the Company of Stationers, &c., to apply to Entries under this Act.] VIII. And be it enacted, That the several Enactments in the said Copyright Amendment Act contained with relation to keeping the said Register Book, and the Inspection thereof, the Searches therein, and the Delivery of certified and stamped Copies thereof, the Reception of such Copies in Evidence, the making of false Entries in the said Book, and the Production in Evidence of Papers falsely purporting to be Copies of Entries in the said Book, the Applications to the Courts and Judges by Persons aggrieved by Entries in the said Book, and the expunging and varying such Entries, shall apply to the Books, Dramatic Pieces, and Musical Compositions, Prints, Articles of Sculpture, and other Works of Art, to which any Order in Council issued in pursuance of this Act shall extend, and to the Entries and Assignments of Copyright and Proprietorship therein, in such and the same Manner as if such Enactments were here expressly enacted in relation thereto, save and except that the Forms of Entry prescribed by the said Copyright Amendment Act may be varied to meet the Circumstances of the Case, and that the Sum to be demanded by the Officer of the said Company of Stationers for making any Entry required by this Act shall be One Shilling only. [Sidenote: As to expunging or varying Entry grounded in wrongful first Publication.] IX. Every Entry made in pursuance of this Act of a first Publication shall be _primâ facie_ Proof of a rightful first Publication; but if there be a wrongful first Publication, and any Party have availed himself thereof to obtain an Entry of a spurious Work, no Order for expunging or varying such Entry shall be made unless it be proved to the Satisfaction of the Court or of the Judge taking cognizance of the Application for expunging or varying such Entry, first, with respect to a wrongful Publication in a Country to which the Author or first Publisher does not belong, and in regard to which there does not subsist with this Country any Treaty of International Copyright, that the Party making the Application was the Author or first Publisher, as the Case requires; second, with respect to a wrongful first Publication either in the Country where a rightful first Publication has taken place, or in regard to which there subsists with this Country a Treaty of International Copyright, that a Court of competent Jurisdiction in any such country where such wrongful first Publication has taken place has given Judgment in favour of the Right of the Party claiming to be the Author or first Publisher. [Sidenote: Copies of Books wherein Copyright is subsisting under this Act printed in Foreign Countries other than those wherein the Book was first published prohibited to be imported.] X. All Copies of Books wherein there shall be any subsisting Copyright under or by virtue of this Act, or of any Order in Council made in pursuance thereof, printed or reprinted in any Foreign Country except that in which such Books were first published, shall be and the same are hereby absolutely prohibited to be imported into any Part of the British Dominions, except by or with the Consent of the registered Proprietor of the Copyright thereof, or his Agent authorised in Writing, and if imported contrary to this Prohibition the same and the Importers thereof shall be subject to the Enactments in force relating to Goods prohibited to be imported by any Act relating to the Customs; and as respects any such Copies so prohibited to be imported, and also as respects any Copies unlawfully printed in any Place whatsoever of any Books wherein there shall be any such subsisting Copyright as aforesaid, any Person who shall in any Part of the British Dominions import such prohibited or unlawfully printed Copies, or who, knowing such Copies to be so unlawfully imported or unlawfully printed, shall sell, publish, or expose to sale or hire, or shall cause to be sold, published, or exposed to sale or hire, or have in his Possession for sale or hire, any such Copies so unlawfully imported or unlawfully printed, such Offender shall be liable to a special Action on the Case at the Suit of the Proprietor of such Copyright, to be brought and prosecuted in the same Courts and in the same Manner, and with the like Restrictions upon the Proceedings of the Defendant, as are respectively prescribed in the said Copyright Amendment Act with relation to Actions thereby authorised to be brought by Proprietors of Copyright against Persons importing or selling Books unlawfully printed in the British Dominions. [Sidenote: Officer of Stationers' Company to deposit Books, &c., in the British Museum.] XI. The said Officer of the said Company of Stationers shall receive at the Hall of the said Company every Book, Volume, or Print so to be delivered as aforesaid, and within One Calendar Month after receiving such Book, Volume, or Print shall deposit the same in the Library of the British Museum. [Sidenote: Second or subsequent Editions.] XII. Provided always, That it shall not be requisite to deliver to the said Officer of the said Stationers' Company any printed Copy of the Second or of any subsequent Edition of any Book or Books so delivered as aforesaid, unless the same shall contain Additions or Alterations. [Sidenote: Orders in Council may specify different Periods for different Foreign Countries and for different Classes of Works.] XIII. The respective Terms to be specified by such Orders in Council respectively for the Continuance of the Privilege to be granted in respect of Works to be first published in Foreign Countries may be different for Works first published in different Foreign Countries and for different Classes of such Works; and the Times to be prescribed for the Entries to be made in the Register Book of the Stationers' Company, and for the Deliveries of the Books and other Articles to the said Officer of the Stationers' Company, as hereinbefore is mentioned, may be different for different Foreign Countries and for different Classes of Books or other Articles. [Sidenote: No Order in Council to have any Effect unless it states that reciprocal Protection is secured.] XIV. _Provided always, That no such Order in Council shall have any Effect unless it shall be therein stated, as the Ground for issuing the same, that due Protection has been secured by the Foreign Power so named in such Order in Council for the Benefit of Parties interested in Works first published in the Dominions of Her Majesty similar to those comprised in such Order._[1739] [Sidenote: Orders in Council to be published in Gazette, and to have same Effect as this Act.] XV. Every Order in Council to be made under the Authority of this Act shall as soon as may be after the making thereof by Her Majesty in Council be published in the London Gazette, and from the Time of such Publication shall have the same Effect as if every Part thereof were included in this Act. [Sidenote: Orders in Council to be laid before Parliament.] XVI. A Copy of every Order of Her Majesty in Council made under this Act shall be laid before both Houses of Parliament within Six Weeks after issuing the same, if Parliament be then sitting, and if not, then within Six Weeks after the commencement of the then next Session of Parliament. [Sidenote: Orders in Council may be revoked.] XVII. _It shall be lawful for Her Majesty by an Order in Council from Time to Time to revoke or alter any Order in Council previously made under the Authority of this Act, but nevertheless without Prejudice to any Rights acquired previously to such Revocation or Alteration._[1740] [Sidenote: Translations.] XVIII. _Provided always, That nothing in this Act contained shall be construed to prevent the printing, Publication, or Sale of any Translation of any Book the Author whereof and his Assigns may be entitled to the Benefit of this Act._[1741] [Sidenote: Authors of Works first published in Foreign Countries not entitled to Copyright except under this Act.] XIX.[1742] Neither the Author of any Book, nor the Author or Composer of any Dramatic Piece or Musical Composition, nor the Inventor, Designer, or Engraver of any Print, nor the Maker of any Article of Sculpture, or of such other Work of Art as aforesaid, which shall after the passing of this Act be first published out of Her Majesty's Dominions, shall have any Copyright therein respectively, or any exclusive Right to the public Representation or Performance thereof, otherwise than such (if any) as he may become entitled to under this Act. [Sidenote: Interpretation Clause.] XX. In the Construction of this Act the Word "Book" shall be construed to include "Volume," "Pamphlet," "Sheet of Letterpress," "Sheet of Music," "Map," "Chart," or "Plan;" and the Expression "Articles of Sculpture " shall mean all such Sculptures, Models, Copies, and Casts as are described in the said Sculpture Copyright Acts, and in respect of which the Privileges of Copyright are thereby conferred; and the Words "printing" and "reprinting," shall include engraving and any other Method of multiplying Copies; and the Expressions "Order of Her Majesty in Council," "Order in Council," and " Order," shall respectively mean Order of Her Majesty acting by and with the Advice of Her Majesty's Most Honourable Privy Council; and the Expression "Officer of the Company of Stationers" shall mean the Officer appointed by the said Company of Stationers for the Purposes of the said Copyright Amendment Act; and in describing any Persons or Things any Word importing the Plural Number shall mean also One Person or Thing, and any Word importing the Singular Number shall include several Persons or Things, and any Word importing the Masculine shall include also the Feminine Gender; unless in any of such Cases there shall be something in the Subject or Context repugnant to such Construction. [Sidenote: Act may be repealed this Session.] XXI. _This Act may be amended or repealed by any Act to be passed in this present Session of Parliament._[1743] THE COLONIAL COPYRIGHT ACT, 1847.[1744] 10 & 11 VICT. C. 95. An Act to amend the Law relating to the Protection in the Colonies of Works entitled to Copyright in the United Kingdom. [22nd July 1847.] [Sidenote: 5 & 6 Vict. c. 45.] [Sidenote: 8 & 9 Vict. c. 93.] [Sidenote: Her Majesty may suspend in certain Cases the Prohibitions against the Admission of pirated Books into the Colonies in certain Cases.] I. _Whereas by an Act passed in the Session of Parliament holden in the Fifth and Sixth Years of Her present Majesty, intituled An Act to amend the Law of Copyright, it is amongst other things enacted, that it shall not be lawful for any Person not being the Proprietor of the Copyright, or some Person authorised by him, to import into any Part of the United Kingdom, or into any other Part of the British Dominions, for Sale or Hire, any printed Book first composed or written or printed or published in any Part of the United Kingdom wherein there shall be Copyright, and reprinted in any Country or Place whatsoever out of the British Dominions: And whereas by an Act passed in the Session of Parliament holden in the Eighth and Ninth Years of the Reign of Her present Majesty, intituled An Act to regulate the Trade of the British Possessions abroad, Books wherein the Copyright is subsisting, first composed or written or printed in the United Kingdom, and printed or reprinted in any other Country, are absolutely prohibited to be imported into the British Possessions abroad: And whereas by the said last-recited Act it is enacted, that all Laws, Bye-Laws, Usages, or Customs in practice, or endeavoured or pretended to be in force or practice in any of the British Possessions in America, which are in anywise repugnant to the said Act or to any Act of Parliament made or to be made in the United Kingdom, so far as such Act shall relate to and mention the said Possessions, are and shall be null and void to all Intents and Purposes whatsoever:_[1745] In case the Legislature or proper legislative Authorities in any British Possession shall be disposed to make due Provision for securing or protecting the Rights of British Authors in such Possession, and shall pass an Act or make an Ordinance for that Purpose, and shall transmit the same in the proper Manner to the Secretary of State, in order that it may be submitted to Her Majesty, and in case Her Majesty shall be of opinion that such Act or Ordinance is sufficient for the Purpose of securing to British Authors reasonable Protection within such Possession, it shall be lawful for Her Majesty, if She think fit so to do, to express Her Royal Approval of such Act or Ordinance, and thereupon to issue an Order in Council declaring that so long as the Provisions of such Act or Ordinance continue in force within such Colony the Prohibitions contained in the aforesaid Acts, and hereinbefore recited, and any Prohibitions contained in the said Acts or in any other Acts against the importing, selling, letting out to hire, exposing for Sale or Hire, or possessing Foreign Reprints of Books first composed, written, printed, or published in the United Kingdom, and entitled to Copyright therein, shall be suspended so far as regards such Colony; and thereupon such Act or Ordinance shall come into operation, except so far as may be otherwise provided therein, or as may be otherwise directed by such Order in Council, any thing in the said last-recited Act or in any other Act to the contrary notwithstanding. [Sidenote: Orders in Council to be published in Gazette. Orders in Council and the Colonial Acts or Ordinances to be laid before Parliament. Act may be amended, &c.] II. Every such Order in Council shall, within One Week after the issuing thereof, be published in the _London Gazette_, and a Copy thereof, and of every such Colonial Act or Ordinance so approved as aforesaid by Her Majesty, shall be laid before both Houses of Parliament within Six Weeks after the issuing of such Order, if Parliament be then sitting, or if Parliament be not then sitting, then within Six Weeks after the opening of the next Session of Parliament. III. _And be it enacted, This Act may be amended or repealed by any Act to be passed in the present Session of Parliament._[1746] COPYRIGHT IN DESIGNS ACT, 1850. 13 & 14 VICT. C. 104. An Act to extend and amend the Acts relating to the Copyright of Designs. [14th August 1850.] [Sidenote: Registration of Sculpture, Models, &c.] VI. _The Registrar of Designs, upon Application by or on behalf of the Proprietor of any Sculpture, Model, Copy, or Cast within the Protection of the Sculpture Copyright Acts, and upon being furnished with such Copy, Drawing, Print, or Description, in Writing or in Print, as in the Judgment of the said Registrar shall be sufficient to identify the particular Sculpture, Model, Copy, or Cast in respect of which Registration is desired, and the Name of the Person claiming to be Proprietor, together with his Place of Abode or Business or other Place of Address, or the Name, Style, or Title of the Firm under which he may be trading, shall register such Sculpture, Model, Copy, or Cast in such Manner and Form as shall from Time to Time be prescribed or approved by the Board of Trade for the whole or any Part of the Term during which Copyright in such Sculpture, Model, Copy, or Cast may or shall exist under the Sculpture Copyright Acts; and whenever any such Registration shall be made, the said Registrar shall certify under his Hand and Seal of Office, in such Form as the said Board shall direct or approve, the Fact of such Registration, and the Date of the same, and the Name of the registered Proprietor, or the Style or Title of the Firm under which such Proprietor may be trading, together with his Place of Abode or Business or other Place of Address._[1747] [Sidenote: Benefits conferred by Registration of Sculpture, &c.] VII. _If any Person shall, during the Continuance of the Copyright in any Sculpture, Model, Copy, or Cast which shall have been so registered as aforesaid, make, import, or cause to be made, imported, exposed for Sale, or otherwise disposed of, any pirated Copy or pirated Cast of any such Sculpture, Model, Copy, or Cast, in such Manner and under such Circumstances as would entitle the Proprietor to a special Action on the case under the Sculpture Copyright Acts, the Person so offending shall forfeit for every such Offence a Sum not less than Five Pounds and not exceeding Thirty Pounds to the Proprietor of the Sculpture, Model, Copy, or Cast whereof the Copyright shall have been infringed; and for the Recovery of any such Penalty the Proprietor of the Sculpture, Model, Copy, or Cast which shall have been so pirated shall have and be entitled to the same Remedies as are provided for the Recovery of Penalties incurred under the Designs Act, 1842: Provided always, that the Proprietor of any Sculpture, Model, Copy, or Cast which shall be registered under this Act shall not be entitled to the Benefit of this Act, unless every Copy or Cast of such Sculpture, Model, Copy, or Cast which shall be published by him after such Registration shall be marked with the Word "registered" and with the Date of Registration._[1748] THE INTERNATIONAL COPYRIGHT ACT, 1852. 15 & 16 VICT. C. 12. An Act _to enable Her Majesty to carry into effect a Convention with France on the subject of Copyright_; to extend and explain the International Copyright Acts: and to explain the Acts relating to Copyright in Engravings. [28th May 1852.] Whereas an Act was passed in the Seventh Year of the Reign of Her present Majesty, intituled An Act to amend the Law relating to International Copyright, hereinafter called "The International Copyright Act": And whereas a Convention has lately been concluded between Her Majesty and the French Republic, for extending in each Country the Enjoyment of Copyright in Works of Literature and the Fine Arts first published in the other, and for certain Reductions of Duties now levied on Books, Prints, and Musical Works published in France: And whereas certain of the Stipulations on the Part of Her Majesty contained in the said Treaty require the Authority of Parliament: And whereas it is expedient that such Authority should be given, and that Her Majesty should be enabled to make similar Stipulations in any Treaty on the Subject of Copyright which may hereafter be concluded with any Foreign Power: Be it enacted as follows: I. _The 18th Section of 7 Vict. c. 12 shall be repealed so far as the same is inconsistent with the provisions hereinafter contained._ II. _Her Majesty may by Order in Council[1749] direct that the Authors of Books which are after a future Time to be specified in such Order, published in any foreign Country to be named in such Order, their Executors, Administrators, and Assigns, shall, subject to the Provisions hereinafter contained or referred to, be empowered to prevent the Publication in the British Dominions of any Translations of such Books not authorised by them, for such Time as may be specified in such Order, not extending beyond the Expiration of five Years from the Time at which the authorised Translations of such Books hereinafter mentioned are respectively first published, and in the case of Books published in Parts not extending as to each Part beyond the Expiration of Five Years from the Time at which the authorised Translation of such Part is first published._ III. _Subject to any Provisions or Qualifications contained in such Order and to the provisions herein contained or referred to, the Laws and Enactments for the Time being in force for the purpose of preventing the Infringement of Copyright in Books published in the British Dominions, shall be applied for the Purpose of preventing the publication of Translations of the Books to which such Order extends which are not sanctioned by the Authors of such Books, except only such Parts of the said Enactments as relate to the Delivery of Copies of Books for the Use of the British Museum and for the Use of the other Libraries therein referred to._ IV. _Her Majesty may by Order in Council direct that Authors of Dramatic Pieces which are after a future Time to be specified in such Order, first publicly represented in any Foreign Country, to be named in such Order, their Executors, Administrators, and Assigns, shall, subject to the Provisions hereinafter mentioned or referred to, be empowered to prevent the Representation in the British Dominions of any Translation of such Dramatic Pieces not authorised by them, for such Time as may be specified in such Order, not extending beyond the Expiration of Five Years from the Time at which the Authorised Translations of such Dramatic Pieces hereinafter mentioned are first published or publicly represented._ V. _Subject to any Provisions or Qualifications contained in such last-mentioned Order and to the Provisions hereinafter contained or referred to, the Laws and Enactments for the Time being in force for ensuring to the Author of any Dramatic Piece first publicly represented in the British Dominions, the sole Liberty of representing the same shall be applied for the Purpose of preventing the Representation of any Translations of the Dramatic Pieces to which such last-mentioned Order extends, which are not sanctioned by the Authors thereof._[1750] VI. Nothing herein contained shall be so construed as to prevent fair Imitations or Adaptations to the English Stage of any Dramatic Piece or Musical Composition published in any Foreign Country. VII. Notwithstanding any thing in the said International Copyright Act or in this Act contained any Article of Political Discussion which has been published in any Newspaper or Periodical in a Foreign Country may, if the source from which the same is taken be acknowledged, be republished or translated in any Newspaper or Periodical in this Country: and any Article relating to any other Subject which has been so published as aforesaid may, if the source from which the same is taken be acknowledged, be republished or translated in like Manner, unless the Author has signified his Intention of preserving the Copyright therein and the Right of Translating the same in some conspicuous Part of the Newspaper or Periodical in which the same was first published, in which case the same shall without the Formalities required by the next following Section, receive the same Protection as is by virtue of the International Copyright Act or this Act extended to Books. VIII. _No Author, or his Executors, Administrators, or Assigns shall be entitled to the Benefit of this Act, or of any Order in Council issued in pursuance thereof, in respect of the Translation of any Book or Dramatic Piece, if the following Requisitions are not complied with_; (_that is to say_) 1. _The original Work from which the Translation is to be made must be registered and a Copy thereof deposited in the United Kingdom in the manner required for Original Works by the said International Copyright Act within Three Calendar Months of its First Publication in the Foreign Country:_ 2. _The Author must notify on the Title Page of the original Work, or if it is published in Parts on the Title Page of the first Part, or if there is no Title Page on some conspicuous Part of the Work, that it is his Intention to reserve the Right of Translating it:_ 3. _The Translation sanctioned by the Author, or a Part thereof, must be published either in the country mentioned in the Order in Council, by virtue of which it is to be protected, or in the British Dominions, not later than One Year after the Registration and Deposit in the United Kingdom of the original Work, and the whole of such Translation must be published within Three Years of such Registration and Deposit:_ 4. _Such Translation must be registered, and a Copy thereof deposited in the United Kingdom within a Time to be mentioned in that Behalf in the Order by which it is protected, and in the Manner provided by the said International Copyright Act for the Registration and Deposit of Original Works:_ 5. _In the Case of Books published in Parts each Part of the original Work must be registered and deposited in this Country in the Manner required by the said International Copyright Act within Three Months after the first Publication thereof in the Foreign Country:_ 6. _In the Case of Dramatic Pieces the Translation sanctioned by the Author must be published within Three Calendar Months of the Registration of the Original Work:_ 7. _The above Requisitions shall apply to Articles originally published in Newspapers or Periodicals, if the same be afterwards published in separate form, but shall not apply to such Articles as originally published._[1751] IX. All Copies of any Works of Literature or Art wherein there is any subsisting Copyright by virtue of the International Copyright Act and this Act, or of any Order in Council made in pursuance of such Acts or either of them, and which are printed, reprinted, or made in any Foreign Country, except that in which such Work shall be first published, and all unauthorised Translations of any Book or Dramatic Piece, the Publication or public Representation in the British Dominions of Translations whereof not authorised as in this Act mentioned shall for the Time being be prevented under any Order in Council made in pursuance of this Act, are hereby absolutely prohibited to be imported into any Part of the British Dominions, except by, or with the Consent of the registered Proprietor of the Copyright 6f such Work or of such Book or Piece, or his Agent authorised in Writing; and the Provision of 5 & 6 Vict. c. 45, for the Forfeiture, Seizure, and Destruction of any printed Book first published in the United Kingdom wherein there shall be Copyright, and reprinted in any Country out of the British Dominions, and imported into any Part of the British Dominions by any Person not being the Proprietor of the Copyright, or a Person authorised by such Proprietor, shall extend and be applicable to all Copies of any Works of Literature and Art, and to all Translations, the Importation whereof into any Part of the British Dominions is prohibited under this Act. X. The Provisions hereinbefore contained shall be incorporated with the International Copyright Act, and shall be read and construed therewith as One Act. XI. [_Clause dispensing with a further Order in Council in respect of the Convention with France_, Rep. Int. Cop. Act, 1886, sec. 12]. XII., XIII. [_Clauses dealing with Duties on imported Works_, Rep. Stat. Law Rev. Act, 1875]. XIV. And Whereas by the Four several Acts of Parliament following; (that is to say) 8 Geo. II. c. 13; 7 Geo. III. c. 38; 17 Geo. III. c. 57; 6 & 7 Will. IV. c. 59, Provision is made for securing to every Person who invents or designs, engraves, etches, or works in Mezzotinto or Chiaro oscuro, or, from his own Work, Design, or Invention, causes or procures to be designed, engraved, etched, or worked in Mezzotinto or Chiaro oscuro any Historical Print or Prints, or any Print or Prints of any Portrait, Conversation, Landscape, or Architecture, Map, Chart or Plan, or any other Print or Prints whatsoever, and to every Person who engraves, etches, or works in Mezzotinto or Chiaro oscuro, or causes to be engraved, etched, or worked, any Print taken from any Picture, Drawing, Model, or Sculpture, notwithstanding such Print has not been graven or drawn from his own original Design, certain Copyrights therein defined: And whereas doubts are entertained whether the Provisions of the said Acts extend to Lithographs and certain other Impressions, and it is expedient to remove such Doubts: It is hereby declared, That the Provisions of the said Acts are intended to include Prints taken by Lithography, or any other Mechanical Process by which Prints or Impressions of Drawings or Designs are capable of being multiplied indefinitely, and the said Acts shall be construed accordingly. THE FINE ARTS COPYRIGHT ACT, 1862. 25 & 26 VICT. C. 68. An Act for amending the Law relating to Copyright in Works of the Fine Arts, and for repressing the Commission of Fraud in the Production and Sale of such Works. [29th July 1862.] Whereas by Law, as now established, the Authors of Paintings, Drawings, and Photographs have no Copyright in such their Works, and it is expedient that the Law should in that respect be amended: [Sidenote: Copyright in Works hereafter made or sold to vest in the Author for his Life and for Seven Years after his Death.] I. The Author, being a British Subject or resident[1752] within the Dominions of the Crown, of every original Painting, Drawing, and Photograph[1753] which shall be or shall have been made either in the British Dominions or elsewhere, and which shall not have been sold or disposed of before the Commencement of this Act, and his Assigns, shall have the sole and exclusive Right of copying, engraving, reproducing, and multiplying such Painting or Drawing, and the Design thereof,[1754] or such Photograph, and the Negative thereof, by any Means and of any Size, for the Term of the natural Life of such Author, and Seven Years after his Death; provided that when any Painting or Drawing, or the Negative of any Photograph, shall for the First Time after the passing of this Act be sold or disposed of,[1755] or shall be made or executed for or on behalf of any other Person for a good or a valuable Consideration,[1756] the Person so selling or disposing of or making or executing the same shall not retain the Copyright thereof, unless it be expressly reserved to him by Agreement in Writing, signed, at or before the Time of such Sale or Disposition, by the Vendee or Assignee of such Painting or Drawing, or of such Negative of a Photograph, or by the Person for or on whose Behalf the same shall be so made or executed, but the Copyright shall belong to the Vendee or Assignee oi such Painting or Drawing, or of such Negative of a Photograph, or to the Person for or on whose Behalf the same shall have been made or executed; nor shall the Vendee or Assignee thereof be entitled to any such Copyright, unless, at or before the Time of such Sale or Disposition, an Agreement in Writing, signed by the Person so selling or disposing of the same, or by his Agent duly authorised, shall have been made to that Effect. [Sidenote: Copyright not to prevent the Representation of the same Subjects in other Works. Assignments, Licences, &c., to be in Writing.] II. Nothing herein contained shall prejudice the Right of any Person to copy or use any Work in which there shall be no Copyright, or to represent any Scene or Object, notwithstanding that there may be Copyright in some Representation of such Scene or Object. III. All Copyright under this Act shall be deemed Personal or Movable Estate, and shall be assignable at Law, and every Assignment thereof, and every License to use or copy by any Means or Process the Design or Work which shall be the subject of such Copyright, shall be made by some Note or Memorandum in Writing, to be signed by the Proprietor of the Copyright, or by his Agent appointed for that Purpose in Writing. [Sidenote: Register of Proprietors of Copyright in Paintings, Drawings, and Photographs to be kept at Stationers' Hall as in 5 & 6 Vict. c. 45.] IV.[1757] There shall be kept at the Hall of the Stationers' Company by the Officer appointed by the said Company for the Purposes of the Act passed in the Sixth Year of Her present Majesty, intituled An Act to amend the Law of Copyright, a Book or Books, entitled "The Register of Proprietors of Copyright in Paintings, Drawings, and Photographs," wherein shall be entered a Memorandum of every Copyright to which any Person shall be entitled under this Act, and also of every subsequent Assignment of any such Copyright; and such Memorandum shall contain a Statement of the Date of such Agreement or Assignment, and of the Names of the Parties thereto, and of the Name and Place of Abode of the Person in whom such Copyright shall be vested by virtue thereof, and of the Name and Place of Abode of the Author of the Work in which there shall be such Copyright, together with a short Description of the Nature and Subject of such Work, and in addition thereto, if the Person registering shall so desire, a Sketch, Outline, or Photograph of the said Work, and no Proprietor of any such Copyright shall be entitled to the Benefit of this Act until such Registration, and no Action shall be sustainable nor any Penalty be recoverable in respect of anything done before Registration. [Sidenote: Certain Enactments of 5 & 6 Vict. c. 45 to apply to the Books to be kept under this Act.] V. The several Enactments in the said Act of the Sixth Year of Her present Majesty contained, with relation to keeping the Register Book thereby required, and the Inspection thereof, the Searches therein and the Delivery of certified and stamped Copies thereof, the Reception of such Copies in Evidence, the making of false Entries in the said Book, and the Production in Evidence of Papers falsely purporting to be Copies of Entries in the said Book, the Application to the Courts and Judges by Persons aggrieved by Entries in the said Book, and the expunging and varying such Entries shall apply to the Book or Books to be kept by virtue of this Act, and to the Entries and Assignments of Copyright and Proprietorship therein under this Act, in such and the same Manner as if such Enactments were here expressly enacted in relation thereto, save and except that the Forms of Entry prescribed by the said Act of the Sixth Year of Her present Majesty may be varied to meet the Circumstances of the Case, and that the Sum to be demanded by the Officer of the said Company of Stationers for making any Entry required by this Act shall be One Shilling only. [Sidenote: Penalties on Infringement of Copyright.] VI. If the Author of any Painting, Drawing, or Photograph in which there shall be subsisting Copyright, after having sold or disposed of such Copyright, or if any other Person, not being the Proprietor for the Time being of Copyright in any Painting, Drawing, or Photograph, shall, without the Consent of such Proprietor, repeat, copy, colourably imitate, or otherwise multiply for Sale, Hire, Exhibition, or Distribution, or cause or procure to be repeated, copied, colourably imitated, or otherwise multiplied for Sale, Hire, Exhibition, or Distribution, any such Work or the Design thereof, or, knowing that any such Repetition, Copy, or other Imitation has been unlawfully made,[1758] shall import into any Part of the United Kingdom, or sell, publish, let to Hire, exhibit, or distribute, or offer for Sale, Hire, Exhibition, or Distribution, or cause or procure to be imported, sold, published, let to Hire, distributed, or offered for Sale, Hire, Exhibition, or Distribution, any Repetition, Copy, or Imitation of the said Work, or of the Design thereof, made without such Consent as aforesaid, such Person for every such Offence[1759] shall forfeit to the Proprietor of the Copyright for the Time being a Sum not exceeding Ten Pounds[1760]; and all such Repetitions, Copies, and Imitations made without such Consent as aforesaid, and all Negatives of Photographs made for the Purpose of obtaining such Copies, shall be forfeited to the Proprietor of the Copyright. [Sidenote: Penalties on fraudulent Productions and Sales.] VII. No Person shall do or cause to be done any or either of the following Acts; that is to say: First, no Person shall fraudulently sign or otherwise affix, or fraudulently cause to be signed or otherwise affixed, to or upon any Painting, Drawing, or Photograph, or the Negative thereof, any Name, Initials, or Monogram: Secondly, no Person shall fraudulently sell, publish, exhibit, or dispose of, or offer for Sale, Exhibition, or Distribution, any Painting, Drawing, or Photograph, or Negative of a Photograph, having thereon the Name, Initials, or Monogram of a Person who did not execute or make such Work: Thirdly, no Person shall fraudulently utter, dispose of, or put off, or cause to be uttered or disposed of, any Copy or colourable Imitation of any Painting, Drawing, or Photograph, or Negative of a Photograph, whether there shall be subsisting Copyright therein or not, as having been made or executed by the Author or Maker of the original Work from which such Copy or Imitation shall have been taken: Fourthly, where the Author or Maker of any Painting, Drawing, or Photograph, or Negative of a Photograph, made either before or after the passing of this Act, shall have sold or otherwise parted with the Possession of such Work, if any Alteration shall afterwards be made therein by any other Person, by Addition or otherwise, no Person shall be at liberty, during the Life of the Author or Maker of such Work, without his Consent, to make or knowingly to sell or publish, or offer for Sale, such Work or any Copies of such Work so altered as aforesaid, or of any Part thereof, as or for the unaltered Work of such Author or Maker: [Sidenote: Penalties.] Every Offender under this Section shall, upon Conviction, forfeit to the Person aggrieved a Sum not exceeding Ten Pounds, or not exceeding double the full Price, if any, at which all such Copies, Engravings, Imitations, or altered Works shall have been sold or offered for Sale; and all such Copies, Engravings, Imitations, or altered Works shall be forfeited to the Person, or the Assigns or legal Representatives of the Person, whose Name, Initials, or Monogram shall be so fraudulently signed or affixed thereto, or to whom such spurious or altered Work shall be so fraudulently or falsely ascribed as aforesaid: Provided always, that the Penalties imposed by this Section shall not be incurred unless the Person whose Name, Initials, or Monogram shall be so fraudulently signed or affixed, or to whom such spurious or altered Work shall be so fraudulently or falsely ascribed as aforesaid, shall have been living at or within Twenty Years next before the Time when the Offence may have been committed. [Sidenote: Recovery of pecuniary Penalties.] VIII. All pecuniary Penalties which shall be incurred, and all such unlawful Copies, Imitations, and all other Effects and Things as shall have been forfeited by Offenders, pursuant to this Act, and pursuant to any Act for the Protection of Copyright Engravings, may be recovered by the Person hereinbefore and in any such Act as aforesaid empowered to recover the same respectively, and hereinafter called the Complainant or the Complainer, as follows: [Sidenote: In England and Ireland.] [Sidenote: In Scotland.] In England and Ireland, either by Action against the Party offending, or by summary Proceeding before any Two Justices having Jurisdiction where the Party offending resides: In Scotland by Action before the Court of Session in ordinary Form, or by summary Action before the Sheriff of the County where the Offence may be committed or the Offender resides, _who, upon Proof of the Offence or Offences, either by Confession of the Party offending, or by the Oath or Affirmation of One or more credible Witnesses, shall convict the Offender, and find him liable to the Penalty or Penalties aforesaid, as also in Expenses, and it shall be lawful for the Sheriff in pronouncing such Judgment for the Penalty or Penalties and Costs, to insert in such Judgment a Warrant, in the event of such Penalty or Penalties and Costs not being paid, to levy and recover the Amount of the same by Poinding: Provided always, that it shall be lawful to the Sheriff, in the event of his dismissing the Action and assoilzieing the Defender, to find the Complainer liable in Expenses_,[1761] and any Judgment so to be pronounced by the Sheriff in such summary Application shall be final and conclusive, and not subject to Review by _Advocation_,[1762] Suspension, Reduction, or otherwise. [Sidenote: Superior Courts of Record in which any Action is pending may make an Order for an Injunction, Inspection, or Account.] IX. In any Action in any of Her Majesty's Superior Courts of Record at Westminster and in Dublin, for the Infringement of any such Copyright as aforesaid, it shall be lawful for the Court in which such Action is pending, if the Court be then sitting, or if the Court be not sitting then for a Judge of such Court, on the Application of the Plaintiff or Defendant respectively, to make such Order for an Injunction, Inspection, or Account, and to give such Direction respecting such Action, Injunction, Inspection, and Account, and the Proceedings therein respectively, as to such Court or Judge may seem fit. [Sidenote: Importation of pirated Works prohibited.] [Sidenote: Application in such Cases of Customs Acts.] X. All Repetitions, Copies, or Imitations of Paintings, Drawings, or Photographs, wherein or in the Design whereof there shall be subsisting Copyright under this Act, and all Repetitions, Copies, and Imitations of the Design of any such Painting or Drawing, or of the Negative of any such Photograph, which, contrary to the Provisions of this Act, shall have been made in any Foreign State, or in any Part of the British Dominions, are hereby absolutely prohibited to be imported into any Part of the United Kingdom, except by or with the Consent of the Proprietor of the Copyright thereof, or his Agent authorised in Writing; and if the Proprietor of any such Copyright, or his Agent, shall declare that any Goods imported are Repetitions, Copies, or Imitations of any such Painting, Drawing, or Photograph, or of the Negative of any such Photograph, and so prohibited as aforesaid, then such Goods may be detained by the Officers of Her Majesty's Customs. [Sidenote: Saving of Right to bring Action for Damages.] XI. If the Author of any Painting, Drawing, or Photograph, in which there shall be subsisting Copyright, after having sold or otherwise disposed of such Copyright, or if any other Person, not being the Proprietor for the Time being of such Copyright, shall, without the Consent of such Proprietor, repeat, copy, colourably imitate, or otherwise multiply, or cause or procure[1763] to be repeated, copied, colourably imitated, or otherwise multiplied, for Sale, Hire, Exhibition, or Distribution, any such Work or the Design thereof, or the Negative of any such Photograph, or shall import or cause to be imported into any Part of the United Kingdom, or sell, publish, let to Hire, exhibit, or distribute, or offer for Sale, Hire, Exhibition, or Distribution, or cause or procure to be sold, published, let to Hire, exhibited, or distributed, or offered for Sale, Hire, Exhibition, or Distribution, any Repetition, Copy, or Imitation, of such Work, or the Design thereof, or the Negative of any such Photograph, made without such Consent as aforesaid, then every such Proprietor, in addition to the Remedies hereby given for the Recovery of any such Penalties, and Forfeiture of any such Things as aforesaid, may recover Damages by and in a Special Action on the Case, to be brought against the Person so offending, and may in such Action recover and enforce the Delivery to him of all unlawful Repetitions, Copies, and Imitations, and Negatives of Photographs, or may recover Damages for the Retention or Conversion thereof: Provided that nothing herein contained, nor any Proceeding, Conviction, or Judgment, for any Act hereby forbidden, shall affect any Remedy which any Person aggrieved by such Act may be entitled to either at Law or in Equity. [Sidenote: Provisions of 7 & 8 Vict. c. 12 to be considered as included in this Act.] XII. This Act shall be considered as including the Provisions of the Act passed in the Session of Parliament held in the Seventh and Eighth Years of Her present Majesty, intituled An Act to amend the Law relating to International Copyright, in the same Manner as if such Provisions were Part of this Act. THE INTERNATIONAL COPYRIGHT ACT, 1875. 38 VICT. C. 12. An Act to amend the Law relating to International Copyright. [13th May 1875.] [Sidenote: 15 Vict. c. 12.] _Whereas by an Act passed in the fifteenth year of the reign of Her present Majesty, chapter twelve, intituled "An Act to enable Her Majesty to carry into effect a convention with France on the subject of copyright; to extend and explain the International Copyright Acts; and to explain the Acts relating to copyright in engravings" it is enacted, that "Her Majesty may, by Order in Council, direct that authors of dramatic pieces which are, after a future time, to be specified in such order, first publicly represented in any foreign country, to be named in such order, their executors, administrators, and assigns, shall, subject to the provisions thereinafter mentioned or referred to, be empowered to prevent the representation in the British dominions of any translation of such dramatic pieces not authorised by them, for such time as may be specified in such order, not extending beyond the expiration of five years from the time at which the authorised translations of such dramatic pieces are first published and publicly represented:"_ _And whereas by the same Act it is further enacted, "that, subject to any provisions or qualifications contained in such order, and to the provisions in the said Act contained or referred to, the laws and enactments for the time being in force for ensuring to the author of any dramatic piece first publicly represented in the British dominions the sole liberty of representing the same shall be applied for the purpose of preventing the representation of any translations of the dramatic pieces to which such order extends, which are not sanctioned by the authors thereof:"_ _And whereas by the sixth section of the said Act it is provided, that "nothing in the said Act contained shall be so construed as to prevent fair imitations or adaptations to the English stage of any dramatic piece or musical composition published in any foreign country:"_ _And whereas it is expedient to alter or amend the last-mentioned provision under certain circumstances.[1764] Be it therefore enacted as follows, viz.:_-- [Sidenote: Section 6 of recited Act not to apply to dramatic pieces in certain cases.] I. In any case in which, by virtue of the enactments hereinbefore recited, any Order in Council has been or may hereafter be made for the purpose of extending protection to the translations of dramatic pieces first publicly represented in any foreign country, it shall be lawful for Her Majesty by Order in Council to direct that the sixth section of the said Act shall not apply to the dramatic pieces to which protection is so extended; and thereupon the said recited Act shall take effect with respect to such dramatic pieces and to the translations thereof as if the said sixth section of the said Act were hereby repealed. THE CANADA COPYRIGHT ACT, 1875.[1765] 38 & 39 VICT. C. 53. An Act to give effect to an Act of the Parliament of the Dominion of Canada respecting Copyright. [2nd August 1875.] _Whereas by an Order of Her Majesty in Council, dated the 7th day of July 1868, it was ordered that all prohibitions contained in Acts of the Imperial Parliament against the importing into the Province of Canada, or against the selling, letting out to hire, exposing for sale or hire, or possessing therein foreign reprints of books first composed, written, printed, or published in the United Kingdom, and entitled to copyright therein, should be suspended so far as regarded Canada: _And whereas the Senate and House of Commons of Canada did, in the second session of the third Parliament of the Dominion of Canada, held in the thirty-eighth year of Her Majesty's reign, pass a Bill intituled "An Act respecting Copyrights," which Bill has been reserved by the Governor-General for the signification of Her Majesty's pleasure thereon:_ _And whereas by the said reserved Bill provision is made, subject to such conditions as in the said Bill are mentioned, for securing in Canada the rights of authors in respect of matters of copyright, and for prohibiting the importation into Canada of any work for which copyright under the said reserved Bill has been secured; and whereas doubts have arisen whether the said reserved Bill may not be repugnant to the said Order in Council, and it is expedient to remove such doubts and to confirm the said Bill:_[1766] Be it enacted as follows: [Sidenote: Short title of Act.] I. This Act may be cited for all purposes as The Canada Copyright Act, 1875. [Sidenote: Definition of terms.] II. In the construction of this Act the words "book" and "copyright" shall have respectively the same meaning as in the Act of the fifth and sixth years of Her Majesty's reign, chapter forty-five, intituled "An Act to amend the Law of Copyright." [Sidenote: Her Majesty may assent to the Bill in schedule.] III. It shall be lawful for Her Majesty in Council to assent to the said reserved Bill, as contained in the schedule to this Act annexed, and if Her Majesty shall be pleased to signify Her assent thereto, the said Bill shall come into operation at such time and in such manner as Her Majesty may by Order in Council direct; anything in the Act of the twenty-eighth and twenty-ninth years of the reign of Her Majesty, chapter ninety-three, or in any other Act to the contrary notwithstanding. [Sidenote: Colonial reprints not to be imported into United Kingdom.] IV. Where any book in which, at the time when the said reserved Bill comes into operation, there is copyright in the United Kingdom, or any book in which thereafter there shall be such copyright, becomes entitled to copyright in Canada in pursuance of the provisions of the said reserved Bill, it shall be unlawful for any person, not being the owner, in the United Kingdom, of the copyright in such book, or some person authorised by him, to import into the United Kingdom any copies of such book reprinted or republished in Canada; and for the purposes of such importation the seventeenth section of the said Act of the fifth and sixth years of the reign of Her Majesty, chapter forty-five, shall apply to all such books in the same manner as if they had been reprinted out of the British dominions. [Sidenote: Order in Council of 7th July 1868 to continue in force subject to this Act.] V. The said Order in Council, dated the seventh day of July one thousand eight hundred and sixty-eight, shall continue in force so far as relates to books which are not entitled to copyright for the time being, in pursuance of the said reserved Bill. THE CUSTOMS LAWS CONSOLIDATION ACT, 1876. 39 & 40 VICT. C. 36. XLII. The goods enumerated and described in the following table of prohibitions and restrictions inwards are hereby prohibited to be imported or brought into the United Kingdom, save as thereby excepted, and if any goods so enumerated and described shall be imported or brought into the United Kingdom contrary to the prohibitions or restrictions contained therein, such goods shall be forfeited, and may be destroyed or otherwise disposed of as the Commissioners of Customs may direct. A TABLE OF PROHIBITIONS AND RESTRICTIONS INWARDS. _Goods prohibited to be imported._--Books wherein the Copyright shall be first subsisting, first composed or written or printed in the United Kingdom, and printed or reprinted in any other Country as to which the proprietor of such Copyright or his agent shall have given to the Commissioners of Customs a notice in writing, duly declared, that such Copyright subsists, such notice also stating when such Copyright will expire.[1767] XLIV. The Commissioners of Customs shall cause to be made and to be publicly exposed at the Custom Houses in the several ports in the United Kingdom lists of all books wherein the Copyright shall be subsisting, and as to which the proprietor of such Copyright, or his agent, shall have given notice in writing to the said Commissioners that such Copyright exists, stating in such notice when such Copyright expires, accompanied by a declaration made and subscribed before a collector of Customs or a justice of the peace that the contents of such notice are true. XLV. If any person shall have cause to complain of the insertion of any book in such lists, it shall be lawful for any judge at chambers, on the application of the person so complaining, to issue a summons calling upon the person upon whose notice such book shall have been so inserted to appear before any such judge at a time to be appointed in such summons, to show cause why such book shall not be expunged from such lists, and any such judge shall at the time so appointed proceed to hear and determine upon the matter of such summons and make his order thereon in writing; and upon service of such order or a certified copy thereof, upon the Commissioners of Customs or their secretary for the time being, the said Commissioners shall expunge such book from the list, or retain the same therein according to the tenor of such order; and in case such book shall be expunged from such list, the importation thereof shall not be deemed to be prohibited. If at the time appointed in any such summons the person so summoned shall not appear before such judge, then upon proof by affidavit that such summons or a true copy thereof has been personally served upon the person so summoned, or sent to him by post to or left at his last known place of abode or business, any such judge may proceed _ex parte_ to hear and determine the matter; but if either party be dissatisfied with such order he may apply to a superior Court to review such decision and to make such further order thereon as the Court may see fit: Provided always that nothing herein contained shall affect any proceeding at law or in equity which any party aggrieved by reason of the insertion of any book pursuant to any such notice, or the removal of any book from such list pursuant to any such order or by reason of any false declaration under this Act, might or would otherwise have against any party giving such notice or obtaining such order or making such false declaration. CLII. Any books wherein the copyright shall be subsisting, first composed or written or printed in the United Kingdom, and printed or reprinted in any other country, shall be and are hereby absolutely prohibited to be imported into the British possessions abroad: Provided always that no such books shall be prohibited to be imported as aforesaid, unless the proprietor of such copyright, or his agent, shall have given notice in writing to the Commissioners of Customs that such copyright subsists, and in such notice shall have stated when the copyright will expire: and the said Commissioners shall cause to be made and transmitted to the several ports in the British possessions abroad, from time to time to be publicly exposed there, lists of books respecting which such notice shall have been duly given, and all books imported contrary thereto shall be forfeited: but nothing herein contained shall be taken to prevent Her Majesty from exercising the powers vested in her by 10 & 11 Vict. c. 95 to suspend in certain cases such prohibition. THE COPYRIGHT (MUSICAL COMPOSITIONS) ACT, 1882. 45 & 46 VICT. C. 40. An Act to amend the law of Copyright relating to Musical Compositions. [10th August 1882.] _Whereas it is expedient to amend the law relating to copyright in musical compositions, and to protect the public from vexatious proceedings for the recovery of penalties for the unauthorised performance of the same._[1768] Be it therefore enacted as follows: [Sidenote: Printed notice restraining public performance.] I.[1769] The proprietor of the copyright in any musical composition first published after the passing of this Act, or his assignee, who shall be entitled to and be desirous of retaining in his own hands exclusively the right of public representation or performance of the same, shall print or cause to be printed upon the title-page of every published copy of such musical composition a notice to the effect that the right of public representation or performance is reserved. [Sidenote: Provision when right of performance and copyright are vested in different owners.] II. In case the right of public representation or performance of, and the copyright in, any musical composition shall be or become vested before publication of any copy thereof in different owners, then, if the owner of the right of public representation or performance shall desire to retain the same, he shall, before any such publication of any copy of such musical composition, give to the owner of the copyright therein notice in writing requiring him to print upon every copy of such musical composition a notice to the effect that the right of public representation or performance is reserved; but in case the right of public representation or performance of, and the copyright in, any musical composition shall, after publication of any copy thereof subsequently to the passing of this Act, first become vested in different owners, and such notice as aforesaid shall have been duly printed on all copies published after the passing of this Act previously to such vesting, then, if the owner of the right of performance and representation shall desire to retain the same, he shall, before the publication of any further copies of such musical composition, give notice in writing to the person in whom the copyright shall be then vested, requiring him to print such notice as aforesaid on every copy of such musical composition to be thereafter published. [Sidenote: Penalty on owner of copyright for non-compliance with notice from owner of right of performance.] III. If the owner for the time being of the copyright in any musical composition shall, after due notice being given to him or his predecessor in title at the time, and generally in accordance with the last preceding section, neglect or fail to print legibly and conspicuously upon every copy of such composition published by him or by his authority, or by any person lawfully entitled to publish the same, and claiming through or under him, a note or memorandum stating that the right of public representation or performance is reserved, then and in such case the owner of the copyright at the time of the happening of such neglect or default, shall forfeit and pay to the owner of the right of public representation or performance of such composition the sum of twenty pounds, to be recovered in any court of competent jurisdiction. [Sidenote: Costs.] [Sidenote: 3 & 4 Will. 4 c. 15.] IV. _Notwithstanding the provisions of the Act passed in the third and fourth years of His Majesty King William the Fourth, to amend the laws relating to dramatic literary property, or any other Act in which those provisions are incorporated, the costs of any action or proceedings for penalties or damages in respect of the unauthorised representation or performance of any musical composition published before the passing of this Act shall, in cases in which the plaintiff shall not recover more than forty shillings as penalty or damages, be in the discretion of the court or judge before whom such action or proceedings shall be tried._[1770] [Sidenote: Short title.] V. This Act may be cited as the Copyright (Musical Compositions) Act, 1882. THE INTERNATIONAL COPYRIGHT ACT, 1886. 49 & 50 VICT. C. 33. An Act to amend the Law respecting International and Colonial Copyright. [25th June 1886.] _Whereas by the International Copyright Acts Her Majesty is authorised by Order in Council to direct that as regards literary and artistic works first published in a foreign country the author shall have copyright therein during the period specified in the order, not exceeding the period during which authors of the like works first published in the United Kingdom have copyright_: _And whereas at an international conference held at Berne in the month of September one thousand eight hundred and eighty-five a draft of a convention was agreed to for giving to authors of literary and artistic works first published in one of the countries parties to the convention copyright in such works throughout the other countries parties to the convention_: _And whereas, without the authority of Parliament, such convention cannot be carried into effect in Her Majesty's dominions and consequently Her Majesty cannot become a party thereto, and it is expedient to enable Her Majesty to accede to the convention_:[1771] Be it therefore enacted as follows: [Sidenote: Short titles and construction.] I.--(1.) This Act may be cited as the International Copyright Act, 1886. (2.) The Acts specified in the first part of the First Schedule to this Act, together with the enactment specified in the second part of the said schedule, are in this Act collectively referred to as the International Copyright Acts. The Acts specified in the Second Schedule to this Act may be cited by the short titles in that schedule mentioned, and those Acts are in this Act referred to, and may be cited collectively as the Copyright Acts. (3.) This Act and the International Copyright Acts shall be construed together, and may be cited together as the International Copyright Acts, 1844 to 1886. [Sidenote: Amendment as to extent and effect of order under International Copyright Acts.] II. The following provisions shall apply to an Order in Council under the International Copyright Acts: (1.) The order may extend to all the several foreign countries named or described therein: (2.) The order may exclude or limit the rights conferred by the International Copyright Acts in the case of authors who are not subjects or citizens of the foreign countries named or described in that or any other order, and if the order contains such limitation and the author of a literary or artistic work first produced in one of those foreign countries is not a British subject, nor a subject or citizen of any of the foreign countries so named or described, the publisher of such work, unless the order otherwise provides, shall for the purpose of any legal proceedings in the United Kingdom for protecting any copyright in such work be deemed to be entitled to such copyright as if he were the author, but this enactment shall not prejudice the rights of such author and publisher as between themselves: (3.) The International Copyright Acts and an order made thereunder shall not confer on any person any greater right or longer term of copyright in any work than that enjoyed in the foreign country in which such work was first produced. [Sidenote: Simultaneous publication.] III.--(1.) An Order in Council under the International Copyright Acts may provide for determining the country in which a literary or artistic work first produced simultaneously in two or more countries, is to be deemed, for the purpose of copyright, to have been first produced, and for the purposes of this section "country" means the United Kingdom and a country to which an order under the said Acts applies. (2.) Where a work produced simultaneously in the United Kingdom, and in some foreign country or countries is by virtue of an Order in Council under the International Copyright Acts deemed for the purpose of copyright to be first produced in one of the said foreign countries, and not in the United Kingdom, the copyright in the United Kingdom shall be such only as exists by virtue of production in the said foreign country, and shall not be such as would have been acquired if the work had been first produced in the United Kingdom. [Sidenote: Modification of certain provisions of International Copyright Acts.] IV.--(1.) Where an order respecting any foreign country is made under the International Copyright Acts the provisions of those Acts with respect to the registry and delivery of copies of works shall not apply to works produced in such country except so far as provided by the order. (2.) Before making an Order in Council under the International Copyright Acts in respect of any foreign country, Her Majesty in Council shall be satisfied that that foreign country has made such provisions (if any) as it appears to Her Majesty expedient to require for the protection of authors of works first produced in the United Kingdom. [Sidenote: Restriction on translation.] V.--(1.) Where a work being a book or dramatic piece is first produced in a foreign country to which an Order in Council under the International Copyright Acts applies, the author or publisher, as the case may be, shall, unless otherwise directed by the order, have the same right of preventing the production in and importation into the United Kingdom of any translation not authorised by him of the said work as he has of preventing the production and importation of the original work. (2.) Provided that if after the expiration of ten years, or any other term prescribed by the order, next after the end of the year in which the work, or in the case of a book published in numbers each number of the book, was first produced, an authorised translation in the English language of such work or number has not been produced, the said right to prevent the production in and importation into the United Kingdom of an unauthorised translation of such work shall cease. (3.) The law relating to copyright, including this Act, shall apply to a lawfully produced translation of a work in like manner as if it were an original work. (4.) Such of the provisions of the International Copyright Act, 1852, relating to translations as are unrepealed by this Act, shall apply in like manner as if they were re-enacted in this section. [Sidenote: Application of Act to existing works.] VI.[1772] Where an Order in Council is made under the International Copyright Acts with respect to any foreign country, the author and publisher of any literary or artistic work first produced before the date at which such order comes into operation shall be entitled to the same rights and remedies as if the said Acts and this Act and the said order had applied to the said foreign country at the date of the said production: Provided that where any person has before the date of the publication of an Order in Council lawfully produced any work in the United Kingdom, nothing in this section shall diminish or prejudice any rights or interests arising from or in connection with such production which are subsisting and valuable at the said date. [Sidenote: Evidence of foreign copyright.] VII. Where it is necessary to prove the existence or proprietorship of the copyright of any work first produced in a foreign country to which an Order in Council under the International Copyright Acts applies, an extract from a register, or a certificate, or other document stating the existence of the copyright, or the person who is the proprietor of such copyright, or is for the purpose of any legal proceedings in the United Kingdom deemed to be entitled to such copyright, if authenticated by the official seal of a Minister of State of the said foreign country, or by the official seal or the signature of a British diplomatic or consular officer acting in such country, shall be admissible as evidence of the facts named therein, and all courts shall take judicial notice of every such official seal and signature as is in this section mentioned, and shall admit in evidence, without proof, the documents authenticated by it. [Sidenote: Application of Copyright Acts to colonies.] VIII.--(1.) The Copyright Acts shall, subject to the provisions of this Act, apply to a literary or artistic work first produced in a British possession in like manner as they apply to a work first produced in the United Kingdom:[1773] Provided that-- (_a_) the enactments respecting the registry of the copyright in such work shall not apply if the law of such possession provides for the registration of such copyright; and (_b_) where such work is a book the delivery to any persons or body of persons of a copy of any such work shall not be required. (2.) Where a register of copyright in books is kept under the authority of the government of a British possession, an extract from that register purporting to be certified as a true copy by the officer keeping it, and authenticated by the public seal of the British possession, or by the official seal or the signature of the governor of a British possession, or of a colonial secretary, or of some secretary or minister administering a department of the government of a British possession, shall be admissible in evidence of the contents of that register, and all courts shall take judicial notice of every such seal and signature, and shall admit in evidence, without further proof, all documents authenticated by it. (3.) Where before the passing of this Act an Act or ordinance has been passed in any British possession respecting copyright in any literary or artistic works, Her Majesty in Council may make an Order modifying the Copyright Acts and this Act, so far as they apply to such British possession, and to literary and artistic works first produced therein, in such manner as to Her Majesty in Council seems expedient. (4.) Nothing in the Copyright Acts or this Act shall prevent the passing in a British possession of any Act or ordinance respecting the copyright within the limits of such possession of works first produced in that possession.[1774] [Sidenote: Application of International Copyright Acts to colonies.] IX. Where it appears to Her Majesty expedient that an Order in Council under the International Copyright Acts made after the passing of this Act as respects any foreign country, should not apply to any British possession, it shall be lawful for Her Majesty by the same or any other Order in Council to declare that such Order and the International Copyright Acts and this Act shall not, and the same shall not, apply to such British possession, except so far as is necessary for preventing any prejudice to any rights acquired previously to the date of such Order; and the expressions in the said Acts relating to Her Majesty's dominions shall be construed accordingly; but save as provided by such declaration the said Acts and this Act shall apply to every British possession as if it were part of the United Kingdom. [Sidenote: Making of Orders in Council.] X.--(1.) It shall be lawful for Her Majesty from time to time to make Orders in Council for the purposes of the International Copyright Acts and this Act, for revoking or altering any Order in Council previously made in pursuance of the said Acts, or any of them. (2.) Any such Order in Council shall not affect prejudicially any rights acquired or accrued at the date of such Order coming into operation, and shall provide for the protection of such rights. [Sidenote: Definitions.] XI. In this Act, unless the context otherwise requires-- The expression "literary and artistic work" means every book, print, lithograph, article of sculpture, dramatic piece, musical composition, painting, drawing, photograph, and other work of literature and art to which the Copyright Acts or the International Copyright Acts, as the case requires, extend. The expression "author" means the author, inventor, designer, engraver, or maker of any literary or artistic work, and includes any person claiming through the author; and in the case of a posthumous work means the proprietor of the manuscript of such work and any person claiming through him; and in the case of an encyclopædia, review, magazine, periodical work, or work published in a series of books or parts, includes the proprietor, projector, publisher, or conductor. The expressions "performed" and "performance" and similar words include representation and similar words. The expression "produced" means, as the case requires, published or made, or, performed or represented, and the expression "production" is to be construed accordingly. The expression "book published in numbers" includes any review, magazine, periodical work, work published in a series of books or parts, transactions of a society or body, and other books of which different volumes or parts are published at different times. The expression "treaty" includes any convention or arrangement. The expression "British possession" includes any part of Her Majesty's dominions exclusive of the United Kingdom; and where parts of such dominions are under both a central and a local legislature, all parts under one central legislature are for the purposes of this definition deemed to be one British possession. [Sidenote: Repeal of Acts.] XII. _The Acts specified in the Third Schedule to this Act are hereby repealed as from the passing of this Act to the extent in the third column of that schedule mentioned_: _Provided as follows_:[1775] (_a._) Where an Order in Council has been made before the passing of this Act under the said Acts as respects any foreign country the enactments hereby repealed shall continue in full force as respects that country until the said Order is revoked. (_b._) _The said repeal and revocation shall not prejudice any rights acquired previously to such repeal or revocation, and such rights shall continue and may be enforced in like manner as if the said repeal or revocation had not been enacted or made._ SCHEDULES. FIRST SCHEDULE.--INTERNATIONAL COPYRIGHT ACTS. PART I. --------------------+--------------------------------+---------------- Session and Chapter.| Title. | Short Title. --------------------+--------------------------------+---------------- | | 7 & 8 Vict. c. 12. |An Act to amend the law relating|The International | to International Copyright. | Copyright Act, | | 1844. | | 15 & 16 Vict. c. 12.|An Act to enable Her Majesty to |The International | carry into effect a convention | Copyright Act, | with France on the subject of | 1852. | copyright, to extend and | | explain the International | | Copyright Acts, and to explain | | the Acts relating to copyright | | in engravings. | | | 38 & 39 Vict. c. 12.|An Act to amend the law relating|The International | to International Copyright. | Copyright Act, | | 1875. --------------------+--------------------------------+---------------- PART II. --------------------+--------------------------------+---------------- Session and Chapter.| Title. | Enactment | | referred to. --------------------+--------------------------------+---------------- | | 25 & 26 Vict. c. 68.|An Act for amending the law |Section twelve. | relating to copyright in works| | of the fine arts, and for | | repressing the commission of | | fraud in the production and | | sale of such works. | --------------------+--------------------------------+---------------- SECOND SCHEDULE.--COPYRIGHT ACTS. --------------------+--------------------------------+---------------- Session and Chapter.| Title. | Short Title. --------------------+--------------------------------+---------------- | | 8 Geo. 2, c. 13. |An Act for the encouragement of |The Engraving | the arts of designing, | Copyright Act, | engraving, and etching, | 1734. | historical, and other prints by| | vesting the properties thereof | | in the inventors and engravers | | during the time therein | | mentioned. | | | 7 Geo. 3, c. 38. |An Act to amend and render more |The Engraving | effectual an Act made in the | Copyright Act, | eighth year of the reign of | 1766. | King George the Second, for | | encouragement of the arts of | | designing, engraving, and | | etching, historical and other | | prints, and for vesting in and | | securing to Jane Hogarth, | | widow, the property in certain | | prints. | | | 15 Geo. 3, c. 53. |An Act for enabling the two |The Copyright | Universities in England, the | Act, 1775. | four Universities in Scotland, | | and the several Colleges of | | Eton, Westminster, and | | Winchester, to hold in | | perpetuity their copyright in | | books given or bequeathed to | | the said universities and | | colleges for the advancement of| | useful learning and other | | purposes of education; and for | | amending so much of an Act of | | the eighth year of the reign of| | Queen Anne, as relates to the | | delivery of books to the | | warehouse keeper of the | | Stationers' Company for the use| | of the several libraries | | therein mentioned. | --------------------+--------------------------------+---------------- SECOND SCHEDULE.--COPYRIGHT ACTS.--(_Continued_). --------------------+--------------------------------+---------------- Session and Chapter.| Title. | Short Title. --------------------+--------------------------------+---------------- | | 17 Geo. 3, c. 57. |An Act for more effectually |The Prints | securing the property of | Copyright Act, | prints to inventors and | 1777. | engravers by enabling them to | | sue for and recover penalties | | in certain cases. | | | 54 Geo. 3, c. 56. |An Act to amend and render more |The Sculpture | effectual an Act of His present| Copyright Act, | Majesty for encouraging the art| 1814. | of making new models and casts | | of busts and other things | | therein mentioned, and for | | giving further encouragement to| | such arts. | | | 3 Will. 4, c. 15. |An Act to amend the laws |The Dramatic | relating to Dramatic Literary | Copyright Act, | Property. | 1833. | | 5 & 6 Will. 4, |An Act for preventing the |The Lectures c. 65. | publication of Lectures without| Copyright Act, | consent. | 1835. | | 6 & 7 Will. 4, |An Act to extend the protection |The Prints and c. 69. | of copyright in prints and | Engravings | engravings to Ireland. | Copyright Act, | | 1836. | | 6 & 7 Will. 4, |An Act to repeal so much of an |The Copyright c. 110. | Act of the fifty-fourth year of| Act, 1836. | King George the Third, | | respecting copyrights, as | | requires the delivery of a copy| | of every published book to the | | libraries of Sion College, the | | four Universities of Scotland, | | and of the King's Inns in | | Dublin. | | | 5 & 6 Vict. c. 45. |An Act to amend the law of |The Copyright | copyright. | Act, 1842. | | 10 & 11 Vict. c. 95.|An Act to amend the law relating|The Colonial | to the protection in the | Copyright Act, | Colonies of works entitled to | 1847. | copyright in the United | | Kingdom. | | | 25 & 26 Vict. c. 68.|An Act for amending the law |The Fine Arts | relating to copyright in works| Copyright Act, | of the fine arts, and for | 1862. | repressing the commission of | | fraud in the production and | | sale of such works. | --------------------+--------------------------------+---------------- THIRD SCHEDULE.--ACTS REPEALED. --------------------+--------------------------------+---------------- Session and Chapter.| Title. |Extent of Repeal. --------------------+--------------------------------+---------------- | | 7 & 8 Vict. c. 12. |An Act to amend the law relating|Sections | to international copyright. | fourteen, | | seventeen, and | | eighteen. | | 15 & 16 Vict. c. 12.|An Act to enable Her Majesty to |Sections one to | carry into effect a convention | five both | with France on the subject of | inclusive, and | copyright, to extend and | sections eight | explain the International | and eleven. | Copyright Acts, and to explain | | the Acts relating to copyright | | engravings. | | | 25 & 26 Vict. c. 68.|An Act for amending the law |So much of | relating to copyright in works | section twelve | of the fine arts, and for | as incorporates | repressing the commission of | any enactment | fraud in the production and | repealed by | sale of such works. | this Act. --------------------+--------------------------------+---------------- THE COPYRIGHT (MUSICAL COMPOSITIONS) ACT, 1888. 51 & 52 VICT. C. 17. An Act to amend the Law relating to the Recovery of Penalties for the unauthorised Performance of Copyright Musical Compositions. [5th July 1888.] Whereas it is expedient to further amend the law relating to copyright in musical compositions, and to further protect the public from vexatious proceedings for the recovery of penalties for the unauthorised performance of the same: Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: [Sidenote: Provision as to damages.] I. Notwithstanding the provisions of the Act of the session held in the third and fourth years of His Majesty King William the Fourth, chapter fifteen, to amend the laws relating to dramatic literary property, or any other Act in which those provisions are incorporated, the penalty or damages to be awarded upon any action or proceedings in respect of each and every unauthorised representation or performance of any musical composition, whether published before or after the passing of this Act, shall be such a sum or sums as shall, in the discretion of the Court or judge before whom such action or proceedings shall be tried, be reasonable, and the Court or judge before whom such action or proceedings shall be tried may award a less sum than forty shillings in respect of each and every such unauthorised representation or performance as aforesaid, or a nominal penalty or nominal damages as the justice of the case may require. [Sidenote: Costs to be in discretion of judge. 45 & 46 Vict. c. 40.] II. The costs of all such actions or proceedings as aforesaid shall be in the absolute discretion of the judge before whom such actions and proceedings shall be tried, and section four of the Copyright (Musical Compositions) Act, 1882, is hereby repealed. [Sidenote: Proprietor not wilfully permitting such performance to be exempt.] III. The proprietor, tenant, or occupier of any place of dramatic entertainment, or other place at which any unauthorised representation or performance of any musical composition, whether published before or after the passing of this Act, shall take place, shall not by reason of such representation or performance be liable to any penalty or damages in respect thereof, unless he shall wilfully cause or permit such unauthorised representation or performance, knowing it to be unauthorised.[1776] [Sidenote: Saving for operas and plays]. IV. The provisions of this Act shall not apply to any action or proceedings in respect of a representation or performance of any opera or stage play in any theatre or other place of public entertainment duly licensed in that respect. [Sidenote: Short title.] V. This Act may be cited as the Copyright (Musical Compositions) Act, 1888. THE REVENUE ACT, 1889. 52 & 53 VICT. C. 42. I. The following goods shall from and after the passing of this Act be included amongst the goods enumerated and described on the table of prohibitions and restrictions contained in Section 42 of the Customs Consolidation Act, 1876, namely: Books, first published in any country or state other than the United Kingdom, wherein under the International Copyright Act, 1886, or any other Act or any Order in Council made under the authority of any Act, there is a subsisting Copyright in the United Kingdom, printed or reprinted in any country or state other than the country or state in which they were first published,[1777] and as to which the owner of the copyright or his agent in the United Kingdom has given to the Commissioners of Customs in the manner prescribed by Section 44 of the Customs Consolidation Act, 1876, a notice in such form and giving such particulars as those Commissioners require, and accompanied by a declaration as provided in that Section. INTERNATIONAL CONVENTIONS THE BERNE CONVENTION, 1886. ARTICLE I. The Contracting States are constituted into an Union for the protection of the rights of authors over their literary and artistic works. ARTICLE II. _Authors of any of the countries of the Union, or their lawful representatives, shall enjoy in the other countries for their works, whether published in one of those countries or unpublished, the rights which the respective laws do now or may hereafter grant to natives._[1778] The enjoyment of these rights is subject to the accomplishment of the conditions and formalities described by law in the country of origin of the work, and cannot exceed in the other countries the term of protection granted in the said country of origin. The country of origin of the work is that in which the work is first published, or if such publication takes place simultaneously in several countries of the Union, that one of them in which the shortest term of protection is granted by law. For unpublished works the country to which the author belongs is considered the country of origin of the work. ARTICLE III. _The stipulations of the present Convention apply equally to the publishers of literary and artistic works published in one of the countries of the Union, but of which the authors belong to a country which is not a party to the Union._ ARTICLE IV. The expression "literary and artistic works" comprehends books, pamphlets, and all other writings; dramatic or dramatico-musical works, musical compositions with or without words; works of design, painting, sculpture, and engraving; lithographs, illustrations, geographical charts; plans, sketches, and plastic works relative to geography, topography, architecture, or science in general; in fact, every production whatsoever in the literary, scientific, or artistic domain which can be published by any mode of impression or reproduction. ARTICLE V. _Authors of any of the countries of the Union, or their lawful representatives, shall enjoy in the other countries the exclusive right of making or authorising the translation of their works until the expiration of ten years from the publication of the original work in one of the countries of the Union._ For works published in incomplete parts ("livraisons") the period of ten years commences from the date of publication of the last part of the original work. For works composed of several volumes published at intervals, as well as for bulletins or collections ("cahiers") published by literary or scientific Societies, or by private persons, each volume, bulletin, or collection is, with regard to the period of ten years, considered as a separate work. In the cases provided for by the present Article, and for the calculation of the period of protection, the 31st December of the year in which the work was published is admitted as the date of publication. ARTICLE VI. Authorised translations are protected as original works. They consequently enjoy the protection stipulated in Articles II. and III. as regards their unauthorised reproduction in the countries of the Union. It is understood that, in the case of a work for which the translating right has fallen into the public domain, the translator cannot oppose the translation of the same work by other writers. ARTICLE VII. _Articles from newspapers or periodicals published in any of the countries of the Union may be reproduced in original or in translation in the other countries of the Union, unless the authors or publishers have expressly forbidden it. For periodicals it is sufficient if the prohibition is made in a general manner at the beginning of each number of the periodical._ _This prohibition cannot in any case apply to articles of political discussion, or to the reproduction of news of the day or current topics._ ARTICLE VIII. As regards the liberty of extracting portions from literary or artistic works for use in publications destined for educational or scientific purposes, or for chrestomathies, the matter is to be decided by the legislation of the different countries of the Union, or by special arrangements existing or to be concluded between them. ARTICLE IX.[1779] The stipulations of Article II. apply to the public representation of dramatic or dramatico-musical works, whether such works be published or not. Authors of dramatic or dramatico-musical works, or their lawful representatives, are, during the existence of their exclusive right of translation, equally protected against the unauthorised public representation of translations of their works. The stipulations of Article II. apply equally to the public performance of unpublished musical works, or of published works in which the author has expressly declared on the title-page or commencement of the work that he forbids the public performance. ARTICLE X. Unauthorised indirect appropriations of a literary or artistic work, of various kinds, such as adaptations, arrangements of music, &c., are specially included amongst the illicit reproductions to which the present Convention applies, when they are only the reproduction of a particular work, in the same form, or in another form, with non-essential alterations, additions, or abridgments, so made as not to confer the character of a new original work. It is agreed that, in the application of the present Article, the Tribunals of the various countries of the Union will, if there is occasion, conform themselves to the provisions of their respective laws. ARTICLE XI. In order that the authors of works protected by the present Convention shall, in the absence of proof to the contrary, be considered as such, and be consequently admitted to institute proceedings against pirates before the Courts of the various countries of the Union, it will be sufficient that their name be indicated on the work in the accustomed manner. For anonymous or pseudonymous works, the publisher whose name is indicated on the work is entitled to protect the rights belonging to the author. He is, without other proof, reputed the lawful representative of the anonymous or pseudonymous author. It is, nevertheless, agreed that the Tribunals may, if necessary, require the production of a certificate from the competent authority to the effect that the formalities prescribed by law in the country of origin have been accomplished, as contemplated in Article II. ARTICLE XII. _Pirated works may be seized on importation into those countries of the Union where the original work enjoys legal protection._ _The seizure shall take place conformably to the domestic law of each State._ ARTICLE XIII. It is understood that the provisions of the present Convention cannot in any way derogate from the right belonging to the Government of each country of the Union to permit, to control, or to prohibit, by measures of domestic legislation or police, the circulation, representation, or exhibition of any works or productions in regard to which the competent authority may find it necessary to exercise that right. ARTICLE XIV. Under the reserves and conditions to be determined by common agreement,[1780] the present Convention applies to all works which at the moment of its coming into force have not yet fallen into the public domain in the country of origin. ARTICLE XV. It is understood that the Governments of the countries of the Union reserve to themselves respectively the right to enter into separate and particular arrangements between each other, provided always that such arrangements confer upon authors or their lawful representatives more extended rights than those granted by the Union, or embody other stipulations not contrary to the present Convention. ARTICLE XVI.[1781] An international office is established, under the name of "Office of the International Union for the Protection of Literary and Artistic Works." This Office, of which the expenses will be borne by the Administrations of all the countries of the Union, is placed under the high authority of the Superior Administration of the Swiss Confederation, and works under its direction. The functions of this Office are determined by common accord between the countries of the Union. ARTICLE XVII. The present Convention may be submitted to revisions in order to introduce therein amendments calculated to perfect the system of the Union. Questions of this kind, as well as those which are of interest to the Union in other respects, will be considered in Conferences to be held successively in the countries of the Union by Delegates of the said countries. It is understood that no alteration in the present Convention shall be binding on the Union except by the unanimous consent of the countries composing it. ARTICLE XVIII. Countries which have not become parties to the present Convention, and which grant by their domestic law the protection of rights secured by this Convention, shall be admitted to accede thereto on request to that effect. Such accession shall be notified in writing to the Government of the Swiss Confederation, who will communicate it to all the other countries of the Union. Such accession shall imply full adhesion to all the clauses and admission to all the advantages provided by the present Convention. ARTICLE XIX. Countries acceding to the present Convention shall also have the right to accede thereto at any time for their Colonies or foreign possessions. They may do this either by a general declaration comprehending all their Colonies or possessions within the accession, or by specially naming those comprised therein, or by simply indicating those which are excluded. ARTICLE XX. The present Convention shall be put in force three months after the exchange of the ratifications, and shall remain in effect for an indefinite period until the termination of a year from the day on which it may have been denounced. _Such denunciation shall be made to the Government authorised to receive accessions, and shall only be effective as regards the country making it, the Convention remaining in full force and effect for the other countries of the Union._ ARTICLE XXI. The present Convention shall be ratified, and the ratifications exchanged at Berne, within the space of one year at the latest. In witness whereof, the respective Plenipotentiaries have signed the same, and have affixed thereto the seal of their arms. Done at Berne, the 9th day of September 1886. _Additional Article._ The Plenipotentiaries assembled to sign the Convention concerning the creation of an International Union for the protection of literary and artistic works have agreed upon the following Additional Article, which shall be ratified together with the Convention to which it relates: The Convention concluded this day in nowise affects the maintenance of existing Conventions between the Contracting States, provided always that such Conventions confer on authors, or their lawful representatives, rights more extended than those secured by the Union, or contain other stipulations which are not contrary to the said Convention. In witness whereof, the respective Plenipotentiaries have signed the present Additional Article. Done at Berne, the 9th day of September 1886. _Final Protocol._ In proceeding to the signature of the Convention concluded this day, the undersigned Plenipotentiaries have declared and stipulated as follows: 1. _As regards Article IV. it is agreed that those countries of the Union where the character of artistic works is not refused to photographs, engage to admit them to the benefits of the Convention concluded to-day, from the date of its coming into effect. They are, however, not bound to protect the authors of such works further than is permitted by their own legislation, except in the case of international engagements already existing, or which may hereafter be entered into by them._ _It is understood that an authorised photograph of a protected work of art shall enjoy legal protection in all the countries of the Union, as contemplated by the said Convention, for the same period as the principal right of reproduction of the work itself subsists, and within the limits of private arrangements between those who have legal rights._ 2. As regards Article IX. it is agreed that those countries of the Union whose legislation implicitly includes choregraphic works amongst dramatico-musical works, expressly admit the former works to the benefits of the Convention concluded this day. It is, however, understood that questions which may arise on the application of this clause shall rest within the competence of the respective Tribunals to decide. 3. It is understood that the manufacture and sale of instruments for the mechanical reproduction of musical airs which are copyright, shall not be considered as constituting an infringement of musical copyright. 4. _The common agreement alluded to in Article XIV. of the Convention is established as follows:_-- _The application of the Convention to works which have not fallen into the public domain at the time when it comes into force, shall operate according to the stipulations on this head which may be contained in special Conventions either existing or to be concluded._ _In the absence of such stipulations between any countries of the Union, the respective countries shall regulate, each for itself, by its domestic legislation, the manner in which the principle contained in Article XIV. is to be applied._ 5. The organisation of the International Office established in virtue of Article XVI. of the Convention shall be fixed by a Regulation which shall be drawn up by the Government of the Swiss Confederation. The official language of the International Office will be French. The International Office will collect all kinds of information relative to the protection of the rights of authors over their literary and artistic works. It will arrange and publish such information. It will study questions of general utility likely to be of interest to the Union, and, by the aid of documents placed at its disposal by the different Administrations, will edit a periodical publication in the French language treating questions which concern the Union. The Governments of the countries of the Union reserve to themselves the faculty of authorising, by common accord, the publication by the Office of an edition in one or more other languages if experience should show this to be requisite. The International Office will always hold itself at the disposal of members of the Union, with the view to furnish them with any special information they may require relative to the protection of literary and artistic works. The Administration of the country where a Conference is about to be held, will prepare the programme of the Conference with the assistance of the International Office. The Director of the International Office will attend the sittings of the Conferences, and will take part in the discussions without a deliberative voice. He will make an annual Report on his administration, which shall be communicated to all the members of the Union. The expenses of the Office of the International Union shall be shared by the Contracting States. Unless a fresh arrangement be made, they cannot exceed a sum of 60,000 fr. a year. This sum may be increased by the decision of one of the Conferences provided for in Article XVII. The share of the total expense to be paid by each country shall be determined by the division of the Contracting and acceding States into six classes, each of which shall contribute in the proportion of a certain number of units, viz.: First Class 25 units. Second " 20 " Third " 15 " Fourth " 10 " Fifth " 5 " Sixth " 3 " These co-efficients will be multiplied by the number of States of each class, and the total product thus obtained will give the number of units by which the total expense is to be divided. The quotient will give the amount of the unity of expense. Each State will declare, at the time of its accession, in which of the said classes it desires to be placed. The Swiss Administration will prepare the Budget of the Office, superintend its expenditure, make the necessary advances, and draw up the annual account, which shall be communicated to all the other Administrations. 6. The next Conference shall be held at Paris between four and six years from the date of the coming into force of the Convention. The French Government will fix the date within these limits after having consulted the International Office. 7. It is agreed that, as regards the exchange of ratifications contemplated in Article XXI., each Contracting Party shall give a single instrument, which shall be deposited, with those of the other States, in the Government archives of the Swiss Confederation. Each party shall receive in exchange a copy of the _procès-verbal_ of the exchange of ratifications, signed by the Plenipotentiaries present. The present Final Protocol, which shall be ratified with the Convention concluded this day, shall be considered as forming an integral part of the said Convention, and shall have the same force, effect, and duration. In witness whereof the respective Plenipotentiaries have signed the same. Done at Berne, the 9th day of September 1886. _Procès-verbal of Signature._ The undersigned Plenipotentiaries, assembled this day to proceed with the signature of the Convention with reference to the creation of an International Union for the protection of literary and artistic works, have exchanged the following declarations: 1. With reference to the accession of the Colonies or foreign possessions provided for by Article XIX. of the Convention: The Plenipotentiaries of His Catholic Majesty the King of Spain reserve to the Government the power of making known His Majesty's decision at the time of the exchange of ratifications. The Plenipotentiary of the French Republic states that the accession of his country carries with it that of all the French Colonies. The Plenipotentiaries of Her Britannic Majesty state that the accession of Great Britain to the Convention for the protection of literary and artistic works comprises the United Kingdom of Great Britain and Ireland, and all the Colonies and foreign possessions of Her Britannic Majesty. At the same time they reserve to the Government of Her Britannic Majesty the power of announcing at any time the separate denunciation of the Convention by one or several of the following Colonies or possessions, in the manner provided for by Article XX. of the Convention, namely: India, the Dominion of Canada, Newfoundland, the Cape, Natal, New South Wales, Victoria, Queensland, Tasmania, South Australia, Western Australia, and New Zealand. 2. With respect to the classification of the countries of the Union having regard to their contributory part to the expenses of the International Bureau (No. 5 of the Final Protocol): The Plenipotentiaries declare that their respective countries should be ranked in the following classes, namely: Germany in the first class. Belgium in the third class. Spain in the second class. France in the first class. Great Britain in the first class. Haiti in the fifth class. Italy in the first class. Switzerland in the third class. Tunis in the sixth class. The Plenipotentiary of the Republic of Liberia states that the powers which he has received from his Government authorise him to sign the Convention, but that he has not received instructions as to the class in which his country proposes to place itself with respect to the contribution to the expenses of the International Bureau. He, therefore, reserves that question to be determined by his Government, who will make known their intention on the exchange of ratifications. In witness whereof, the respective Plenipotentiaries have signed the present _procès-verbal_. Done at Berne, the 9th day of September 1886. _Procès-verbal recording Deposit of Ratifications._ In accordance with the stipulations of Article XXI., paragraph 1, of the Convention for the creation of an International Union for the protection of literary and artistic works, concluded at Berne on the 9th September 1886, and in consequence of the invitation addressed to that effect by the Swiss Federal Council to the Governments of the High Contracting Parties, the Undersigned assembled this day in the Federal Palace at Berne for the purpose of examining and depositing the ratifications of: Her Majesty the Queen of Great Britain and Ireland, Empress of India, His Majesty the Emperor of Germany, King of Prussia, His Majesty the King of the Belgians, Her Majesty the Queen Regent of Spain, in the name of His Catholic Majesty the King of Spain, The President of the French Republic, The President of the Republic of Haiti, His Majesty the King of Italy, The Council of the Swiss Confederation, His Highness the Bey of Tunis, to the said International Convention, followed by an Additional Article and Final Protocol. The instruments of these acts of ratification having been produced and found in good and due form, they have been delivered into the hands of the President of the Swiss Confederation, to be deposited in the archives of the Government of that country, in accordance with clause No. 7 of the Final Protocol of the International Convention. In witness whereof the undersigned have drawn up the present _procès-verbal_, to which they have affixed their signatures and the seals of their arms. Done at Berne, the 5th September 1887, in nine copies, one of which shall be deposited in the archives of the Swiss Confederation with the instruments of ratification. For Great Britain (L. S.) F. O. ADAMS. For Germany (L. S.) ALFRED VON B�LOW. For Belgium (L. S.) HENRY LOUMYER. For Spain (L. S.) COMTE DE LA ALMINA. For France (L. S.) EMMANUEL ARAGO. For Haiti (L. S.) LOUIS-JOSEPH JANVIER. For Italy (L. S.) F�. For Switzerland (L. S.) DROZ. For Tunis (L. S.) H. MARCHAND. _Protocol._ On proceeding to the signature of the _procès-verbal_ recording the deposit of the acts of ratification given by the High Parties Signatory to the Convention of the 9th September 1886, for the creation of an International Union for the protection of literary and artistic works, the Minister of Spain renewed, in the name of his Government, the declaration recorded in the _procès-verbal_ of the Conference of the 9th September 1886, according to which the accession of Spain to the Convention includes that of all the territories dependent upon the Spanish Crown. The Undersigned have taken note of this declaration. In witness whereof they have signed the present Protocol, done at Berne, in nine copies, the 5th September 1887. ORDER IN COUNCIL, NOVEMBER 28, 1887. BRITISH ORDER IN COUNCIL giving effect to the International Copyright Convention with Belgium, France, Germany, Haiti, Italy, Spain, Switzerland, and Tunis, of September 9, 1886. [Windsor, November 28, 1887.] Whereas the Convention, of which an English translation is set out in the First Schedule to this Order, has been concluded between Her Majesty the Queen of the United Kingdom of Great Britain and Ireland and the foreign countries named in this Order, with respect to the protection to be given by way of copyright to the authors of literary and artistic works: And whereas the ratifications of the said Convention were exchanged on the 5th September 1887, between Her Majesty the Queen and the Governments of the foreign countries following, that is to say: Belgium, France, Germany, Haiti, Italy, Spain, Switzerland, Tunis. And whereas Her Majesty in Council is satisfied that the foreign countries named in this Order have made such provisions as it appears to Her Majesty expedient to require for the protection of authors of works first produced in Her Majesty's dominions. Now therefore Her Majesty, by and with the advice of Her Privy Council, and by virtue of the authority committed to her by the International Copyright Acts, 1844 to 1886, doth order, and it is hereby ordered as follows: 1. The Convention as set forth in the First Schedule to this Order shall as from the commencement of this Order have full effect throughout Her Majesty's dominions, and all persons are enjoined to observe the same. 2. This Order shall extend to the foreign countries following, that is to say[1782]: Belgium, France, Germany, Haiti, Italy, Spain, Switzerland, Tunis. And the above countries are in this Order referred to as the foreign countries of the Copyright Union, and those foreign countries, together with Her Majesty's dominions, are in this Order referred to as the countries of the Copyright Union. 3. The author of a literary or artistic work which, on or after the commencement of this Order, is first produced in one of the foreign countries of the Copyright Union shall, subject as in this Order and in the International Copyright Acts, 1844 to 1886, mentioned, have as respects that work throughout Her Majesty's dominions the same right of copyright, including any right capable of being conferred by an Order in Council under section 2 or section 5 of the International Copyright Act, 1844, or under any other enactment as if the work had been first produced in the United Kingdom, and shall have such right during the same period. Provided that the author of a literary or artistic work shall not have any greater right or longer term of copyright therein than that which he enjoys in the country in which the work is first produced. The author of any literary or artistic work first produced before the commencement of this Order shall have the rights and remedies to which he is entitled under section 6 of the International Copyright Act, 1886. 4. _The rights conferred by the International Copyright Acts, 1844 to 1886, shall in the case of a literary or artistic work first produced in one of the foreign countries of the Copyright Union by an author who is not a subject or citizen of any of the said foreign countries, be limited as follows: that is to say, the author shall not be entitled to take legal proceedings in Her Majesty's dominions for protecting any copyright in such work, but the publisher of such work shall, for the purpose of any legal proceedings in Her Majesty's dominions for protecting any copyright in such work, be deemed to be entitled to such copyright as if he were the author, but without prejudice to the rights of such author and publisher as between themselves._ 5. A literary or artistic work first produced simultaneously in two or more countries of the Copyright Union shall be deemed for the purpose of copyright to have been first produced in that one of those countries in which the term of copyright in the work is shortest. 6. Section 6 of the International Copyright Act, 1852, shall not apply to any dramatic piece to which protection is extended by virtue of this Order. 7. The Orders mentioned in the Second Schedule to this Order are hereby revoked[1783]: Provided that neither such revocation, nor anything else in this Order, shall prejudicially affect any right acquired or accrued before the commencement of this Order by virtue of any Order hereby revoked, and any person entitled to such right shall continue entitled thereto and to the remedies for the same, in like manner as if this Order had not been made. 8. This Order shall be construed as if it formed part of the International Copyright Act, 1886. 9. This Order shall come into operation on December 6, 1887, which day is in this Order referred to as the commencement of this Order. And the Lords Commissioners of Her Majesty's Treasury are to give necessary orders herein accordingly. FIRST SCHEDULE. [BERNE CONVENTION, 1886, WITH ADDITIONAL ARTICLE AND FINAL PROTOCOL.] SECOND SCHEDULE. ORDERS IN COUNCIL REVOKED. Orders in Council, of the dates named below, for securing the privileges of copyright in Her Majesty's dominions to authors of works of literature, and the fine arts, and dramatic pieces, and musical compositions first produced in the following foreign countries, namely: -----------------------------------+---------------------------- Foreign Country. | Date of Entry. -----------------------------------+---------------------------- Prussia | 27th August 1846 Saxony | 26th September 1846 Brunswick | 24th April 1847 The States of the Thuringian Union | 10th August 1847 Hanover | 30th October 1847 Oldenburg | 11th February 1848 France | 10th January 1852 Anhalt Dessau and Anhalt Bernbourg | 11th March 1853 Hamburg | 25th November 1853, and 8th July | 1855 Belgium | 8th February 1855 Prussia, Saxony, Saxe-Weimar | 19th October 1855 Spain | 24th September 1857, and 20th | November 1880 The States of Sardinia | 4th February 1861 Hesse-Darmstadt | 5th February 1862 Italy | 9th September 1865 German Empire | 24th September 1886 -----------------------------------+---------------------------- The Order in Council of 5th August 1875, revoking the application of Section 6 of 15 & 16 Vict. c. 12 to dramatic pieces referred to in the Order in Council of 10th January 1852 with respect to works first published in France. THE ADDITIONAL ACT OF PARIS, 1896. ARTICLE I. The International Convention of the 9th September 1886, is modified as follows: 1. Article II.--The first paragraph of Article II. shall run as follows: "Authors belonging to any one of the countries of the Union, or their lawful representatives, shall enjoy in the other countries for their works, whether unpublished, or published for the first time in one of those countries, the rights which the respective laws do now or shall hereafter grant to nationals." A fifth paragraph is added in these terms: "Posthumous works are included among those to be protected." 2. Article III.--Article III. shall run as follows: "Authors not belonging to one of the countries of the Union, who shall have published or caused to be published for the first time their literary or artistic works in a country which is a party to the Union, shall enjoy, in respect of such works, the protection accorded by the Berne Convention, and by the present Additional Act." 3. Article V.--The first paragraph of Article V. shall run as follows: "Authors belonging to any one of the countries of the Union, or their lawful representatives, shall enjoy in the other countries the exclusive right of making or authorising the translation of their works during the entire period of their right over the original work. Nevertheless, the exclusive right of translation shall cease to exist if the author shall not have availed himself of it, during a period of ten years from the date of the first publication of the original work, by publishing or causing to be published in one of the countries of the Union, a translation in the language for which protection is to be claimed." 4. Article VII.--Article VII. shall run as follows: "Serial stories, including tales, published in the newspapers or periodicals of one of the countries of the Union, may not be reproduced, in original or translation, in the other countries, without the sanction of the authors or of their lawful representatives. "This stipulation shall apply equally to other articles in newspapers or periodicals, when the authors or editors shall have expressly declared in the newspaper or periodical itself in which they shall have been published that the right of reproduction is prohibited. In the case of periodicals it shall suffice if such prohibition be indicated in general terms at the beginning of each number. "In the absence of prohibition, such articles may be reproduced on condition that the source is acknowledged. "In any case, the prohibition shall not apply to articles on political questions, to the news of the day, or to miscellaneous information." 5. Article XII.--Article XII. shall run as follows: "Pirated works may be seized by the competent authorities of the countries of the Union where the original work is entitled to legal protection. "The seizure shall take place conformably to the domestic law of each State." 6. Article XX. The second paragraph of Article XX. shall run as follows: "Such denunciation shall be made to the Government of the Swiss Confederation. It shall only be effective as regards the country making it, the Convention remaining in full force and effect for the other countries of the Union." ARTICLE II. The final Protocol annexed to the Convention of the 9th September 1886, is modified as follows: 1. No. 1.--This clause shall run as follows: "As regards Article IV., it is agreed as follows: "(A.) In countries of the Union where protection is accorded not only to architectural plans, but also to the architectural works themselves, these works shall be admitted to the benefits of the Berne Convention and of the present Additional Act. "(B.) Photographic works and works produced by an analogous process shall be admitted to the benefits of these engagements in so far as the laws of each State may permit, and to the extent of the protection accorded by such laws to similar national works. "It is understood that an authorised photograph of a work of art shall enjoy legal protection in all the countries of the Union, as contemplated by the Berne Convention and by the present Additional Act, for the same period as the principal right of reproduction of the work itself subsists, and within the limits of private arrangements between those who have legal rights." 2. No. 4.--This clause shall run as follows: "The common agreement contemplated in Article XIV. of the Convention is established as follows: "The application of the Berne Convention and of the present Additional Act to works which have not fallen into the public domain within the country of origin at the time when these engagements come into force, shall operate according to such stipulations on this head as may be contained in special Conventions either actually existing or to be concluded hereafter. "In the absence of such stipulations between any of the countries of the Union, the respective countries shall regulate, each for itself, by its domestic legislation, the manner in which the principle contained in Article XIV. is to be applied. "The stipulations of Article XIV. of the Berne Convention and of the present clause of the Final Protocol shall apply equally to the exclusive right of translation, in so far as such right is established by the present Additional Act. "The temporary stipulations noted above shall be applicable to countries which may hereafter accede to the Union." ARTICLE III. The countries of the Union which are not parties to the present Additional Act, shall at any time be allowed to accede thereto on their request to that effect. This stipulation shall apply equally to countries which may hereafter accede to the Convention of the 9th September 1886. It will suffice for this purpose that such accession should be notified in writing to the Swiss Federal Council, who shall in turn communicate it to the other Governments. ARTICLE IV. The present Additional Act shall have the same force and duration as the Convention of the 9th September 1886. It shall be ratified, and the ratifications shall be exchanged at Paris, in the manner adopted in the case of that Convention, as soon as possible, and within the space of one year at the latest. It shall come into force as regards those countries which shall have ratified it three months after such exchange of ratifications. In witness whereof the respective Plenipotentiaries have signed the same, and have affixed thereto the seal of their arms. Done at Paris in a single transcript, the 4th May 1896. _Procès-Verbal recording Deposit of Ratification._ Circumstances having prevented action being taken within the period of delay originally fixed for the exchange of the ratifications of the Additional Act of the 4th May 1896, modifying Articles II., III., V., VII., XII., and XX. of the Convention of the 9th September 1886, and clauses 1 and 4 of the Final Protocol annexed thereto, as well as of the Declaration interpreting certain stipulations of the Convention of Berne of the 9th September 1886, and of the Additional Act signed at Paris on the 4th May 1896, it has been unanimously agreed that that period should be prolonged until this day. In consequence whereof the Undersigned have met together in order to deposit the instruments in question. Germany, Belgium, Spain, France, Italy, Luxembourg, Monaco, Montenegro, Switzerland, and Tunis have ratified both engagements. Great Britain has ratified the Additional Act alone, on behalf of the United Kingdom, as well as of all the British Colonies and Possessions. Norway has only ratified the interpretative Declaration. The respective ratifications having been produced and found to be in good and due form, have been handed to the French Minister for Foreign Affairs, in order that they may be deposited in the archives of the Ministry, such deposit to be held equivalent to an exchange of ratifications. In faith of which the Undersigned have prepared the present Record of deposit, to which they have affixed their seals. Done at Paris, the 9th September 1897. For Germany: (L. S.) (Signed) VON M�LLER. For Belgium: (L. S.) (Signed) Baron ALB. FALLON. For Spain: (L. S.) (Signed) Le Marquis DE NOVALLAS. For France: (L. S.) (Signed) G. HANOTAUX. For Great Britain: (L. S.) (Signed) EDMUND MONSON. For Italy: (L. S.) (Signed) G. TORNIELLI. For Luxembourg: (L. S.) (Signed) EUG�NE LOUIS BASTIN. For Monaco: (L. S.) (Signed) J. DEPELLEY. For Montenegro: (L. S.) (Signed) H. MARCEL. For Norway: (L. S.) (Signed) Comte WRANGEL. For Switzerland: (L. S.) (Signed) DUPLAN. For Tunis: (L. S.) (Signed) RENAULT. Certified to be a correct copy. (L. S.) (Signed) PH. CROSIER, _Minister Plenipotentiary_, _Chef du Service du Protocole._ ORDER IN COUNCIL, MARCH 7, 1898. Whereas, &c. (Preamble recites the Berne Convention, 1886, Order in Council November 28, 1887, other Orders in Council affecting countries subsequently acceding, and the Additional Act of Paris.) And whereas Her Majesty in Council is satisfied that the foreign countries named in the body of this Order and parties to the said Additional Act have made such provisions as it appears to Her Majesty expedient to require for the protection of authors of works first produced in Her Majesty's dominions: Now therefore Her Majesty, by and with the advice of Her Privy Council and by virtue of the authority committed to Her by the International Copyright Acts, 1844 to 1886, doth order, and it is hereby ordered as follows: (1.) The Additional Act of the Berne Convention set forth in the Schedule to this Order shall as from the commencement of this Order have full effect throughout Her Majesty's dominions, and all persons are enjoined to observe the same. (2.) This Order shall extend to the foreign countries following, that is to say:[1784] Germany, Belgium, Spain, France, Italy, Luxembourg, Monaco, Montenegro, Switzerland, and Tunis. (3.) The fourth article of the Order in Council of November 28, 1887, shall as from the commencement of this Order cease to apply to the foreign countries to which this Order extends: (4.) The Order in Council of November 28, 1887, shall continue to be of full force and effect save in so far as the same is varied by this Order. (5.) Nothing contained in this Order shall prejudicially affect any right acquired or accrued before the commencement of this Order by virtue of the said Order in Council of November 28, 1887, or otherwise, and any person entitled to such right shall continue entitled thereto and to the remedies for the same in like manner as if this Order had not been made. (6.) The author of any literary or artistic work first produced before the commencement of this Order shall have the rights and remedies to which he is entitled under section 6 of The International Copyright Act, 1886. (7.) This Order shall be construed as if it formed part of The International Copyright Act, 1886. (8.) This Order shall come into operation on the date hereof, which day is in this Order referred to as the commencement of this Order. And the Lords Commissioners of Her Majesty's Treasury are to give the necessary orders herein accordingly. TREASURY MINUTE TREASURY MINUTE[1785] DEALING WITH THE COPYRIGHT IN GOVERNMENT PUBLICATIONS, AUGUST 31, 1887. My Lords take into consideration the correspondence which has passed between the Treasury and the Stationery Office on the subject of Copyright in Government publications. The law gives to the Crown, or the assignee of the Crown, the same right of copyright as to a private individual. Consequently, if a servant of the Crown, in the course of his duty for which he is paid, composes any document, or if a person is specially employed and paid by the Crown for the purpose of composing any document, the copyright in the document belongs to the Crown as it would in the case of a private employer. The majority of publications issued under the authority of the Government have no resemblance to the works published by private publishers, and are published for the information of the public and for public use, in such manner as any one of the public may wish, and it is desirable that the knowledge of their contents should be diffused as widely as possible. In other cases the Government publishes at considerable cost works in which few persons only are interested, but which are published for the purpose of promoting literature and science. These works are of precisely the same character as those published by private enterprise. In order to prevent an undue burden being thrown on the taxpayer by these works, and to enable the Government to continue the publication of works of this character to the same extent as heretofore, it is necessary to place them, as regards copyright, in the same position as publications by private publishers. If the reproduction of them, or of the most popular portions of them, by private publishers, is permitted, the private publisher will be able to put into his own pocket the profits of the work, which ought to go in relief of the general public, the taxpayers. The question, then, is, what are the classes of works the reproduction of which is to be restricted, or to be left unrestricted? Government publications may be classified as follows: (1.) Reports of Select Committees of the two Houses of Parliament, or of Royal Commissions. (2.) Papers required by Statute to be laid before Parliament, _e. g._, Orders in Council, Rules made by Government Departments, Accounts, Reports of Government Inspectors. (3.) Papers laid before Parliament by Command, _e. g._, Treaties, Diplomatic Correspondence, Reports from Consuls and Secretaries of Legation, Reports of Inquiries into Explosions or Accidents, and other Special Reports made to Government Departments. (4.) Acts of Parliament. (5.) Official books, _e. g._, Queen's Regulations for the Army or Navy. (6.) Literary or quasi-literary works, _e. g._, the Reports of the _Challenger_ Expedition, the Rolls Publication, the forthcoming State Trials, the "Board of Trade Journal." (7.) Charts and Ordnance Maps. As respects the first five classes of publications, the reproduction of them, with certain exceptions, should not be restricted in any form whatever. Indeed, in most cases it is desirable that they should be made known to the public as widely as possible. The first exception is, that Acts of Parliament and official books should not, except when published under the authority of the Government, purport on the face of them to be published by authority. The second exception is, where a work of a literary or quasi-literary character comes accidentally within these classes. For example, the Reports of the Historical Manuscripts Commission would, but for the fact that they were produced under the direction of a Commission instead of under the Master of the Rolls, be published in the ordinary manner like the Rolls publications, and come within Class 6. So, again, a Report to a Government Department may be laid before Parliament made by a person of eminent scientific knowledge who is willing to give the Government and the public the advantage of his knowledge, but not to allow it to be reproduced for the private benefit of an individual publisher. Mr. Whitehead's Reports on Injurious Insects are an instance of this case. Other exceptions will, no doubt, from time to time occur, which can only be dealt with as they arise. As regards the sixth and seventh classes above mentioned, it seems desirable that the copyright in them should be enforced in the interests of the taxpayer, and of literature and science. For, as pointed out above, unless copyright is enforced, cheap copies of the works, or of the popular portion of them, can be produced by private publishers, who reap the profit at the expense of the taxpayer. And as such works are in any case a burden on the taxpayer, the greater the burden the fewer works can the Government, with justice to the taxpayer, undertake. Notice of the intention to enforce the copyright in any work should be given to the public. In the case of future works this notice can be given by prefixing to the work a notice to the effect that the rights of copyright are reserved. In the case of past works it will be desirable to inform the publishing trade of the works the reproduction of which, without permission, is forbidden. As respects Acts of Parliament, the Government, in obedience to the wishes of Parliament expressed by Select Committees, are bound to publish an edition of them by authority as cheaply as practicable, and a nearly similar remark applies to official publications. For this purpose the Comptroller of the Stationery Office shall be appointed Her Majesty's Printer, but care will be taken not to infringe on any existing privileges granted by the Crown. Let instructions be given to the Comptroller of the Stationery Office and to the Solicitor in pursuance of this Minute. AMERICAN STATUTES REVISED STATUTES, 1874. TITLE lx. c. 3. [Approved June 22, 1874.] [Sidenote: Copyrights to be under charge of Librarian of Congress.] SEC. 4948. All records and other things relating to copyrights and required by law to be preserved shall be under the control of the Librarian of Congress, and kept and preserved in the Library of Congress; and the Librarian of Congress shall have the immediate care and supervision thereof, and, under the supervision of the joint committee of Congress on the Library, shall perform all acts and duties required by law touching copyrights. [Sidenote: Seal of Office.] SEC. 4949. The seal provided for the office of the Librarian of Congress shall be the seal thereof, and by it all records and papers issued from the office and to be used in evidence shall be authenticated. [Sidenote: Bond of Librarian.] SEC. 4950. The Librarian of Congress shall give a bond, with sureties, to the Treasurer of the United States, in the sum of five thousand dollars, with the condition that he will render to the proper officers of the Treasury a true account of all monies received by virtue of his office. [Sidenote: Annual Report.] SEC. 4951. The Librarian of Congress shall make an annual report to Congress of the number and description of copyright publications for which entries have been made during the year. [Sidenote: What publications may be entered for Copyright.] SEC. 4952. _Any Citizen of the United States or resident therein who shall be the author, inventor, designer, or proprietor of any book, map, chart, dramatic or musical composition, engraving, cut, print,[1786] or photograph or negative thereof, or of a painting, drawing, chromo, statue, statuary, or of models or designs intended to be perfected as works of the fine arts, and the executors, administrators, or assigns of any such person shall, upon complying with the provisions of this chapter, have the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending, the same; and in the case of a dramatic composition of publicly performing or representing it, or causing it to be performed or represented by others. And authors may reserve the right to dramatize or to translate their own works._[1787] [Sidenote: Term of Copyrights.] SEC. 4953. Copyrights shall be granted for the term of twenty-eight years from the time of recording the title thereof, in the manner hereinafter directed. [Sidenote: Continuance of Term.] SEC. 4954. _The author, inventor, or designer, if he be still living and a citizen of the United States or resident therein, or his widow or children, if he be dead, shall have the same exclusive right continued for the further term of fourteen years, upon recording the title of the work or description of the article so secured a second time, and complying with all other regulations in regard to original copyrights, within six months before the expiration of the first term. And such person shall, within two months from the date of said renewal, cause a copy of the record thereof to be published in one or more newspapers, printed in the United States, for the space of four weeks._[1788] [Sidenote: Assignment of Copyrights and recording.] SEC. 4955. Copyrights shall be assignable in law by any instrument of writing, and such assignment shall be recorded in the office of the Librarian of Congress within sixty days after its execution; in default of which it shall be void as against any subsequent purchaser, or mortgagee for a valuable consideration, without notice. [Sidenote: Deposit of title and published copies.] SEC. 4956. _No person shall be entitled to a copyright unless he shall, before publication, deliver at the office of the Librarian of Congress, or deposit in the mail addressed to the Librarian of Congress at Washington, District of Columbia, a printed copy of the title of the book or other article, or a description of the painting, drawing, chromo, statue, statuary, or a model or design for a work of the fine arts, for which he desires a copyright, nor unless he shall also within ten days from the publication thereof[1789] deliver_ _at the office of the Librarian of Congress or deposit in the mail addressed to the Librarian of Congress at Washington, District of Columbia, two copies of such copyright book or other article, or in case of a painting, drawing, statue, statuary, model, or design for a work of the fine arts, a photograph of the same._[1790] [Sidenote: Record of entry and attested copy]. SEC. 4957. The Librarian of Congress shall record the name of such copyright book or other article forthwith, in a book to be kept for that purpose, in the words following: "Library of Congress, to wit: Be it remembered that on the ----day of ----, A. B., of ----, hath deposited in this office the title of a book (map, chart, or otherwise as the case may be, or a description of the article), the title or description of which is in the following words, to wit: (here insert the title or description) the right whereof he claims as author (originator or proprietor as the case may be) in conformity with the laws of the United States respecting copyrights. C. D., Librarian of Congress." And he shall give a copy of the title or description, under the seal of the Librarian of Congress, to the proprietor whenever he shall require it. [Sidenote: Fees.] SEC. 4958. _The Librarian of Congress shall receive from the persons to whom the services designated are rendered the following fees_: _First. For recording the title or description of any copyright book or other article, fifty cents._ _Second. For every copy under seal of such record actually given to the person claiming the copyright, or his assigns, fifty cents._ _Third. For recording any instrument of writing for the assignment of a copyright, fifteen cents for every one hundred words._[1791] _All fees so received shall be paid into the Treasury of the United States._[1792] [Sidenote: Copies of Copyright works to be furnished to Librarian of Congress.] SEC. 4959. _The proprietor of every copyright book or other article shall deliver at the office of the Librarian of Congress, or deposit in the mail addressed to the Librarian of Congress at Washington, District of Columbia, within ten days after its publication, two complete printed copies thereof, of the best edition issued, or description or photograph of such article as hereinbefore required, and a copy of every subsequent edition wherein any substantial changes shall be made._[1793] [Sidenote: Penalty for omission] SEC. 4960. For every failure on the part of the proprietor of any copyright to deliver or deposit in the mail either of the published copies or description or photograph, required by sections 4956 and 4959, the proprietor of the copyright shall be liable to a penalty of twenty-five dollars, to be recovered by the Librarian of Congress, in the name of the United States, in an action in the nature of an action of debt in any district court of the United States, within the jurisdiction of which the delinquent may reside or be found. [Sidenote: Postmasters to give receipts.] SEC. 4961. The postmaster to whom such copyright book, title, or other article is delivered, shall, if requested, give a receipt therefor; and when so delivered he shall mail it to its destination. [Sidenote: Publication of notice of entry for Copyright prescribed.] SEC. 4962. No person shall maintain an action for the infringement of his copyright unless he shall give notice thereof by inserting in the several copies of every edition published, on the title-page or the page immediately following, if it be a book; or if a map, chart, musical composition, print, cut, engraving, photograph, painting, drawing, chromo, statue, statuary, or model or design intended to be perfected and completed as a work of the fine arts, by inscribing _upon some portion of the face or front thereof, or on the face of the substance on which the same shall be mounted_,[1794] the following words, "Entered according to Act of Congress, in the year ----, by A. B., in the office of the Librarian of Congress at Washington."[1795] [Sidenote: Penalty for false publication of notice of entry.] SEC. 4963. _Every person who shall insert or impress such notice or words of the same purport, in or upon any book, map, chart, musical composition, print, cut, engraving, or photograph, or other article for which he has not obtained a copyright, shall be liable to a penalty of one hundred dollars, recoverable one-half by the person who shall sue for such penalty, and one-half to the use of the United States._[1796] [Sidenote: Damages for violation of Copyright of books.] SEC. 4964. _Every person who after the recording of the title of any book as provided by this chapter shall, within the term limited and without the consent of the proprietor of the copyright first obtained in writing, signed in presence of two or more witnesses, print, publish, or import, or, knowing the same to be so printed, published, or imported, shall sell or expose to sale any copy of such book, shall forfeit every copy thereof to such proprietor, and shall also forfeit and pay such damages as may be recovered in a civil action by such proprietor in any court of competent jurisdiction._[1797] [Sidenote: For violating Copyright of maps, charts, prints, &c.] SEC. 4965. _If any person after the recording of the title of any map, chart, musical composition, print, cut, engraving, or photograph, or chromo, or of the description of any painting, drawing, statue, statuary, or model, or design intended to be perfected and executed as a work of the fine arts, as provided by this chapter shall, within the term limited and without the consent of the proprietor of the copyright first obtained in writing, signed in presence of two or more witnesses, engrave, etch, work, copy, print, publish, or import, either in whole or in part, or by varying the main design with intent to evade the law, or, knowing the same to be so printed, published, or imported, shall sell or expose to sale any copy of such maps or other article, as aforesaid, he shall forfeit to the proprietor all the plates on which the same shall be copied, and every sheet thereof either copied or printed, and shall further forfeit one dollar for every sheet of the same found in his possession, either printing, printed, copied, published, imported, or exposed for sale; and in case of a painting, statue, or statuary he shall forfeit ten dollars for every copy of the same in his possession, or by him sold or exposed for sale; one-half thereof to the proprietor, and the other half to the use of the United States._[1798] [Sidenote: For violating Copyright of dramatic compositions.] SEC. 4966. _Any person publicly performing or representing any dramatic composition for which a copyright has been obtained without the consent of the proprietor thereof or his heirs or assigns, shall be liable for damages therefor, such damages in all cases to be assessed at such sum, not less than one hundred dollars for the first, and fifty dollars for every subsequent performance, as to the court shall appear to be just._[1799] [Sidenote: Damages for printing or publishing any manuscript without consent of author, &c.] SEC. 4967. _Every person who shall print or publish any manuscript whatever without the consent of the author or proprietor first obtained, if such author or proprietor is a citizen of the United States, or resident therein, shall be liable to the author or proprietor for all damages occasioned by such injury._[1800] [Sidenote: Limitation of action in Copyright cases.] SEC. 4968. No action shall be maintained in any case of forfeiture or penalty under the copyright laws unless the same is commenced within two years after the cause of action has arisen. [Sidenote: Defences to action in Copyright cases.] SEC. 4969. In all actions arising under the laws respecting copyrights, the defendant may plead the general issue, and give the special matter in evidence. [Sidenote: Injunctions in Copyright cases.] SEC. 4970. The circuit courts, and district courts having the jurisdiction of circuit courts, shall have power upon bill in equity, filed by any party aggrieved, to grant injunctions to prevent the violation of any right secured by the laws respecting copyrights, according to the course and principles of courts of equity on such terms as the courts may deem reasonable. [Sidenote: Aliens and non-residents not privileged.] SEC. 4971. _Nothing in this chapter shall be construed to prohibit the printing, publishing, importation, or sale of any book, map, chart, dramatic or musical composition, print, cut, engraving or photograph, written, composed, or made by any person not a citizen of the United States nor resident therein._[1801] [Sidenote: Writs of error and appeals without reference to amount.] SEC. 699. A writ of error may be allowed to review any final judgment at law, and an appeal shall be allowed from any final decree in equity hereinafter mentioned without regard to the sum or value in dispute. First. By final judgment at law or final decree in equity of any circuit court, or of any district court acting as a circuit court, or of the Supreme Court of the District of Columbia, or of any Territory, in any case touching patent rights or copyrights. [Sidenote: Exclusive jurisdiction of Courts of United States.] SEC. 711. The jurisdiction vested in the courts of the United States in the cases and proceedings hereinafter mentioned, shall be exclusive of the courts of the several States. Fifth. Of all cases arising under the patent-right or copyright laws of the United States. [Sidenote: Full costs allowed.] SEC. 972. In all recoveries under the copyright laws either for damages, forfeitures, or penalties, full costs shall be allowed thereon. [Sidenote: Copyrights vest in Assignee in bankruptcy.] SEC. 5046. All ... patent rights, and copyrights ... shall in virtue of the adjudication of bankruptcy and the appointment of an assignee ... be at once vested in such assignee. [Sidenote: Repeal of Acts.] SEC. 5596. All Acts of Congress passed prior to December 1, 1873, any portion of which is embraced in any section of the Revised Statutes, are hereby repealed, and the section applicable thereto shall be in force in lieu thereof.... [Sidenote: Acts passed since 1st December 1873, not affected.] SEC. 5601. The enactment of the said Revision is not to affect or repeal any Act of Congress passed since December 1, 1873, and all Acts passed since that date are to have full effect as if passed after the enactment of this revision, and so far as such Acts vary from and conflict with any provision contained in said revision, they are to have effect as subsequent statutes, and as repealing any portion of the revision inconsistent therewith. ACT OF CONGRESS, JUNE 18, 1874. [Sidenote: No right of action for infringement unless notice of entry.] [Sidenote: Optional modes of entry.] Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That no person shall maintain an action for the infringement of his copyright unless he shall give notice thereof by inserting in the several copies of every edition published, on the title-page or the page immediately following, if it be a book; or if a map, chart, musical composition, print, cut, engraving, photograph, painting, drawing, chromo, statue, statuary, or model or design intended to be perfected and completed as a work of the fine arts, by inscribing upon some visible portion thereof, or of the substance on which the same shall be mounted, the following words, viz.:--"Entered according to Act of Congress in the year --by A. B., in the office of the Librarian of Congress at Washington," or at his option the word "Copyright" together with the year the copyright was entered, and the name of the party by whom it was taken out; thus--"Copyright, 18--, by A. B." [Sidenote: Fees.] SEC. 2. _That for recording and certifying any instrument of writing for the assignment of a copyright, the Librarian of Congress shall receive, from the persons to whom the service is rendered, one dollar; and for every copy of an assignment, one dollar; said fee to cover in either case a certificate of the record, under seal of the Librarian of Congress; and all fees so received shall be paid into the Treasury of the United States._[1802] [Sidenote: "Engraving," "Cut" and "Print" not to extend to labels.] [Sidenote: Commissioner of Patents charged with supervision of labels.] SEC. 3. That in the construction of this Act the words "engraving," "cut" and "print" shall be applied only to pictorial illustrations or works connected with the fine arts, and no prints or labels designed to be used for any other articles of manufacture shall be entered under the copyright law, but may be registered in the Patent Office. And the Commissioner of Patents is hereby charged with the supervision and control of the entry or registry of such prints or labels, in conformity with the regulations provided by law as to copyright of prints except that there shall be paid for recording the title of any print or label not a trade mark, six dollars, which shall cover the expense of furnishing a copy of the record under the seal of the Commissioners of Patents, to the party entering the same. SEC. 4. That all laws and parts of laws inconsistent with the foregoing provisions be, and the same are hereby repealed. SEC. 5. That this Act shall take effect on August 1, 1874. ACT OF CONGRESS, AUGUST 1, 1882. [Sidenote: R. S. 4962, amended notice of Copyright on decorative articles.] Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That manufacturers of designs for moulded decorative articles, tiles, plaques, or articles of pottery or metal subject to copyright may put the copyright mark prescribed by Section 4962 of the Revised Statutes, and Acts additional thereto, upon the back or bottom of such articles, or in such other place upon them as it has heretofore been usual for manufacturers of such articles to employ for the placing of manufacturers, merchants, and trade marks thereon. ACT OF CONGRESS, OCTOBER 1, 1890. An Act to reduce the revenue and equalise duties on imports, and for other purposes. SEC. 2. On and after October 6, 1890, unless otherwise specially provided for in this Act, the following articles when imported shall be exempt from duty: * * * * * 512. Books, engravings, photographs, bound or unbound, etchings, maps and charts, which shall have been printed and bound or manufactured more than twenty years at the date of importation. 513. Books and pamphlets printed exclusively in languages other than English; also books and music in raised print used exclusively by the blind. 514. Books, engravings, photographs, etchings, bound or unbound, maps and charts imported by authority, or for the use of the United States, or for the use of the Library of Congress. 515. Books, maps, lithographic prints, and charts, specially imported, not more than two copies in any one invoice, in good faith for the use of any society incorporated or established for educational, philosophical, literary or religious purposes, or for the encouragement of the fine arts, or for the use or by order of any college, academy, school or seminary of learning in the United States, subject to such regulations as the secretary of the Treasury shall prescribe. 516. Books, or libraries, or parts of libraries, and other household effects of persons or families from foreign countries, if actually used abroad by them not less than one year, and not intended for any other person or persons, nor for sale. ACT OF CONGRESS, MARCH 3, 1891. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section forty-nine hundred and fifty-two of the Revised Statutes be, and the same is hereby amended so as to read as follows: [Sidenote: Persons and publications entitled to Copyright.] "SEC. 4952. The author, inventor, designer, or proprietor of any book, map, chart, dramatic or musical composition, engraving, cut, print, or photograph or negative thereof, or of a painting, drawing, chromo, statue, statuary, and of models or designs intended to be perfected as works of the fine arts, and the executors, administrators, or assigns of any such person shall, upon complying with the provisions of this chapter, have the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same; and, in the case of dramatic composition, of publicly performing or representing it or causing it to be performed or represented by others; and authors or their assigns shall have exclusive right to dramatize and translate any of their works for which copyright shall have been obtained under the laws of the United States." SEC. 2. That section forty-nine hundred and fifty-four of the Revised Statutes be, and the same is hereby amended so as to read as follows: [Sidenote: Further term of exclusive right.] "Sec. 4954. The author, inventor, or designer, if he be still living, or his widow or children, if he be dead, shall have the same exclusive right continued for the further term of fourteen years, upon recording the title of the work or description of the article so secured a second time, and complying with all other regulations in regard to original copyrights, within six months before the expiration of the first term; and such persons shall, within two months from the date of said renewal, cause a copy of the record thereof to be published in one or more newspapers printed in the United States for the space of four weeks." SEC. 3. That section forty-nine hundred and fifty-six of the Revised Statutes of the United States be, and the same is hereby amended so that it shall read as follows: [Sidenote: Deposit of title or description before publication.] [Sidenote: Two copies of work or photograph on day of publication.] [Sidenote: To be made in the United States.] [Sidenote: Importation of Foreign editions prohibited.] "SEC. 4956. No person shall be entitled to a copyright unless he shall, on or before the day of publication in this or any foreign country, deliver at the office of the Librarian of Congress, or deposit in the mail within the United States, addressed to the Librarian of Congress at Washington, District of Columbia, a printed copy of the title of the book, map, chart, dramatic or musical composition, engraving, cut, print, photograph, or chromo, or a description of the painting, drawing, statue, statuary, or a model or design for a work of the fine arts for which he desires a copyright, nor unless he shall also, not later than the day of the publication thereof[1803] in this or any foreign country, deliver at the office of the Librarian of Congress at Washington, District of Columbia, or deposit in the mail within the United States, addressed to the Librarian of Congress at Washington, District of Columbia, two copies of such copyright book, map, chart, dramatic or musical composition, engraving, chromo, cut, print, or photograph, or in case of a painting, drawing, statue, statuary, model, or design for a work of the fine arts, a photograph of same: Provided, That in the case of a book, photograph, chromo, or lithograph, the two copies of the same required to be delivered or deposited as above shall be printed from type set within the limits of the United States, or from plates made therefrom, or from negatives, or drawings on stone made within the limits of the United States, or from transfers made therefrom. During the existence of such copyright the importation into the United States of any book, chromo, lithograph, or photograph so copyrighted, or any edition or editions thereof, or any plates of the same not made from type set, negatives, or drawings on stone made within the limits of the United States, shall be, and it is hereby, prohibited, except in the cases specified in paragraphs 512 to 516, inclusive in section 2 of the Act of Congress, October 1, 1890, and except in the case of persons purchasing for use and not for sale, who import, subject to the duty thereon, not more than two copies of such book at any one time, and except in the case of newspapers and magazines not containing in whole or in part matter copyrighted under the provisions of this Act, unauthorised by the author, which are hereby exempted from prohibition of importation: Provided, nevertheless, That in the case of books in foreign languages, of which only translations in English are copyrighted; the prohibition of importation shall apply only to the translations of the same, and the importation of the books in the original language shall be permitted." [Sidenote: Fees.] SEC. 4. That section forty-nine hundred and fifty-eight of the Revised Statutes be, and the same is hereby amended so that it will read as follows: "SEC. 4958. The Librarian of Congress shall receive from the persons to whom the services designated are rendered the following fees: "First. For recording the title or description of any copyright book or other article, fifty cents. "Second. For every copy under seal of such record actually given to the person claiming the copyright, or his assigns, fifty cents. "Third. For recording and certifying any instrument of writing for the assignment of a copyright, one dollar. "Fourth. For every copy of an assignment, one dollar. "All fees so received shall be paid into the Treasury of the United States: Provided, That the charge for recording the title or description of any article entered for copyright, the production of a person not a citizen or resident of the United States, shall be one dollar, to be paid as above into the Treasury of the United States, to defray the expenses of lists of copyrighted articles as hereinafter provided for. [Sidenote: List of copyrighted articles to be furnished Treasury.] [Sidenote: Weekly Catalogues.] "And it is hereby made the duty of the Librarian of Congress to furnish to the Secretary of the Treasury copies of the entries of titles of all books and other articles wherein the copyright has been completed by the deposit of two copies of such book printed from type set within the limits of the United States, in accordance with the provisions of this Act and by the deposit of two copies of such other article made or produced in the United States; and the Secretary of the Treasury is hereby directed to prepare and print, at intervals of not more than a week, catalogues of such title-entries for distribution to the collectors of customs of the United States and to the postmasters of all post offices receiving foreign mails, and such weekly lists, as they are issued, shall be furnished to all parties desiring them, at a sum not exceeding five dollars per annum; and the Secretary and the Postmaster-General are hereby empowered and required to make and enforce such rules and regulations as shall prevent the importation into the United States, except upon the conditions above specified, of all articles prohibited by this Act." SEC. 5. That section forty-nine hundred and fifty-nine of the Revised Statutes be, and the same is hereby amended so as to read as follows: [Sidenote: Copy of subsequent editions.] "SEC. 4959. The proprietor of every copyright book or other article shall deliver at the office of the Librarian of Congress, or deposit in the mail, addressed to the Librarian of Congress at Washington, District of Columbia, a copy of every subsequent edition wherein any substantial changes shall be made: Provided, however, That the alterations, revisions, and additions made to books by foreign authors, heretofore published, of which new editions shall appear subsequently to the taking effect of this Act, shall be held and deemed capable of being copyrighted as above provided for in this Act, unless they form a part of the series in course of publication at the time this Act shall take effect." SEC. 6. That section forty-nine hundred and sixty-three of the Revised Statutes be, and the same is hereby amended so as to read as follows: [Sidenote: Penalty for false notice of entry.] "SEC. 4963. _Every person who shall insert or impress such notice, or words of the same purport, in or upon any book, map, chart, dramatic or musical composition, print, cut, engraving, or photograph, or other article, for which he has not obtained a copyright, shall be liable to a penalty of one hundred dollars, recoverable one-half for the person who shall sue for such penalty and one-half to the use of the United States._"[1804] SEC. 7. That section forty-nine hundred and sixty-four of the Revised Statutes be, and the same is hereby amended so as to read as follows: [Sidenote: Violations of Copyright of books.] "SEC. 4964. Every person who, after the recording of the title of any book and the depositing of two copies of such book, as provided by this Act, shall, contrary to the provisions of this Act, within the term limited, and without the consent of the proprietor of the copyright first obtained in writing, signed in presence of two or more witnesses, print, publish, dramatize, translate, or import, or knowing the same to be so printed, published, dramatized, translated, or imported, shall sell or expose to sale any copy of such book, shall forfeit every copy thereof to such proprietor, and shall also forfeit and pay such damages as may be recovered in a civil action by such proprietor in any court of competent jurisdiction." SEC. 8. That section forty-nine hundred and sixty-five of the Revised Statutes be, and the same is hereby so amended as to read as follows: [Sidenote: Violations of Copyright of maps, prints, &c.] "SEC. 4965. _If any person, after the recording of the title of any map, chart, dramatic or musical composition, print, cut, engraving, or photograph, or chromo, or of the description of any painting, drawing, statue, statuary, or model or design intended to be perfected and executed as a work of the fine arts, as provided by this Act, shall within the term limited, contrary to the provisions of this Act, and without the consent of the proprietor of the copyright first obtained in writing, signed in presence of two or more witnesses, engrave, etch, work, copy, print, publish, dramatize, translate, or import, either in whole or in part, or by varying the main design with intent to evade the law, or, knowing the same to be so printed, published, dramatized, translated, or imported, shall sell or expose to sale any copy of such map or other article as aforesaid, he shall forfeit to the proprietor all the plates on which the same shall be copied and every sheet thereof, either copied or printed, and shall further forfeit one dollar for every sheet of the same found in his possession, either printing, printed, copied, published, imported, or exposed for sale, and in case of a painting, statue, or statuary, he shall forfeit ten dollars for every copy of the same in his possession, or by him sold or exposed for sale; one-half thereof to the proprietor and the other half to the use of the United States._"[1805] SEC. 9. That section forty-nine hundred and sixty-seven of the Revised Statutes be, and the same is hereby amended so as to read as follows: [Sidenote: Damages for printing manuscript.] "SEC. 4967. Every person who shall print or publish any manuscript whatever without the consent of the author or proprietor first obtained, shall be liable to the author or proprietor for all damages occasioned by such injury." [Sidenote: Alien products.] SEC. 10. That section forty-nine hundred and seventy-one of the Revised Statutes be, and the same is hereby repealed. [Sidenote: Volumes separately copyrightable.] SEC. 11. That for the purpose of this Act each volume of a book in two or more volumes, when such volumes are published separately and the first one shall not have been issued before this Act shall take effect, and each number of a periodical shall be considered an independent publication, subject to the form of copyrighting as above. SEC. 12. That this Act shall go into effect on the first day of July, anno domini eighteen hundred and ninety-one. [Sidenote: Applicable to citizens of foreign countries permitting similar rights.] SEC. 13. That this Act shall only apply to a citizen or subject of a foreign state or nation when such foreign state or nation permits to citizens of the United States of America the benefit of copyright on substantially the same basis as its own citizens; or when such foreign state or nation is a party to an international agreement which provides for reciprocity in the granting of copyright, by the terms of which agreement the United States of America may at its pleasure become a party to such agreement. The existence of either of the conditions aforesaid shall be determined by the President of the United States by proclamation made from time to time as the purposes of this Act may require. ACT OF CONGRESS, MARCH 3, 1893. [Sidenote: Extension of time for delivery of copies where such has been neglected.] [Sidenote: if delivered before 1st March 1893.] Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That any author, inventor, designer, or proprietor of any book, or other article entitled to copyright, who has heretofore failed to deliver in the office of the Librarian of Congress, or in the mail addressed to the Librarian of Congress, two complete copies of such book, or description or photograph of such article within the time limited by Title 60, chapter 3, of the Revised Statutes relating to copyrights and the Acts in amendment thereof, and has complied with all other provisions thereof, who has before March 1, 1893, delivered at the office of the Librarian of Congress or deposited in the mail addressed to the Librarian of Congress two complete printed copies of such book, or description or photograph of such article, shall be entitled to all the rights and privileges of said Title 60, chapter 3, of the Revised Statutes and Acts in amendment thereof. ACT OF CONGRESS, MARCH 2, 1895. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 4965 of the Revised Statutes be, and the same is hereby amended so as to read as follows: [Sidenote: Penalty for violations of Copyright of compositions, maps, prints, paintings, &c.] SEC. 4965. If any person after the recording of the title of any map, chart, dramatic or musical composition, print, cut, engraving or photograph, or chromo, or of the description of any painting, drawing, statue, statuary, or model or design intended to be perfected and executed as a work of the fine arts, as provided by this Act, shall, within the term limited, contrary to the provisions of this Act and without the consent of the proprietor first obtained in writing, signed in presence of two or more witnesses, engrave, etch, work, copy, print, publish, dramatize, translate, or import, either in whole or in part, or by varying the main design, with intent to evade the law, or knowing the same to be so printed, published, dramatized, translated, or imported shall sell or expose to sale any copy of such map or other article as aforesaid, he shall forfeit to the proprietor all the plates on which the same shall be copied, and every sheet thereof either copied or printed, and shall further forfeit one dollar for every sheet of the same found in his possession, either printing, printed, copied, published, imported, or exposed for sale; and in case of a painting, statue, or statuary, he shall forfeit ten dollars for every copy of the same in his possession, or by him sold or exposed for sale: Provided, however, That in case of any such infringement of the copyright of a photograph made from any object not a work of fine arts, the sum to be recovered in any action brought under the provisions of this section shall be not less than 100 dollars, nor more than 5000 dollars, and: Provided further, That in case of any such infringement of the copyright of a painting, drawing, statue, engraving, etching, print, or model or design for a work of the fine arts or of a photograph of a work of the fine arts, the sum to be recovered in any action brought through the provisions of this section shall not be less than 250 dollars, and not more than 10,000 dollars. One-half of all the foregoing penalties shall go to the proprietors of the copyright and the other half to the use of the United States. ACT OF CONGRESS, JANUARY 6, 1897. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 4966 of the Revised Statutes be, and the same is hereby amended so as to read as follows: SEC. 4966. Any person publicly performing or representing any dramatic or musical composition for which a copyright has been obtained, without the consent of the proprietor of said dramatic or musical composition or his heirs or assigns, shall be liable for damages therefor, such damages in all cases to be assessed at such sum not less than 100 dollars for the first and 50 dollars for every subsequent performance, as to the court shall appear to be just. If the unlawful performance and representation be wilful and for profit, such person or persons shall be guilty of a misdemeanour, and, upon conviction, be imprisoned for a period not exceeding one year. Any injunction that may be granted upon hearing, after notice to the defendant by any circuit court of the United States, or by a judge thereof restraining and enjoining the performance or representation of any such dramatic or musical composition, may be served on the parties against whom such injunction may be granted anywhere in the United States, and shall be operative and may be enforced by proceedings to punish for contempt or otherwise by any other circuit court or judge in the United States; but the defendants in said action or any or either of them may make a motion in any other circuit in which he or they may be engaged in performing or representing said dramatic or musical composition, to dissolve or set aside the said injunction upon such reasonable notice to the plaintiff as the circuit court or the judge before whom said motion shall be made shall deem proper; service of said motion to be made on the plaintiff in person or on his attorneys in the action. The circuit courts or judges thereof shall have jurisdiction to enforce said injunction, and to hear and determine a motion to dissolve the same, as herein provided, as fully as if the action were pending or brought in the circuit in which said motion is made. The clerk of the court or judge granting the injunction shall, when required so to do by the court hearing the application to dissolve or enforce said injunction, transmit without delay to said court a certified copy of all the papers on which the said injunction was granted that are on file in his office. ACT OF CONGRESS, MARCH 3, 1897. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 4963 of the Revised Statutes be, and the same is hereby amended so as to read as follows: SEC. 4963. Every person who shall insert or impress such notice or words of the same purport, in or upon any book, map, chart, dramatic or musical composition, print, cut, engraving or photograph, or other article, whether such article be subject to copyright or otherwise, for which he has not obtained a copyright in this country; or shall import any book, photograph, chromo, or lithograph or other article bearing such notice of copyright, or words of the same purport, which is not copyrighted in this country, shall be liable to a penalty of 100 dollars, recoverable one-half for the person who shall sue for such penalty, and one-half to the use of the United States; and the importation into the United States of any book, chromo, lithograph, or photograph, or other article bearing such notice of copyright, when there is no existing copyright thereon in the United States, is prohibited: and the circuit courts of the United States sitting in equity are hereby authorised to enjoin the issuing, publishing, or selling of any article marked or imported in violation of the United States copyright laws, at the suit of any person complaining of such violation: Provided that this Act shall not apply to any importation of or sale of such goods or articles brought into the United States prior to the passage hereof. SEC. 2. That all laws and parts of laws inconsistent with the foregoing provisions be and are hereby repealed. ADDENDUM MUSICAL (SUMMARY PROCEEDINGS) COPYRIGHT ACT, 1902. 2 EDW. VII. c. 15. Since this work went to press the Musical Copyright Bill mentioned on page 231 has received the Royal Assent and become law. The Act will come into operation on October 1, 1902, and its application is limited to the United Kingdom. The Act gives the owner of copyright music power to seize pirated copies of his works from any person who may hawk, carry about, sell, or offer for sale the same. To exercise this power he may proceed in one of two ways. He may apply to a court of summary jurisdiction, and on _primâ facie_ evidence the court will by order authorise a constable to seize the alleged pirated copies, or he may without applying to the court himself authorise a constable in writing to seize such copies. On the copies being seized by the constable they must be brought before the court, and on proof that they are pirated copies the court will order them to be destroyed or delivered to the owner of the copyright. If the owner authorises the seizure without an order from the court and fails to prove his case he might be liable in damages. If, therefore, the owner is not quite sure of his case he should first obtain the order of the court, which will relieve him from all responsibility, except costs, in the event of his failing. The Bill as originally brought into the House of Lords contained a clause empowering a court of summary jurisdiction to inflict a summary penalty on persons dealing with pirated music. It also proposed to give the court power to order a constable to search for pirated music on suspected premises. These remedies, however, were considered by the House of Commons to be too drastic and were omitted from the Act. INDEX INDEX The figures in black type indicate that the reference is to Part II., which deals with the Law of the United States. Abandonment-- of copyright, 119 of right in unpublished work, 223 Abridgment-- of non-copyright literary matter constitutes a new book, 21, 25 whether an infringement of copyright, 114, =284= Account of profits: _see_ Remedies, 80, =289= Account-books of original pattern not protected as book, 242 Acquiescence, 87, =292=-- affects costs, 95 as ground of defence, 119 Acting: _see_ Performing Rights Acts of Parliament, copyright in, 59, =241= Adaptations of non-copyright work constitutes a new book, 25, =241= Administrators, copyright passes to, 83, =275= Advertisements, 18, 19, =240= Aeolian, perforated scroll for, 33, 97, =276= Agreements-- publishers', 227 printers', 230 Alien: _see_ International Copyright-- can acquire British copyright, =45= whether book of alien author entitled to British copyright, 42 sculpture of alien artist, 162 painting, drawing, or photograph of alien artist, 170 what works of aliens can acquire copyright in the United States, =247= may sue in United States in respect of unpublished work, =299= America: _see_ United States _Animus furandi_, 100, =277= Anne, Statute of, 4 Annotation, copyright in notes, 26, =241= Anonymous Works-- entitled to copyright, 36 foreign publisher entitled to sue, 200 Application form, 24, =239= Arrangement of old literary matter constitutes a new book, 21, 24, =241= Art: _see_ Paintings, Engravings, Sculpture, Photographs Articles: _see_ Periodical Works Artist: _see_ Author Assignment-- of copyright in books-- before publication no writing required, 75 after publication must be in writing, 77 registration of assignment, 78 assignees right to sue, 79 partial assignment, 80 distinguished from licence, 81 of performing rights, 134-- writing required, 77, 134 do not pass with copyright, 134 entry on register, 135 provincial rights, 135 of copyright in engravings, 154 of copyright in sculpture, 164 of copyright in paintings, drawings, and photographs, 176 of copyright in the United States, =272= Austria-Hungary: _see_ International Copyright Author-- who is, of books, 62, =269= joint authorship, 64, =270= of paintings and drawings, 174 of photographs, 174, =270= right of separate publication in contribution to periodical, 72 whether nationality or residence of author of a book material, 42 reputation of author who has parted with his copyright protected, 213, =297= rights of foreign authors in the United States, =247= Bankruptcy-- copyright passes to trustee, 83, =275= Barometer, no copyright in face of, 14, 32 Belgium: _see_ International Copyright-- signatory of Berne Convention, 194 proclaimed under Chace Act, =249= Bequest, copyright passes by, 83, =275= Berne Convention: _see_ International Copyright Bible, =59= Bills of sale, lists of, 21 Binding, passing off by similar, =298= Blackstone's Commentaries, new edition of, 26 Blasphemous Works: _see_ Profane Works Blind-- books for, entitled to copyright, 11 may be imported into United States, =295= Book-- what is protected in a book, 10, =236=-- what physical form required, 11, =242= what literary matter required, 13, =237-239= what originality required, 15, =237=, =243= examples of what are books, 16-- abridgments, 25 adaptations, 25, =241= advertisements, 18, 19, =240= application form, 24, =237=, =239= catalogues, 18, =238= Christmas card, 35 collection of cookery recipes, 24 conveyancing precedents, 23 cricket-scoring card, 31 dictionaries, 25, =239= directories, 16, 17, =239= face of barometer, 32 forms, 23, 24, =237= "Guide to Science," 24 illustrations, 34 index, 27 lists from public documents, 21 list of foxhounds, 21 maps, 36 mechanical devices, 31 music, 36 new editions, 26, =242= notes to non-copyright works, 26, =241= railway ticket, 32 reports, 28, =240= road-books, 16 scroll for mechanical instrument, 33 selections of non-copyright matter, 24, 25, =241= sleeve chart, 32 sporting tips, 33 statistics, 20, =237=, =239= tables of calculation, 23 telegraph codes, 20 time-tables, 22 topographical dictionary, 24 translations, 25 Booksellers, claim of perpetual copyright, 5 Border Minstrelsy--Lockhart's Notes, 26 British Museum-- delivery of copies to, 55 whether deposit of copy is publication, 39 Calculations, tables of, 23 Campbell's Poems, 112 Canada, copyright in, 188 Catalogues, 18, 19, =238= Causing to be printed, 85 Causing to be represented, 139 Causing or procuring infringement of copyright in fine arts, 178 Certificate of registration, 53 Chart: _see_ Map Chatterbox, =297= Chili proclaimed under Chace Act, =249= Codes, telegraph, 20 Colonial copyright, 186-- books, 186-- foreign reprints Act, 186 Canada, 188-- importation of foreign reprints into, prohibited, 188 licence in Canada protected, 188 Imperial Copyright Acts have full force in Canada, 189 artistic works, 191-- not protected in colonies by imperial legislation, 192 Common Law Rights-- question of perpetual copyright, 5 copyright limited to statutory rights, 206 common law rights in published work, 206, =296=-- passing off by similar title, 206 title must be known to public, 208 non-user of title, 208 no fraud need be proved, 209 must be calculated to deceive, 209 cases where injunctions granted, 209 cases where injunctions refused, 211 malicious criticism, 213 slander of title, 213 reputation of author who has parted with copyright protected, 213 right of employees to use materials acquired in their master's service, 215 third party restrained who obtains material by procuring a breach of faith or contract, 218 unpublished works, 220, =298=-- right of property in, 220 limited communication, 221 whether protected if immoral, 223 speeches and sermons, 223 letters, 225 Company of Stationers, origin of, 3 Composition-- what is, 15, 24 essential element of a book, 14 Cookery recipes, 24 Co-owners: _see_ Joint Owners Corporation may be _ab initio_ proprietor of copyright, =272= Costs of action-- books, 46, 95 performing rights, 144 engravings, 156 sculpture, 164 Crown-- ancient royal prerogative, 3 present claims of, 59 Criticism, extracts for purpose of, 111 Customs, seizure by, 91 "Daisy Bell," 125 Damages: _see_ Remedies, 80, =290= Death-- devolution of copyright on, 83 publishing agreement terminated by, 227 Delay, 87, =292=-- affects costs, 95 ground of defence, 119 Delivery up of copies, 89-- books, 89-- demand in writing, 89 piratical copies made before plaintiff's registration, 89 when piratical copy not merely reprint, 90 delivery up for cancellation, 90 engravings, 155 paintings, drawings, and photographs, 178 in the United States, =290= Denmark, proclaimed under Chace Act, =249= Dictionary, 25, =239= Digest infringing headnotes in reports, 111 Directories-- copyright in, 16, 17, =239= infringement of, 106, 108 Discovery, 94 Dramatic piece: _see_ Performing Rights Dramatization-- whether infringement of novel, 114 of non-copyright work constitutes a new book, 25 Drawings: _see_ Paintings, Drawings, and Photographs Drummond's "Evolution of Man," =297= Drunken scrawl, no copyright in, 14 Duration of Copyright-- books, 56 new editions, 26, 57 Duration of Copyright _(continued_)-- performing rights, 126 engravings, 152 sculpture, 163 paintings, drawings, and photographs, 174 Crown, 59 universities, 61 foreign works, 200 United States, =267= Editions: _see_ New Editions Employer, rights of-- books-- joint employers, 71 under section 18, 66 apart from section 18, 73 right to prevent employees using material acquired in master's service, 215 engravings, 153 sculpture, 164 paintings, drawings, and photographs, 175 United States, =271= Encyclopædias, 57, 110 "Encyclopædia Britannica," =298= Engravings-- copyright in, 146, =236=, =245= what is an original engraving, 146 map, chart, or plan, whether protected under Engravings Acts, 148 engravings in a book, 149 must engraving be made within British dominions, 150 engraving must be first published within British dominions, 150 date of first publication and proprietor's name must be engraved on, 151 immoral works, 152 duration of protection, 152 owner of copyright in engraving, 152-- the engraver, 152 the employer, 153 the assignee, 154 infringement of copyright, 155 prohibited acts and remedies, 155 summary proceedings, 156 guilty knowledge, 156 limitation of action, 156 costs, 156 copying for private use, 156 what is a piratical copy, 156-- taking part, 157 photograph of, 157 how far design protected, 157 striking from lawful plate no infringement, 159 licence a defence, 159 Executors, copyright passes to, 83, 275 Extracts-- taking of, 108 for purpose of criticism, 111 selection of may be a copyright work, 24, 25, =241= Evidence, 92 FAIR use of copyright works, 103, 281 False entries on register, 54 False name on picture, 180 Fine arts: _see_ Paintings, &c. Foreign reprints-- prohibition against importation, 84, 91 Colonial Act, 186 Foreign works: _see_ International Copyright Forfeiture of copies: _see_ Delivery up of copies Forms, 23, 24, =237= Foxhounds, list of packs and hunting days, 21 _Fram_ Expedition, =296= France: _see_ International Copyright-- signatory of Berne Convention, 194 proclaimed under Chace Act, =249= Fraud: _see_ Passing off-- whether fraudulent book entitled to copyright, 46 GARFIELD, biography of, =278= Germany: _see_ International Copyright-- signatory of Berne Convention, 194 proclaimed under Chace Act, =249= "Golden Treasury," 25 "Guide to Science," 24 HAITI: _see_ International Copyright-- signatory of Berne Convention, 194 Hale, pleas of the Crown, 115 IGNORANCE no excuse for infringement of-- common law rights, 223 books, 85, 102 performing rights, 142, 143 engravings, 156 sculpture, 165 paintings, drawings, and photographs, 179 Illustrations-- copyright in when published with book,14 no literary copyright when published separately, 14 may be protected under Engravings Acts, 149 Immoral works, 46, 152, 163, 174, 223, 231, =266= Importation, 84, _287, 294_-- seizure by Customs, 84, 91 Importation (_continued_)-- penalty on importing or selling foreign copies, 84, 91 prohibition of books printed outside U. S. A., =294= Indecent works, 46, 152, 163, 174 Infringement of copyright: _see_ Remedies Books-- what is a piratical copy, 96, 97, =276=-- substantial part, 97, =279= _animus furandi_, 100, =277= not necessarily for profit, 101 copy for private use, 102, =277= may be indirect and unintentional, 102, =277= custom of trade, 102 fair use, 103, =281= no monopoly, 103, =178= facts may be taken, 104 schemes and ideas may be taken, 104, =282= author must do his own work, 105 no excuse that he could easily have obtained same result, 109, =282= work with different object, 109, =283= extract for purpose of criticism, 111, =284= improvement and addition no excuse, 112, _283_ dramatization of novel, 114 abridgments, 114, _284_ translations, 116, _286_ dramatic and musical performing rights: _see_ Performing Rights engravings, 155, =276= sculpture, 164 paintings, drawings, and photographs, 177, 181, =276= Injunction: _see_ Remedies-- interlocutory, 87, =291= final, 87, =291= terms of, 88 probability of damage must be shown, 88 future number of periodical, 88 when difficult to enforce, 89 International Copyright, 193-- copyright in foreign states, 193 copyright in works first produced in foreign states, 193 signatories of the Berne Convention, 194 what foreign works are entitled to protection, 195 when a work is deemed to be first produced, 195 work must be entitled to protection both in this country and in the country of origin, 196 unpublished works, 196 posthumous works, 197 authorised translations, 197 choregraphic works, 197 works produced in foreign countries before December 6, 1889, 197 formalities required in case of foreign works, 198 who are entitled to sue in respect of foreign works, 200 evidence of title to copyright in foreign work, 200 protection afforded to foreign works, 200 importation of copies printed in country of origin, 201 courts will not inquire into foreign remedies, 201 works published before December 6, 1887, 202 translating right, 203 articles in newspapers and periodicals, 204 photographic works, 204 performing rights, 204 extract and quotation, 205 adaptation and arrangement, 205 Interrogatories, 94 Intestacy, copyright passes on, 83, =275= Italy: _see_ International Copyright-- signatory of Berne Convention, 194 proclaimed under Chace Act, =249= JAPAN: _see_ International Copyright-- signatory of Berne Convention, 194 Johnson's "Prince of Abyssinia," 115 Joint owners, =270=-- authors, 57, 64 assignees, 79 Jurist Reports, 28 Jury, trial before, 94 LABELS, not protected, 168, =242, 246= Law Reports-- copyright in, 28, =240= copyright formerly claimed by Crown, 59 Lectures, copyright in, 57-- common law rights in, 222 Letters, copyright in, 14, =243=-- common law rights in, 225 literary property in writer, 225 rights of receiver, 225 may be published to vindicate character, 226 Letter-file not protected as a book, =242= Libel-- libellous works not protected, 46, 152, 163, 174 agreement to indemnify against action for, 229 Libraries: _see_ British Museum-- delivery of copies to, 55 Library of Congress-- provisions as to copyright records, =264= works may be imported for use of, =295= Licence-- whether licensee can sue, 82, 177, =274= distinguished from assignment, 81 not to be presumed a sole licence, 82 whether licensor can sue without licence, 82 licence must be in writing, 83, 118, 159, 166 as a defence to infringement, 118, 159, 166, 184 Licensing statute, 4 Licensing Canadian Fisher Act, 188 Limitation of Action-- books, 91 engravings, 156 sculpture, 165 paintings, drawings, and photographs, 181 in the United States, =292= Literary Property: _see_ Book, Author, Assignment, Infringement, Duration of Copyright, International Copyright, Lectures, Letters, Owner of Copyright, Performing Rights, Periodical Works, Registration, Remedies, Common Law Rights, United States Literary matter required in book, 13 Literary merit: _see_ Merit Living pictures, 182 Long Parliament, 4 Luxembourg: _see_ International Copyright-- signatory of Berne Convention, 194 MALICIOUS criticism, 213 Manuscript: _see_ Unpublished Work-- ownership of and right to publish, 74 book in manuscript would probably be protected, 12, 38 Map, copyright in, 14, 236-- whether protected under Engraving Acts, 148 Mark Twain, 297 Master and servant-- master entitled to prevent servant using material acquired in his employment, 215 master's right to work of servant, 73 Mathematical calculations, 23 Mechanical instruments, no copyright in, 14, =242=-- not infringements of copyright, 97, =276= Meeson and Welsby's Reports, 28 Merit, no literary merit required for book to obtain protection, 13, 16-- secus in the United States, =237= Mexico proclaimed under Chace Act, =249= Millais-- "The Huguenot," 157 "Ordered on Foreign Service," 173 "My First Sermon," 173 Monaco: _see_ International Copyright-- signatory of Berne Convention, 194 Music: _see_ Performing Rights-- copyright in, 36, 231 opera score infringed by dance music, 113 adaptations of music entitled to copyright, 130, =241= Mutilation, author may prevent, 213, =297= NAME-- assignee of copyright may publish under author's name, =297= Napoleon III. Cartoons in _Punch_, 110 New editions-- new material in, is protected, 26, =242= slight corrections and verbal alterations, 27 registration of, 51 duration of copyright in, 57 passing off non-copyright edition for copyright one, =298= Newspaper: _see_ Periodical-- protected as a book, 11 must be registered, 48 Norway: _see_ International Copyright-- signatory of Berne Convention, 194 Notes to non-copyright work protected, 26, =241= Notice of objections, 92 Notice reserving performing rights in music, 131 Notice of copyright in United States, =255= Novelty, not necessary in book, 15, 16 ORIGINALITY, what is an essential element of book, 15 Owner of copyright, who is-- certificate of registration _primâ facie_ proof of ownership, 53 Books-- the Crown, 59 the universities, 61 the author, 62, 269 the employer, 66, =271= the assignee, 74, =272= the licensee, 82 engravings, 152 sculpture, 164 paintings, drawings, and photographs, 174 in the United States, =269= PAINTINGS, drawings, and photographs-- copyright in, 167, =236=, =246= what is an original work of art, 167 what artistic element required, 168 first publication if outside British dominion, destroys copyright, 168 what is publication of work of art, 169 artist must be British or resident within British dominions, 170 registration, 171-- what must be registered, 171 must be before infringement, 171 assignee must be registered, 172 short description of nature and subject of work required, 173 immoral works, 174 duration of protection, 174 sale without reserving copyright, 174 owner of the copyright, 174-- the author, 174 the employer, 175 the assignee, 176 partial assignment, 176 whether licensee can sue, 176 infringement, 177-- prohibited acts and remedies, 177 causing or procuring infringement, 187 innocent agent, 179 unlawful copy, 179 separate offence, 179 no minimum penalty, 180 copying for private use, 180 on breach of contract, 180 affixing false name or initials, 180 fraudulently representing false authorship, 180 limitation of action, 181 photograph of picture sufficient evidence of, 181 what is piratical copy, 181-- no monopoly of subject-matter, 181 general idea may be taken, 182 material part, 183 indirect taking, 184 guilty knowledge, 184 replicas, 184 licence a defence, 184 "Paradise Lost," with notes, 26 Parliamentary papers, 60 Part of a book entitled to copyright, 12 Particulars, 94 Partners-- firm name of publishers may be entered in register, 52 Passing off: _see_ Common Law Rights-- by similar title, 204, =296= by similar binding, =298= of non-copyright edition for a copyright one, =298= Patents, specification of, 21 Pattern sleeve, no copyright in, 14, 32, =242= Payment-- of author essential under section 18, 71 Penalties: _see_ Remedies Performance, no infringement of copyright, 120 Performing rights-- nature of, 120 performing right at common law, 121 history of protection of performing rights, 122 what is a dramatic work, 123 what dramatic works are protected, 126 duration of performing rights, 126 if first published or performed outside the British dominions, 128 what is a musical composition, 130 what musical works are protected, 130 notice reserving musical performing rights, 131 registration of performing rights, 131 assignment of performing rights: _see_ Assignment Infringement of dramatic performing rights, 135, =286= Infringement of musical performing rights, 142, =287= remedies for infringement of performing rights, 144 Periodical works-- proprietor's copyright in, 66 author's separate rights to contributions, 72 duration of protection, 57 first number only need be registered, 51 articles may be copied from foreign periodicals, 204 Perpetual copyright-- question of, 5 in the universities, 61 Persons liable for infringement of copyright-- books, 85 performing rights, 139, 142, 143 engravings, 156 sculpture, 165 paintings, drawings, and photographs, 178 United States copyright, =291= Photographs: _see_ Paintings, Drawings, and Photographs-- who is author of, 174 who is owner of copyright in portrait, 175 foreign photographs, 204 protection in the United States, =236=, =245= Pianola, perforated scroll for: _see_ Mechanical Instruments Piracy: _see_ Infringement-- whether piratical book entitled to copyright, 46 Playwright: _see_ Performing Rights Pleading, 92, =293= Portugal proclaimed under Chace Act, =249= Posthumous works, 57, 197 Prayer Book, 59 Preamble of Literary Copyright Act, 14 Precedents, 23 Printers' agreements, 230 lien for printing charges, 230 omission to print name and address on book, 230 no payment before completion of order, 230 printer does not insure manuscript, 230 universal works, 231 Prints: _see_ Engravings Profane works not protected, 46, 152, 163, 174 Proprietor of collective work: _see_ Periodical Works Public Authorities Protection Act, 92, 144 Public documents-- selection from, constitutes a copyright work, 21 no copyright in mere transcript of, 21 Publication-- Books-- divests the common law right, 36 divestitive publication, 37 performance of music or drama, 37 delivery of lectures, 37 book privately distributed, 37 book issued to subscribers, 37 music hall programme, 38 public exhibition of book, 38 invests the statutory copyright, 38 investitive publication, 38 whether book must be printed, 38 whether distribution of copies necessary, 39 deposit of copy in British Museum, 39 proof of publication, 39 book must be first published within British dominions, 40 may be written anywhere, 41 whether it must be printed within British dominions, 40 previous performance abroad of dramatic or musical work, 41 notice of objection as to, 92 engravings, 150 sculpture, 162 paintings, drawings, and photographs, 169 time of first publication must be registered to the day, 51 United States, =260= name must be entered on register, 49 liable for non-delivery to libraries, 55 Publishers' agreements, 227-- not assignable unless so expressed, 227 terminated by death, 227 specific performance, 227 agreement not to publish elsewhere, 228 agreements not to write or publish similar works, 228 price and embellishments, 229 copyright, owner of, should be stated, 229 libel, agreement to indemnify against action for, 229 writing, when required, 230 stamp, when required, 230 Purpose for which literary matter composed immaterial, 12 QUOTATIONS: _see_ Extracts RECTIFICATION of register, 54 Registration: _see_ Paintings, Drawings, and Photographs-- of books-- must be entered before action, 46 not necessary in action on performing right, 47 need not be before infringement, 47 cannot be effected before publication, 47 newspaper must be registered, 48 failure to register under Newspaper Libel Act does not affect copyright, 48 requisite entry, 49 fee for registration, 49 inspection of register, 49 actual title must be registered, 49 whether copyright must be distinguished from non-copyright matter, 50 immaterial that some copies are published under different title from title registered, 50 time of first publication must be entered to the day, 51 periodical, date of first number only, 51 action against proprietor for publishing separately requires no registration, 52 first publisher must be entered, 52 place of abode, 52, 53 proprietor at time of registration must be entered, 52 plaintiff must appear on the register, 53 registration of mesne assignments, 53 neglect of officials at Stationers' Hall, 53 superfluous matter on register immaterial, 53 certificate of registration, 53 registration _primâ facie_ proof, 53 false entries, 54 rectification of register, 54 notice of objection as to, 92 Remedies-- for infringement of books, 84, =287=-- damages, 86, =290= account of profits, 86, =289= injunction, 86, =291= delivery up of copies, =89=, =290= seizure under Customs Act, 91 importing or selling foreign copies, 81, 91 limitation of action, 91, =292= pleading, 92, =293= for infringement of performing rights, 144, =289=-- of engravings, 155, =288= of sculpture, 164, =288= of paintings, drawings, and photographs, 177, =288= Reports: copyright in-- law reports, 28, =240= head notes, 28, 111 verbatim reports of speeches, 29 verbatim reports of judgments, 31 reports laid before Parliament, 60 Reputation, author may protect his, 213, =297= Road-books, 16 Rosebery, Lord; reports of speeches in _Times_, 29 SCULPTURE-- copyright in, 161, =236= what is an original sculpture, 161 must be first published within British dominions, 162 what is publication of, 162 whether author must be British, 162 proprietor's name and date on each copy, 162 immoral works, 163 duration of protection, 163 owner of copyright, 164-- artist, 164 employer, 164 assignee, 164 infringement of copyright, 164 prohibited acts and remedies, 164 guilty knowledge, 165 limitation of action, 165 copying for private use, 165 what is a piratical copy, 165 copying design in other form of art, 165 licence a defence, 166 Seditious works not entitled to protection, 46, 152, 163, 174 Selections: _see_ Extracts Separately published, meaning of, 12 Sermons: _see_ Speeches Sheet of letterpress protected as a book, 11, =242= Ship on fire, 123 Shorthand-- copyright in reports, 29 shorthand copy is infringement of book, 110 book in shorthand would be protected, 11 Slander of title, 213 Sleeve pattern, not a book, 14 Smith's "Leading Cases," 28, 111 Spain: _see_ International Copyright-- signatory of Berne Convention, 194 proclaimed under Chase Act, =249= Speeches-- speakers' rights in, 223 copyright in shorthand report of, 30 Stamp-- what stamp required on copyright agreements, 230 Star chamber, 4 Stationers' Hall: _see_ Registration-- origin of company, 3 neglect of officials at Stationers' Hall, 53 Statistics, 20, =237= Statue: _see_ Sculpture Statutes: _see_ Acts of Parliament Suppression of books, provision against, 119 Switzerland: _see_ International Copyright-- signatory of Berne Convention, 194 proclaimed under Chace Act, =249= Term Reports, 28 Thackeray, extracts from, 112 Time-tables, copyright in, 22 _Times_, reports of Lord Rosebery's speeches, 29 Title: _see_ Common Law Rights; Passing off-- passing off by similar title, 206, =296= no copyright in title, 208, =244= slander of title, 213 actual title must be registered, 49 Topographical Dictionary, 24 Translations-- give no exclusive right to translate a non-copyright work, 25 whether an infringement of copyright, 116 translating rights in foreign works, 203 Trial, mode of, 94 Tunis: _see_ International Copyright-- signatory of Berne Convention, =194= UNITED STATES-- copyright in, =233= what works protected in, =236= rights of foreign authors, =247= formalities which must be observed in, =250=-- delivery of title or description, =250, 251, 253= delivery of copies or photograph, =250, 253= books, chromos, lithographs, and photographs must be printed in United States, =254= notice of copyright must be printed on each copy, =255= publication, =260= Library of Congress, =264= immoral works, =266= duration of copyright in, =267= owner of copyright in-- author, =269= employer, =271= state, =272= assignee, =272= infringement of copyright-- what is a piratical copy, =276= prohibited acts and remedies, =287= Universities, copyright of, 61 Unpublished work: _see_ Common Law Rights WEBSTER'S Dictionary, =297= Will, copyright passes by, 83, =275= Word, no copyright in single, 14, 34 Printed by BALLANTYNE, HANSON & CO. Edinburgh & London FOOTNOTES: [1] "The Law and History of Copyright in Books," by Augustine Birrell, 1899. [2] 13 and 14 Car. 2, c. 33. [3] _Eyre_ v. _Walker_ (1735), 4 Burr., 2325; _Motte_ v. _Falkner_ (1735), 4 Burr., 2326; _Walthoe_ v. _Walker_ (1736), 4 Burr., 2326; _Tonson_ v. _Walker_ (1752), 4 Burr., 2326. [4] (1760), 1 W. Black, 301. [5] _Osborne_ v. _Donaldson_ (1765), 2 Eden, Ch. Cas., 327. [6] (1769), 4 Burr., 2303. [7] (1774), 2 Bro. P. C., 129. [8] (1769). 4 Burr., 2303. [9] 5 & 6 Vict. c. 45, secs. 15, 2. [10] _Infra_, Section I. [11] _Infra_, Section II., p. 36. Foreign works first published in certain foreign countries are protected subject to the conditions of the International Copyright Acts, and are dealt with in a separate chapter. Chapter X., p. 193. [12] This requisite for protection is extremely doubtful. Probably there is no restriction as to nationality of the author. See _infra_, Section III., p. 42. [13] _Infra_, Section IV., p. 46. [14] _Infra_, Section V., p. 46. [15] _Infra_, Section VII., p. 56. [16] _Clementi_ v. _Golding_ (1809), 2 Camp., 25; _Storace_ v. _Longman_ (1788), 2 Camp., 26 _n._; _Hime_ v. _Dale_ (1803), 2 Camp., 27 _n._; _White_ v. _Geroch_ (1819), 2 B. and Ald., 298. [17] _Southern_ v. _Bailes_ (1894), 38 Sol. J., 681. [18] _Cox_ v. _Land and Water_ (1869), L. R. 9 Eq. 324. [19] _Walter_ v. _Howe_ (1881), 17 Ch. D., 708; and see _Platt_ v. _Walter_ (1867), 17 L. T., 157. [20] _Trade Auxiliary_ v. _Middlesborough_ (1889), 40 Ch. D., 425; _Cate_ v. _Devon_ (1889), 40 Ch. D., 500. [21] _Boosey_ v. _Whight_ [1900], 1 Ch., 122. [22] _Nicols_ v. _Pitman_ (1884), 26 Ch. D., 374. Both this case and _Boosey_ v. _Whight_ are cases of infringement, but they would seem equally to apply to a question whether a certain scroll or document would be a "book" entitled to copyright under the Acts. [23] See Stirling, J., in _Boosey_ v. _Whight_ [1899], 1 Ch., at p. 842. [24] See Stirling, J., in _Boosey_ v. _Whight_ [1899], 1 Ch., at p. 842. [25] _White_ v. _Geroch_ (1819), 2 B. and Ald., 298. See p. 38. [26] (1801), 1 East., 358; and see _White_ v. _Geroch_ (1819), 2 B. and Ald., 298; _Tonson_ v. _Walker_ (1752), 3 Swanst., 672. [27] _Black_ v. _Murray_ (1870), 9 M., 341; _Sweet_ v. _Benning_ (1855), 16 C. B., 459. [28] _Bogue_ v. _Houlston_ (1852), 5 De Gex and Smale, 267. [29] _Low_ v. _Ward_ (1868), L. R., 6 Eq., 415. [30] _Leslie_ v. _Young_ [1894], A. C., 335. [31] Lindley, L. J., in _Lamb_ v. _Evans_ [1893], 1 Ch., at p. 223. [32] [1894], 3 Ch., 663. [33] [1900], A. C., 539. [34] [1900], A. C., p. 548. [35] (1882), 21 Ch. D., 369. [36] 21 Ch. D., at p. 378. [37] _Infra_, p. 16. [38] _Infra_, p. 16. [39] _Infra_, p. 18. [40] _Infra_, p. 20. [41] _Infra_, p. 20. [42] _Infra_, p. 22. [43] _Infra_, p. 29. [44] _Infra_, p. 225. [45] _Infra_, p. 19. [46] _Kenrick_ v. _Danube Collieries_ (1891), 39 W. R., 473. [47] _Hollinrake_ v. _Truswell_ [1894], 3 Ch., 420. [48] _Chilton_ v. _Progress_ [1895], 2 Ch., 29; _Maxwell_ v. _Hogg_ (1867), L. R., 2 Ch., at p. 318. [49] _Hollinrake_ v. _Truswell_ [1894], 3 Ch., 420. [50] _Davis_ v. _Comitti_ (1885), 52 L. T. (N. S.), 539. [51] _Fourmat_ v. _Pearson_ (1897), 14 T. L. R., 82. [52] _Infra_, p. 34. [53] _Maple_ v. _Junior Army and Navy Stores_ (1882), 21 Ch. D., 369. [54] _Stannard_ v. _Lee_ (1871), L. R., 6 Ch., 346; see _infra_, p. 148. [55] _Walter_ v. _Lane_ [1900], A. C., 539. [56] Ibid. [57] Ibid. [58] _Wyatt_ v. _Barnard_ (1814), 3 V. and B., 77. [59] _Baily_ v. _Taylor_ (1829), 1 Tamlyn, at p. 299 _n._ [60] _Matthewson_ v. _Stockdale_ (1806), 12 Ves., 270. [61] _Walter_ v. _Lane_ [1900], A. C., 539. [62] _Walter_ v. _Lane_ [1900], A. C., 539. See Brougham, L., in _Jefferys_ v. _Boosey_ (1854), 4 H. L. C., at p. 965. [63] _Infra_, p. 26. [64] _Infra_, p. 25. [65] _Infra_, p. 25. [66] _Infra_, p. 24. [67] _Infra_, p. 23. [68] _Taylor_ v. _Bayne_ (1776), Mor. Dic., 8308; _Carnan_ v. _Bowles_ (1786), 2 Bro. C. C., 80; _Cary_ v. _Faden_ (1799), 5 Ves., 24; _Cary_ v. _Longman_ (1801), 1 East., 358; _Cary_ v. _Kearsley_ (1802), 4 Esp., 168. [69] _Carnan_ v. _Bowles_ (1786), 2 Bro. C. C., 80; 1 Cox. Ch. Cas., 283. [70] _Taylor_ v. _Bayne_ (1776), Mor. Dic., 8308. [71] _Kelly_ v. _Morris_ (1866), L. R., 1 Eq., 697; Page Wood, V. C., at p. 701. [72] _Matthewson_ v. _Stockdale_ (1806), 12 Ves., 270; _Longman_ v. _Winchester_ (1809), 16 Ves., 269; _Kelly_ v. _Morris_ (1866), L. R., 1 Eq., 697; _Morris_ v. _Ashbee_ (1868), L. R., 7 Eq., 34; _Morris_ v. _Wright_ (1870), L. R., 5 Ch., 279; _Kelly's Directories_ v. _Gavin & Lloyds_ [1901], 1 Ch., 374; _Garland_ v. _Gemmill_ (1887), 14 S. C. R. (Canada), 321. [73] _Matthewson_ v. _Stockdale_ (1806), 12 Ves. 270. [74] _Longman_ v. _Winchester_ (1809), 16 Ves., 269. [75] _Cornish_ v. _Upton_ (1861), 4 L. T. (N. S.), 862. [76] _Kelly_ v. _Morris_ (1866), L. R., 1 Eq., 697. [77] _Morris_ v. _Ashbee_ (1868), L. R., 7 Eq., 34. [78] [1893], 1 Ch., 218. [79] Bowen, L. J. [1893], 1 Ch., at p. 227. [80] Lindley, L. J. [1893], 1 Ch., at p. 222; and see _Morris_ v. _Ashbee_ (1868), L. R., 7 Eq., 34. [81] (1863), H. and M., 603. [82] (1872), L. R., 14 Eq., 407. [83] L. R., 14 Eq., at p. 414. [84] (1875), L. R., 19 Eq., 623. [85] (1872), L. R., 14 Eq., 407. [86] (1863), 1 H. and M., 603. [87] (1872), L. R., 14 Eq., 407. [88] (1882), 21 Ch. D., 369. [89] (1872), L. R., 14 Eq., 407. [90] Ibid. [91] 21 Ch. D., at p. 379; and see _Church_ v. _Linton_ (1894), 25 Ont. Rep., 131. [92] (1898), 78 L. T. (N. S.), 613. [93] (1863), 1 H. and M., 603. [94] (1884), 26 Ch. D., 637. [95] (1886), 2 T. L. R., 291. [96] _Walford_ v. _Johnston_, 20 D., 1160. [97] _Maclean_ v. _Moody_, 20 D., 1154; and see _Kelly's Directories_ v. _Gavin & Lloyds_ [1901], 1 Ch., 374. [98] _Scott_ v. _Stanford_ (1867), L. R., 3 Eq., 718. [99] L. R., 3 Eq., at p. 723. [100] _Wyatt_ v. _Barnard_ (1814), 3 V. and B., 77; _Trade Auxiliary Co._ v. _Middlesborough_ (1889), 40 Ch. D., 425. [101] (1889), 40 Ch. D., 425; and see _Hall_ v. _Whittington_ (1892), 15 Vic. L. R., 525. [102] (1889), 40 Ch. D., 500. [103] (1814), 3 V. and B., 77. [104] (1869), L. R., 9 Eq., 324. [105] [1894], A. C., 335. [106] (1829) 1 R. and M., 73; see also _King_ v. _Reed_ (1804), 8 Ves., 223. [107] (1847), 11 Jur., 344. [108] (1732), cited 2 Bro. P. C. 138; and Ambl., 694. [109] (1847), 9 D., 748. [110] _Southern_ v. _Bailes_ (1894), 38 Sol. J., 681; see _Church_ v. _Linton_ (1894), 25 Ont. Rep., 131. [111] See _Longman_ v. _Winchester_ (1809), 16 Ves., at p. 271. [112] (1821), Jac., 311; and see _Marzials_ v. _Gibbons_ (1874), L. R., 9 Ch., 518. [113] (1839), 2 Beav., 6. [114] (1843), 5 D., 416. [115] (1857), 3 K. and J., 708. [116] (1858), 31 L. T. (O. S.), 18; 6 W. R., 352. [117] _Macmillan_ v. _Suresh Chunder Deb_ (1890), Ind. L. R., 17 Calc., 951; see _Moffat and Paige_ v. _Gill_ [1902], C. A., April 25. [118] _Gyles_ v. _Wilcox_ (1740), 2 Alk., 142. [119] _Wyatt_ v. _Barnard_ (1814), 3 V. and B., 77; _Chatterton_ v. _Cave_ (1875), 10 C. P., 572; (1878), 3 A. C., 483. [120] _Tree_ v. _Bowkett_ (1896), 74 L. T., 77; _Hatton_ v. _Kean_ (1859), 7 C. B. (N. S.), 268; _Chatterton_ v. _Cave_ (1875), L. R., 10 C. P., 572; (1878), 3 A. C., 483. [121] _Wood_ v. _Boosey_ (1867), 7 B. and S., 869; _Boosey_ v. _Fairlie_ (1877), 7 Ch. D., 301; (1868), 9 B. and S., 175. [122] _Lover_ v. _Davidson_ (1856), 1 C. B. (N. S.), 182; _Leader_ v. _Purday_ (1849), 7 C. B., 4. [123] _Tonson_ v. _Walker_ (1753), 3 Swanst., 672. [124] (1801), 1 East., 358; and see _Mason_ v. _Murray_ cited, 1 East, 360 (Gray's Poems). [125] (1852), 1 Drew, 353. [126] 1 Drew, at p. 365. [127] (1787), Mor. Dic., 8310. [128] (1870), 9 M., 341; and see _Maple_ v. _Junior Army and Navy Stores_ (1882), 21 Ch. D., 369, at p. 373; _Hayward_ v. _Lely_ (1887), 56 L. T. (N. S.), 418; _Moffat & Paige_ v. _Gill_ [1902], C. A., April 25. [129] _Thomas_ v. _Turner_ (1886), 33 Ch. D., 292. [130] (1841), 3 D., 383. [131] 3 D., at p. 387. [132] _Carnan_ v. _Bowles_ (1786), 2 Bro. C. C., 80, per L. C., at p. 83. [133] (1870), 9 M., at p. 352. [134] (1801), 5 Ves., 709. [135] (1839), 3 Jur., 217. [136] (1840), 11 Sim., 51. [137] (1838), 3 My. and Cr., 711. [138] (1855), 16 C. B., 459; see _Hodges_ v. _Welsh_ (1840), 2 Ir. Eq. R., 266. [139] 16 C. B., Crowder, J., at p. 491. [140] See _infra_, p. 240. [141] [1900], A. C., 539. [142] Ibid. [143] [1900], A. C., at p. 545. [144] [1900], A. C., 539. [145] See p. 15. [146] See pp. 37, 223. [147] 5 & 6 Will. IV. c. 65. [148] [1900], A. C., 539. [149] Ibid. [150] See _infra_, p. 240. [151] (1869), 20 L. T. (N. S.), 435. [152] Such an article as this, a mere scheme or plan for arranging material, would not be protected under the law of patents; _in re Cooper_ (1902), 19 Pat. Des. and Trade Mark Cases, 53; _in re Johnson_ (1902), 19 Pat. Des. and Trade Mark Cases, 56. [153] (1882), 47 L. T. (N. S.), 432. [154] (1885), 52 L. T. (N. S.), 539. [155] [1894], 3 Ch., 420; see American Law, p. 242, _infra_, where a similar article was protected. It has also been protected in Victoria, _Hanbury_ v. _Dumsday_ (1884), 10 Vic. L. R., Eq., 272. [156] Lord Herschell, L. C. [1894], 3 Ch., 420, at p. 424. [157] _Griffin_ v. _Kingston_ (1889), 17 Ont. Rep., 660; see _Church_ v. _Linton_ (1894), 25 Ont. Rep., 131, where some of the dicta in the above case were disapproved. [158] [1900], 1 Ch., 122. [159] _Chilton_ v. _Progress Printing and Publishing Co._ [1895], 2 Ch., 29. [160] Lindley, L. J. [1895], 2 Ch., at p. 34. [161] (1852), 5 De Gex and Smale, 267; see _Roworth_ v. _Wilkes_ (1807), 1 Camp., 94; _Newton_ v. _Cowie_ (1827), 4 Bing., 234. [162] See 21 Ch. D., 380. [163] Parker, V. C., 5 De Gex and Smale, at p. 274. [164] (1882), 21 Ch. D., 369; and see _Cooper_ v. _Stephens_ [1895], 1 Ch., 567; _Marshall_ v. _Petty_ (1900), 17 T. L. R., 501. [165] At p. 377 [166] (1981), 64 L. T. (N. S.), 452. [167] (1895), 43 W. R., 266; and see _Guggenheim_ v. _Leng_ (1896), 12 T. L. R., 491. [168] _Strong_ v. _Worskett_ (1896), 12 T. L. R., 532; _Fisher_ v. _Folds_ (1834), 1 Jones, Ir. Ex., 12. [169] (1896), 12 T. L. R., 532. [170] _Beckford_ v. _Hood_ (1798), 7 T. R., 620. [171] _Hollinrake_ v. _Truswell_ [1894], 3 Ch., at p. 427. [172] _Bach_ v. _Longman_ (1777), 2 Camp., 623; _Clementi_ v. _Golding_ (1809), 2 Camp., 25; _White_ v. _Geroch_ (1819), 2 B. and Ald., 298; _D'Almaine_ v. _Boosey_ (1835), 1 Y. and C. Ex., 288; _Jeffreys_ v. _Boosey_ (1854). 4 H. L. C., 815. [173] _Coleman_ v. _Wathen_ (1793), 5 T. R., 245; _Macklin_ v. _Richardson_ (1770), Amb., 694; _D'Almaine_ v. _Boosey_ (1835), 1 Y. and C. Ex., 288. [174] _Caird_ v. _Sime_ (1887), 12 A. C., 326; _Abernethy_ v. _Hutchinson_ (1825), 3 L. J. (O. S.), Ch., 309. See p. 222, _infra_. [175] _Nicols_ v. _Pitman_ (1884), 26 Ch. D., 374. [176] See _Walter_ v. _Lane_ [1900], H. C., 539. [177] _Kenrick_ v. _Danube Collieries_ (1891), 39 W. R., 473; _Prince Albert_ v. _Strange_ (1849), 2 De G. and Sm., 652; _Jefferys_ v. _Boosey_ (1854), 4 H. L. C., 815; _Exchange Telegraph_ v. _Gregory_ [1896], 1 Q. B., 147; _Exchange Telegraph_ v. _Central News_ [1897], 2 Ch., 48; _Millar_ v. _Taylor_ (1769), 4 Burr., at p. 2417; _Turner_ v. _Robinson_ (1860), 10 Ir. Ch. R., 121, 510. [178] _Blanchett_ v. _Ingram_ (1887), 3 T. L. R., 687. [179] (1819), 2 B. and Ald., 298. [180] (1876), 5 Ch. D., 267. [181] _Turner_ v. _Robinson_ (1860), 10 Ir. Ch. R., 121, 510. [182] _Clementi_ v. _Walker_ (1824), 2 Bar and Cres., 861. [183] _Routledge_ v. _Low_ (1868), L. R., 3 H. L., 100; _Jeffreys_ v. _Boosey_ (1854), 4 H. L. C., 815; _Boosey_ v. _Purday_ (1849), 4 Ex., 145; _Chappell_ v. _Purday_ (1845), 14 M. and W., 303; _Cocks_ v. _Purday_ (1848), 5 C. B., 860. [184] 49 & 50 Vict. c. 33, sec. 8 (1). [185] _Cocks_ v. _Purday_ (1848), 5 C. B., 860; _Buxton_ v. _James_ (1851), 5 De G. and S., 80. [186] _Reid_ v. _Maxwell_ (1886), 2 T. L. R., 790. [187] _Lover_ v. _Davidson_ (1856), 1 C. B. (N. S.), 182. [188] _Buxton_ v. _James_ (1851), 5 De. G. and S., 80; as to author's nationality or residence, see p. 42. [189] (1854), 4 H. L. C., at p. 983. [190] (1824), 2 B. and C., 861, at p. 867. [191] 7 & 8 Vict. c. 12, sec. 19. [192] See p. 193. [193] _Boucicault_ v. _Delafield_ (1863), 1 H. and M., 597; _Boucicault_ v. _Chatterton_ (1876), 5 Ch. D., 267. [194] _Boucicault_ v. _Delafield_ (1863), 1 H. and M., 597; _Boucicault_ v. _Chatterton_ (1876), 5 Ch. D., 267; _Ex p. Dobson_ (1892), 12 N. Z. L. R., 171. [195] _Boucicault_ v. _Chatterton_ (1876), 5 Ch. D., 267. [196] (1849), 13 Q. B., 257. [197] _D'Almaine_ v. _Boosey_ (1835), 1 Y. and C. Ex., 288; see Willes, J., in _Millar_ v. _Taylor_ (1769), 4 Burr., at p. 2310; _Delondre_ v. _Shaw_ (1828), 2 Sim., 240. [198] (1839), 10 Sim., 329. [199] _Chappell_ v. _Purday_ (1845), 14 M. and W., 303; _Cocks_ v. _Purday_ (1848), 5 C. B., 860; _Boosey_ v. _Davidson_ (1849), 13 Q. B., 257; _Boosey_ v. _Purday_ (1849), 4 Ex., 145; _Ollendorff_ v. _Black_ (1850), 20 L. T., 165; _Boosey_ v. _Jefferys_ (1851), 6 Ex., 580; _Buxton_ v. _James_ (1851), 5 De G. and Sm., 80. [200] (1854), 4 H. L. C., 815. [201] (1854), 4 H. L. C., 815. [202] (1868), L. R., 3 H. L., 100. [203] (1854), 4 H. L. C., 815. [204] Ibid. [205] The Fine Arts Act, 1862, is expressly confined to the works of authors who are British subjects or resident within the Dominions of the Crown; 25 & 26 Vict. c. 68. [206] (1854), 4 H. L. C., 815. [207] Ibid. [208] (1868), L. R., 3 H. L., 100. [209] (1868), L. R., 6 Eq., 415. [210] (1868), L. R., 3 H. L., 100. [211] (1854), 4 H. L. C., 815. [212] Art. 6, "Report Copyright Commission," 1878, p. lxix. [213] Scrutton on "Copyright," 3rd ed., p. 121. [214] Chamier on "Literary Copyright," p. 13. [215] _Lawrence_ v. _Smith_ (1822), Jac., 471; _Murray_ v. _Benbow_ (1822), Jac., 474 _n._; _Cowan_ v. _Milbourn_ (1867), L. R., 2 Exch., 230; _Burnett_ v. _Chetwood_ (1720), 2 Mer., 441; see 9 Will. III. c. 35 (1698). [216] _Stockdale_ v. _Onwhyn_ (1826), 5 B. and Cr., 173; _Dodson_ v. _Martin_ (1880), 24 Sol. J., 572. [217] _Hime_ v. _Dale_ (1803), 2 Camp., 27 _n._; _Dr. Priestley's case_, cited 2 Mer., 437. [218] _Hime_ v. _Dale_ (1803), 2 Camp., 27 _n._; _Walcot_ v. _Walker_ (1802), 7 Ves., 1. [219] _Wright_ v. _Tallis_ (1845), 1 C. B., 893; _Hogg_ v. _Kirby_ (1803), 8 Ves., 215; _MacFarlane_ v. _Oak Foundry_ (1883), 10 R., 801; _Hayward_ v. _Lely_ (1887), 56 L. T. (N. S.), 418; _Ward_ v. _Beeton_ (1874), L. R., 19 Eq., 207; _Metzler_ v. _Wood_ (1878), 8 Ch. D., 606; _Chappell_ v. _Davidson_ (1856), 2 K. and J., 123. [220] _Wright_ v. _Tallis_ (1845), 1 C. B., 893. [221] _Cary_ v. _Faden_ (1799), 5 Ves., 24; _Reade_ v. _Conquest_ (1862), 11 C. B. (N. S.), at p. 492. [222] _Baschet_ v. _London Illustrated_ [1900], 1 Ch., 73; _Hayward_ v. _Lely_ (1887), 56 L. T. (N. S.), 418. [223] See point suggested, 1 C. B., 902. [224] _Baschet_ v. _London Illustrated_ [1900], 1 Ch., 73; _Newman_ v. _Pinto_ (1887), L. T. (N. S.), 31. [225] _Dodson_ v. _Martin_ (1880), 24 Sol. J., 572. [226] 5 & 6 Vict. c. 45, secs. 11, 13, 24. [227] 5 & 6 Vict. c. 45, sec. 24. [228] _Beckford_ v. _Hood_ (1798), 7 T. R., 620; _Roworth_ v. _Wilkes_ (1807), 1 Camp., 94. [229] _Low_ v. _Routledge_ (1864), L. R., 1 Ch., 42; _Stannard_ v. _Lee_ (1871), L. R., 6 Ch., 346; _Hogg_ v. _Scott_ (1874), L. R., 18 Eq., 444. [230] _Russell_ v. _Smith_ (1848), 12 Q. B., 217; _Lacy_ v. _Rhys_ (1864), 4 B. and S., 873; _Marsh_ v. _Conquest_ (1864), 17 C. B. (N. S.), 418; _Clark_ v. _Bishop_ (1872), 25 L. T., 908. [231] _Goubaud_ v. _Wallace_ (1877), 36 L. T. (N. S.), 704; _Macmillan_ v. _Suresh Chunder Deb_ (1890), Ind. L. R., 17 Calc., 951. [232] _Warne_ v. _Lawrence_ (1886), 34 W. R., 452. [233] (1879), 12 Ch. D., 886. [234] (1880), 49 L. J. Ch., 412. [235] _Henderson_ v. _Maxwell_ (1877). 5 Ch. D., 892; _Dicks_ v. _Yates_ (1881), 18 Ch. D., 76. [236] _Hogg_ v. _Maxwell_ (1866), L. R., 2 Ch., 307; _Correspondent_ v. _Saunders_ (1865), 11 Jur. (N. S.), 540; _Primrose Press_ v. _Knowles_ (1886), 2 T. L. R., 404. [237] _Talbot_ v. _Judges_ (1887), 3 T. L. R., 398; _Schove_ v. _Schmincké_ (1886), 33 Ch. D., 546. [238] (1889), 40 Ch. D., 425. [239] _Walter_ v. _Howe_ (1881), 18 Ch. D., 708; _Trade Auxiliary_ v. _Middlesborough_ (1889), 40 Ch. D., 425; _Cate_ v. _Devon_ (1889), 40 Ch. D., 500. [240] _Cox_ v. _Land and Water_ (1869), L. R., 9 Eq., 324. [241] _Trade Auxiliary_ v. _Middlesborough_ (1889), 40 Ch. D., 425. [242] (1889), 40 Ch. D., 500; see also _Prowett_ v. _Mortimer_ (1856), 2 Jur. (N. S.), 414. [243] _Chappell_ v. _Davidson_ (1856), 18 C. B., 194. See 32 & 33 Vict. c. 24. [244] 5 & 6 Vict. c. 45, sec. 11. [245] 5 & 6 Vict. c. 45, sec. 13. [246] 5 & 6 Vict. c. 45, sec. 19. [247] (1889), 5 T. L. R., 594. [248] _Per_ Coleridge, L. C. J., in _Harris_ v. _Smart_ (1889), 5 T. L. R., 594. [249] (1887), 57 L. T. (N. S.), 864. [250] _Lover_ v. _Davidson_ (1856), 1 C. B., (N. S.), 182; _Leader_ v. _Purday_ (1848), 7 C. B., 4; _Chappell_ v. _Sheard_ (1855), 2 K. and J., 117. [251] (1889), 40 Ch. D., 500 [252] 40 Ch. D., at p. 506. [253] (1864), 10 L. T. (N. S.), 838. [254] As to what is publication, see p. 38. [255] _Wood_ v. _Boosey_ (1867), L. R., 3 Q. B., 223. [256] _Mathieson_ v. _Harrod_ (1868), L. R., 7 Eq., 270; _Collingridge_ v. _Emmott_ (1887), 57 L. T. (N. S.), 864; and see _Page_ v. _Wisden_ (1869), 20 L. T. (N. S.), 435; _Maxwell_ v. _Hogg_ (1867), L. R., 2 Ch., 307. [257] _Thomas_ v. _Turner_ (1886), 33 Ch. D., 292. [258] _Murray_ v. _Bogue_ (1852), 1 Drew, 353; _Hayward_ v. _Lely_ (1887), 56 L. T. (N. S.), 418. [259] _Maple_ v. _Junior Army and Navy Stores_ (1882), 21 Ch. D., 369. [260] _Macmillan_ v. _Suresh Chunder Deb_ (1890), Ind. L. R., 17 Calc., 951. [261] _Henderson_ v. _Maxwell_ (1876), 4 Ch. D., 163. [262] _Johnson_ v. _Newnes_ [1894], 3 Ch., 663. [263] _Mayhew_ v. _Maxwell_ (1860), 1 J. and H., 312. [264] _Dicks_ v. _Yates_ (1881), 18 Ch. D., 76; _Trade Auxiliary_ v. _Middlesborough_ (1889), 40 Ch. D., at p. 434. [265] Bacon, V. C., in _Coote_ v. _Judd_ (1883), 23 Ch. D., 727. [266] _Weldon_ v. _Dicks_ (1878), 10 Ch. D., 247. [267] _Weldon_ v. _Dicks_ (1878), 10 Ch. D., 247; _Rock_ v. _Lazarus_ (1872), L. R., 15 Eq. 104; _Macmillan_ v. _Suresh Chunder Deb_ (1890), Ind. L. R., 17 Calc., 951. [268] _Nottage_ v. _Jackson_ (1883), 11 Q. B. D., 627; 49 L. T. (N. S.), 339. [269] _Weldon_ v. _Dicks_ (1878), 10 Ch. D., 247. [270] _London Printing_ v. _Cox_ [1891], 3 Ch., 291. [271] _Petty_ v. _Taylor_ [1897], 1 Ch., 465. [272] _London Printing_ v. _Cox_ [1891], 3 Ch., _per_ Lindley, L. J., at pp. 301 and 302. [273] _Liverpool General Brokers_ v. _Commercial Press_ [1897], 2 Q. B., 1; _Morang_ v. _Publishers_ (1900), 32 Ont. Rep., 393. [274] _Weldon_ v. _Dicks_ (1878), 10 Ch. D., 247. [275] _Low_ v. _Routledge_ (1864), 33 L. J. Ch., 717; 10 L. T. (N. S.), 838. [276] _Lover_ v. _Davidson_ (1856), 1 C. B. (N. S.), 182. [277] _Cassell_ v. _Stiff_ (1856), 2 K. and J., 279. [278] _Fairlie_ v. _Boosey_ (1879), 4 A. C., 711. [279] 5 & 6 Vict. c. 45, sec. 11; _Hildesheimer & Faulkner_ v. _Dunn_ (1891), 64 L. T. (N.S.), 452. [280] _Lucas_ v. _Cooke_ (1880), 13 Ch. D., 872. [281] 5 & 6 Vict. c. 45, sec. 12. [282] 5 & 6 Vict. c. 45, sec. 14. [283] _Hole_ v. _Bradbury_ (1879), 12 Ch. D., 886; 48 L. J. Ch., 673. [284] _In re The Young Duchess_ (1891), 8 T. L. R., 41. [285] _Ex parte Poulton_ (1884), 53 L. J., Q. B., 320; _in re Hall_ (1899), 24 Vict. L. R., 702. [286] _Ex parte Davidson_ (1856), 18 C. B., 296; see _in re Martin_ (1884), 10 Vict. L. R., Law., 196. [287] Blackburn, J., _Graves'_ case, 10 B. and S., at p. 688. [288] _Ex parte Bastow_ (1854), 14 C. B., 631. [289] _Ex parte Davidson_ (1856), 18 C. B., 296; _Chappell_ v. _Purday_ (1843), 12 M. and W., 303. [290] _Graves'_ case (1869), 4 Q. B., 715. [291] _Graves'_ case (1869), 4 Q. B., 715. [292] _Chappell_ v. _Purday_ (1843), 12 M. and W., 303; _ex parte Davidson_ (1856), 18 C. B., at p. 309. [293] 5 & 6 Vict. c. 45, sec. 10. [294] Ibid. [295] 5 & 6 Vict. c. 45, sec. 6. [296] 5 & 6 Vict. c. 45, sec. 7. [297] Ibid. [298] 5 & 6 Vict. c. 45, sec. 8. [299] (1828), 4 Bing.. 540. [300] Cf. _Cambridge University_ v. _Bryce_ (1812), 16 East., 317; _Routledge_ v. _Low_ (1868), L. R., 3 H. L., 100. [301] 5 & 6 Vict. c. 45, sec. 3. [302] Ibid. [303] 5 & 6 Vict. c. 45, secs. 3, 18. [304] 5 & 6 Vict. c. 45, secs. 3, 18. [305] See _supra_, p. 26. [306] See _Nottage_ v. _Jackson_ (1883), 11 Q. B. D., 627. [307] _Caird_ v. _Sime_ (1887), 12 A. C., 326; _Nicols_ v. _Pitman_ (1884), 26 Ch. D., 374; _Abernethy_ v. _Hutchinson_ (1825), 3 L. J. Ch., 209. [308] 5 & 6 Will. IV. c. 65, sec. 5. [309] _Caird_ v. _Sime_ (1887), 12 A. C., 326. [310] See _Millar_ v. _Taylor_ (1769), 4 Burr., 2303, and cases there cited. [311] _Baskett_ v. _University of Cambridge_ (1758), 2 Burr. 661; _Baskett_ v. _Cunningham_ (1762), Black. Rep., 370. [312] See _Grierson_ v. _Jackson_ (1794), Ridg. Ir., T. R., 304; _Nicol_ v. _Stockdale_ (1785), 3 Swanst., 687. [313] _Universities_ v. _Richardson_ (1802), 6 Ves., 689; _Manners_ v. _Blair_ (1828), 3 Bligh (N. S.), 391; _Grierson_ v. _Jackson_ (1794), Ridg. Ir., T. R., 304. [314] _Universities_ v. _Richardson_ (1802), 6 Ves., 689; _Eyre_ v. _Carnan_ (1781), 6 Bac. Abr., 509; _Manners_ v. _Blair_ (1828), 3 Bligh (N. S.), 391. [315] _Baskett_ v. _Cunningham_ (1762), Black. Rep., 370. [316] See Appendix. [317] 15 Geo. III. c. 53; 41 Geo. III. c. 107, extending the privilege to Dublin; 5 & 6 Vict. c. 45, sec. 27. [318] (1774), 2 Bro. P. C., 129. [319] 5 & 6 Vict. c. 45, sec. 3. [320] This reservation is made necessary by the decision in _Walter_ v. _Lane_ [1900], A. C., 539, that the author is not necessarily the composer of the literary matter; see _infra_, p. 65. [321] (1867), L. R., 3 Eq., 718; see also _Nottage_ v. _Jackson_ (1883), 11 Q. B. D., 627; _Stannard_ v. _Harrison_ (1871), 24 L. T. (N. S.), 570. [322] (1824), 2 L. J. Ch., 90, at p. 102; and see _Maclean_ v. _Moody_ (1858), 20 D., 1154. [323] (1859), 7 C. B. (N. S.), 268. [324] 7 C. B. (N. S.), at p. 280. [325] (1867), 16 L. T. (N. S.), 453. [326] (1859), 7 C. B. (N. S.), 268. [327] (1859) 7 C. B. (N. S.), 268. The decision in this case was no doubt right, but it should have been on the ground that the plaintiff was the employer or assignee of the defendant and not that he was the author. [328] See _Petty_ v. _Taylor_ [1897], 1 Ch., 465; Kekewich, J., at p. 475. [329] _Shepherd_ v. _Conquest_ (1856), 17 C. B., 427; _Nottage_ v. _Jackson_ (1883), 11 Q. B. D., 627. [330] (1856), 17 C. B., 427. [331] On the facts of this case the work of the servant ought to have become vested in the employer. [332] (1871), L. R., 6 C. P., 523; and see _Tree_ v. _Bowkett_ (1896), 74 L. T. (N. S.), 77. [333] (1874), L. R., 9 Ch., 518; and see Bowen, L. J., in _Nottage_ v. _Jackson_ (1883), 11 Q. B. D., 627. [334] _Powell_ v. _Head_ (1879), 12 Ch. D., 686; _Lauri_ v. _Renad_ (1892), 3 Ch., 402. [335] Ibid. [336] [1900], A. C., 539. [337] Ibid. [338] 5 & 6 Vict. c. 45, sec. 18. [339] Chitty, J., in _Trade Auxiliary_ v. _Middlesborough_ (1889), 40 Ch. D., at p. 430. [340] And in one case it was even doubted whether it applied to newspapers, _Platt_ v. _Walter_ (1867), 17 L. T. (N. S.), 157. [341] _Lamb_ v. _Evans_ [1893], 1 Ch., 218; _Trade Auxiliary_ v. _Middlesborough_ (1889), 40 Ch. D., 425. [342] (1856), 17 C. B., 427 [343] _Brown_ v. _Cooke_ (1846), 16 L. J. Ch., 140. [344] As to whether a written assignment of the copyright from the author would be necessary in such a case, see _infra_, at p. 74. [345] (1895), 11 T. L. R., 507. [346] _Brown_ v. _Cooke_ (1846), 16 L. J. Ch., 140. [347] (1855), 16 C. B.,459. [348] (1889), 40 Ch. D., 425; and see _Trade Auxiliary_ v. _Jackson_ (1887), 4 T. L. R., 130. [349] [1893], 1 Ch., 218; and see _Maple_ v. _Junior Army and Navy Stores_ (1882), 21 Ch. D., 369. [350] (1855), 16 C. B., at p. 484. [351] (1881), 17 Ch. D., 708; and see _Bishop of Hereford_ v. _Griffin_ (1848), 16 Sim., 190. [352] [1894], 3 Ch., 663. [353] And see _Coote_ v. _Judd_ (1883), 23 Ch. D., 727. [354] [1902], 1 Ch., 264. [355] (1889), 40 Ch. D., 425. [356] Chitty, J., 40 Ch. D., at p. 431. [357] _Brown_ v. _Cooke_ (1846), 16 L. J. Ch., 140; _Richardson_ v. _Gilbert_ (1851), 1 Sim. (N. S.), 336; _Collingridge_ v. _Emmott_ (1888), 57 L. T. (N. S.), 864; _Trade Auxiliary_ v. _Middlesborough_ (1889), 40 Ch. D., 425; _Trade Auxiliary_ v. _Jackson_ (1887), 4 T. L. R., 130. [358] _Trade Auxiliary_ v. _Middlesborough_ (1889), 40 Ch. D., at p. 430. [359] See cases cited, p. 79, footnote 4. [360] See Chitty, J., _Trade Auxiliary_ v. _Middlesborough_ (1889), 40 Ch. D., at p. 430. [361] See _Johnson_ v. _Newnes_ [1894], 3 Ch., 663. [362] _Mayhew_ v. _Maxwell_ (1860), 1 J. and H., 312. [363] _Smith_ v. _Johnson_ (1863), 4 Giff., 632. [364] _Mayhew_ v. _Maxwell_ (1860), 1 J. and H., 312. [365] Ibid. [366] _Hereford_ v. _Griffin_ (1848), 16 Sim., 190. [367] (1855), 16 C. B., 459. [368] (1891), 64 L. T., 452. [369] 5 & 6 Vict. c. 45. [370] 5 & 6 Vict. c. 45, sec. 15. [371] See p. 77, _infra_. [372] (1824), 2 B. and Cr., 861; see _Cary_ v. _Kearsley_ (1802), 4 Esp., 168; _Storace_ v. _Longman_ (1788), 2 Camp., 26 _n._ [373] (1814), 3 M. and S., 7. [374] (1838), 9 Sim., 151. [375] (1839), 8 L. J. Ch., 216; see _Hodges_ v. _Welsh_ (1840), 2 Ir. Eq. R., 266. [376] (1854), 4 H. L. C., 815; see _M'Lean_ v. _Moody_ (1858), 20 D., 1154; _Jefferys_ v. _Kyle_ (1856), 18 D., 906; _Cocks_ v. _Purday_ (1848), 5 C. B., 860. [377] 4 H. L. C., at p. 880. [378] 4 H. L. C., at p. 907. [379] _Hazlitt_ v. _Templeman_ (1866), 13 L. T. (N. S.), 593; _Grace_ v. _Newman_ (1875), L. R., 19 Eq., 623; _Cox_ v. _Cox_ (1853), 11 Hare, 118. [380] See _Frowde_ v. _Parish_ (1896), 27 Ont Rep., 526; _Macmillan_ v. _Suresh Chunder Deb_ (1890), Ind. L. R., 17 Calc., 951. [381] See p. 128. [382] See _Shepherd_ v. _Conquest_ (1856), 17 C. B., 427; _Eaton_ v. _Lake_ (1888), 20 Q. B. D., 378. [383] 5 & 6 Vict. c. 45, sec. 15; _Leyland_ v. _Stewart_ (1876), 4 Ch. D., 419; _Power_ v. _Walker_ (1814), 3 M. and S., 7; _Davidson_ v. _Bohn_ (1848), 6 C. B., 456; _Clementi_ v. _Walker_ (1824), 2 Bar. and Cres., 861; _Jefferys_ v. _Boosey_ (1854), 4 H. L. C., 815; [See the judgment of Lord St. Leonards at p. 944; but note also that Coleridge, J., at p. 906, expressed his disapproval of the reasoning in _Power_ v. _Walker_ and _Davidson_ v. _Bohn_]; _Kyle_ v. _Jefferys_ (1859), 3 Macq., 611, 617, 18 D., 906; _Cumberland_ v. _Copeland_ (1862), 1 H. and C., 194; _Cocks_ v. _Purday_ (1848), 5 C. B., 860; see Drone on "Copyright," pp. 304-316, where the soundness of the case law that assignment must be in writing is doubted. [384] _Kyle_ v. _Jefferys_ (1859), 3 Macq., 611; _Jefferys_ v. _Boosey_ (1854), 4 H. L. C., 815. [385] _Morton_ v. _Copeland_ (1855), 16 C. B., 517. [386] _Liverpool General Brokers_ v. _Commercial Press_ [1897], 2 Q. B., 1; see _contra_ opinion of Lord Cockburn in _Wood_ v. _Boosey_ (1867), 7 B. and S., at p. 897; _Morang_ v. _Publishers_ (1900), 32 Ont. Rep., 393. [387] 5 & 6 Vict. c. 45, sec. 13. [388] _Stevens_ v. _Wildy_ (1850), 19 L. J. Ch., 190. [389] Ibid. [390] _Liverpool General Brokers_ v. _Commercial Press_ [1897], 2 Q. B., 1. [391] _Levy_ v. _Rutley_ (1871), L. R., 6 C. P., 523; _Leader_ v. _Purday_ (1849), 7 C. B., 4; _Colburn_ v. _Duncombe_ (1838), 9 Sim., 151; _London Printing and Publishing Co_. v. _Cox_ [1891], 3 Ch., 291. [392] _Leader_ v. _Purday_ (1849), 7 C. B., 4. [393] _Lacy_ v. _Toole_ (1867), 15 L. T. (N. S.), 512. [394] _Tree_ v. _Bowkett_ (1895), 74 L. T. (N. S.), 77; _Lover_ v. _Davidson_ (1856), 1 C. B. (N. S.), 182; _Latour_ v. _Bland_ (1818), 2 Stark, 382; _Levy_ v. _Rutley_ (1871), L. R., 6 C. P., 523; _Colburn_ v. _Duncombe_ (1838), 9 Sim., 151; but see _Kyle_ v. _Jefferys_ (1859), 3 Macq., 611, 18 D., 911. [395] _Cooper_ v. _Stephens_ [1895], 1 Ch., 567; _Marshall_ v. _Petty_ (1900), 17 T. L. R., 501. [396] _Morris_ v. _Kelly_ (1820), 1 Jac. and W., 481. [397] _Dennison_ v. _Ashdown_ (1897), 13 T. L. R., 226. [398] _Sweet_ v. _Cater_ (1841), 11 Sim., 572; _Sweet_ v. _Shaw_ (1839), 8 L. J. Ch., 216; _Sims_ v. _Marryat_ (1851), 17 Q. B., 281; _Strahan_ v. _Graham_ (1867), 16 L. T. (N. S.), 87; _Thombleson_ v. _Black_ (1837), 1 Jur., 198. [399] _Dupuy_ v. _Dilkes_ (1879), 48 L. J. Ch., 682; _Chappell_ v. _Purday_ (1843), 12 M. and W., 303. [400] _Taylor_ v. _Pillow_ (1869), L. R., 7 Eq., 418; _Howitt_ v. _Hall_ (1862), 6 L. T. (N. S.), 348. [401] _Sims_ v. _Marryat_ (1851), 17 Q. B., 281; _Queensberry_ v. _Shebbeare_ (1758), 2 Eden Cha. Cas., 330; Williams' "Law of Personal Property," 15th edition, p. 523. [402] _Powell_ v. _Head_ (1879), 12 Ch. D., 686. [403] _Lauri_ v. _Renad_ [1892], 3 Ch., 402. [404] _Powell_ v. _Head_ (1879), 12 Ch. D., 686. [405] (1854), 4 H. L. C., at p. 940; and see _Cocks_ v. _Purday_ (1848), 5 C. B., 860. [406] (1854), 4 H. L. C., 815. [407] _Taylor_ v. _Neville_ (1878), 26 W. R., 299; _Tree_ v. _Bowkett_ (1895), 74 L. T. (N. S.), 77; see doubt expressed in _Shepherd_ v. _Conquest_ (1856), 17 C. B., at p. 436. [408] _Lucas_ v. _Cooke_ (1880), 13 Ch. D., 872. [409] 5 & 6 Vict. c. 45, sec. 13. [410] (1889), 40 Ch. D., 434, 435. [411] _Holt_ v. _Woods_ (1896), 17 N. S. W. R., Eq., 36. [412] See _ex parte Dobson_ (1892), 12 N. Z. L. R., 171. [413] See _contra Howitt_ v. _Hall_ (1862), 6 L. T. (N. S.), 348; _Sweet_ v. _Cater_ (1840), 11 Sim., 572; _Davidson_ v. _Bohn_ (1848), 6 C. B., 458. [414] _Rippon_ v. _Norton_(1839), 2 Beav., 63. [415] _Hole_ v. _Bradbury_ [1879], 12 Ch. D., 886; _Stevens_ v. _Bradbury_ [1854], 1 K. and J., 168; _Reade_ v. _Bentley_(1857), 3 K. and J., 271; _Cooper_ v. _Stephens_ [1895], 1 Ch., 567; _ex parte Bastow_ [1854], 14 C. B., 631. [416] _Trade Auxiliary_ v. _Middlesborough_ (1889), 40 Ch. D., 425, _per_ Cotton, L. J.; _Tuck and Sons_ v. _Canton_ (1882), 51 L. J., Q. B., 363; _Sweet_ v. _Cater_ (1841), 11 Sim., 572. [417] _Taylor_ v. _Neville_ (1878), 26 W. R., 299; _Tree_ v. _Bowkett_ (1895), 74 L. T., 77. [418] (1878), 26 W. R., 297. [419] _Warne_ v. _Routledge_ (1874), L. R., 18 Eq., 497; see _Sweet_ v. _Cater_ (1841), 11 Sim., 572; _Stevens_ v. _Benning_ (1855), 1 K. and J., 168. [420] _Latour_ v. _Bland_ (1818), 2 Stark, 382. [421] _Willis_ v. _Curtois_ (1838), 1 Beav., 189. [422] See _Mawman_ v. _Tegg_ (1826), 2 Russ., at p. 392. [423] 5 & 6 Vict. c. 45, secs. 15 and 2. [424] See _Butterworth_ v. _Kelly_ (1888), 4 T. L. R., 430; _Leader_ v. _Strange_ (1849), 2 Car. and K., 1010. [425] 5 & 6 Vict. c. 45, secs. 15 and 23. The remedies given by these two sections are cumulative, and may be recovered by one action; _Muddock_ v. _Blackwood_ [1898], 1 Ch., 58. [426] 5 & 6 Vict. c. 45, sec. 17; 39 and 40 Vict. c. 36, sec. 42. [427] Ignorance will not excuse in the case of importing, but contra in the case of selling or hiring, _Cooper_ v. _Whittingham_ (1880), 15 Ch. D., 501. [428] _Cooper_ v. _Whittingham_ (1880). 15 Ch. D., 501. [429] 5 & 6 Vict. c. 45, sec. 17; and see 39 & 40 Vict. c. 36, sec. 42. [430] £5 to the use of the officer of customs, remainder to the use of the proprietor of copyright. [431] Ibid. [432] _Cooper v. Whittingham_ (1880), 15 Ch. D., 501. [433] [1901], 1 Ch., 374. [434] Cf. _Colburn_ v. _Simms_ (1843), 2 Hare, 543. [435] [1901], 1 Ch., 374. [436] _Novella_ v. _Sudlow_ (1852), 12 C. B., 177; and see _Beckford_ v. _Hood_ (1798), 7 T. R., 620; _Cambridge University_ v. _Bryer_ (1812), 16 East, at p. 322. [437] _Muddock_ v. _Blackwood_ [1898], 1 Ch., 58; _Pike_ v. _Nicholas_ (1869), L. R., 5 Ch., 251, at pp. 255 and 260. [438] _Hogg_ v. _Kirby_ (1803), 8 Ves., 215, at p. 223; _Grimson_ v. _Eyre_ (1804), 9 Ves., 341, at p. 346; _Kelly_ v. _Hooper_ (1841), 1 Y. and C., 197, at p. 199; _Colburn_ v. _Simms_ (1843), 2 Hare, 543. [439] _Delfe_ v. _Delamotte_ (1857), 3 K. and J., 581; but see _Pike_ v. _Nicholas_ (1869), L. R., 5 Ch., 251. [440] _Baily_ v. _Taylor_ (1829), 1 R. and M., 73; _Price's Patent Candles_ v. _Bauwen_ (1858), 4 K. and J., 727; _Delondre_ v. _Shaw_ (1828), 2 Sim., 240; _Sweet_ v. _Maughan_ (1840), 11 Sim., 51. [441] Eldon, L. C., in _Mawman_ v. _Tegg_ (1826), 2 Russ., at p. 400. [442] _Cooper_ v. _Whittingham_ (1880), 15 Ch. D., 501. [443] _M'Neill_ v. _Williams_ (1847), 11 Jur., 344; _Hogg_ v. _Kirby_ (1803), 8 Ves., 215. [444] Hall, V. C., in _Maple_ v. _Junior Army and Navy Stores_ (1882), 21 Ch. D., at p. 372. [445] _Chappell_ v. _Davidson_ (1856), 8 De G. M. and G., 1. [446] _Novella_ v. _James_ (1854), 24 L. J. Ch., 111. [447] _Southey_ v. _Sherwood_ (1817), 2 Mer., 435; _Platt_ v. _Button_ (1815), 19 Ves., 447; _Saunders_ v. _Smith_ (1838), 3 My. and C., 711; _Lewis_ v. _Chapman_ (1840), 3 Beav., 133; _Assignees of Robinson_ v. _Wilkins_ (1805), 8 Ves., 224, n; _Baily_ v. _Taylor_ (1829), 1 Russ. and My., 73; _Rundell_ v. _Murray_ (1821), Jac., 311; and see _Buxton_ v. _James_ (1851), 5 De G. and Sm., 80. [448] _Morris_ v. _Ashbee_ (1868), L. R., 7 Eq., 34. [449] _Per_ Gifford, V. C., L. R., 7 Eq., at p. 39. [450] _Hogg_ v. _Scott_ (1874), L. R., 18 Eq., 444. [451] _Per_ Turner, L. J., in _Johnson_ v. _Wyatt_ (1863), 2 De G., J. and S., at p. 25. [452] _Lewis_ v. _Fullarton_ (1839), 2 Beav., 6; _Kelly_ v. _Morris_ (1866), L. R., 1 Eq., 697; _Mawman_ v. _Tegg_ (1826), 2 Russ., 385. [453] _Jarrold_ v. _Houlston_ (1857), 3 K. and J., 708; _Lamb_ v. _Evans_ [1892], 3 Ch., 462. [454] [1892], 3 Ch., 462. [455] _Campbell_ v. _Scott_ (1842), 11 Sim., 31; _Tinsley_ v. _Lacy_ (1863), 1 H. and M., 747. [456] _Borthwick_ v. _Evening Post_ (1888), 37 Ch. D., 449. [457] 37 Ch. D., at p. 462. [458] (1889), 40 Ch. D., 500. [459] 40 Ch. D., at p. 507; and see _Trade Auxiliary_ v. _Middlesborough_ (1889), 40 Ch. D., 425. [460] _Bradbury_ v. _Sharp_ (1891), W. N., 143. [461] _Cox_ v. _Land and Water_ (1869), L. R., 9 Eq., 324; _Southern_ v. _Bailes_ (1829), 38 S. J., 681. [462] _Cox_ v. _Land and Water_ (1869), L. R., 9 Eq., 324; _Baily_ v. _Taylor_ (1829), 1 R. and M., 73. [463] _Lewis_ v. _Fullarton_ (1839), 2 Beav., 6, Langdale, M. R., at p. 11. [464] 5 & 6 Vict. c. 45, sec. 23. To be safe the demand in writing should be made before the writ is issued. [465] 8 Anne c. 19, sec. 1; 54 Geo. III. c. 156, sec. 4. [466] _Colburn_ v. _Simms_ (1843), 2 Hare, 543. [467] _Prince Albert_ v. _Strange_ (1849), 2 De G. and Sm., 652; _Kelly_ v. _Hodge_(1873), 29 L. T. (N. S.), 387; _Emperor of Austria_ v. _Day_ (1861), 3 D. F. and J., 217. [468] _Hole_ v. _Bradbury_ (1879), 12 Ch. D., 886; but see _Delfe_ v. _Delamotte_ (1857), 3 K. and J., 581; _Stannard_ v. _Harrison_ (1871), 19 W. R., 811. [469] _Hole_ v. _Bradbury_ (1879), 12 Ch. D., 886; cf. _Colburn_ v. _Simms_ (1843), 2 Hare, 543. [470] _Isaacs_ v. _Fiddemann_ (1880), 49 L. J. Ch., 412. [471] _Rooney_ v. _Kelly_ (1861), 14 Ir. C. L. R., _per_ O'Brien, J., at p. 171. [472] _Warne_ v. _Seebohm_ (1888), 39 Ch. D., 73. [473] Ibid. [474] _Warne_ v. _Seebohm_ (1888), 39 Ch. D., at p. 83. [475] _Colburn_ v. _Simms_ (1843), 2 Hare, 543; _Hole_ v. _Bradbury_( 1879), 12 Ch. D., 886. [476] 39 & 40 Vict. c. 36, sec. 42. [477] 39 & 40 Vict. c. 36, sec. 44. [478] _Brooke_ v. _Milliken_ (1789), 3 T. R., 509. [479] _Ex parte Beal_ (1868), L. R., 3 Q. B., 387. [480] _Hogg_ v. _Scott_ (1874), L. R., 18 Eq., 444; see _Macmillan_ v. _Suresh Chunder Deb_ (1850), Ind. L. R., 17 Calc., 951. [481] (1846), 9 D., 1026; and see _Clark_ v. _Bell_ (1804), Mor. Dic., Literary Property, App., 9. [482] (1878), 10 Ch. D., 247, at p. 262. [483] 56 & 57 Vict. c. 61; _Muddock_ v. _Blackwood_ [1898], 1 Ch., at p. 64. [484] 5 & 6 Vict. c. 45, sec. 16; _Hole_ v. _Bradbury_ (1879), 12 Ch. D., 886. [485] _Boosey_ v. _Davidson_ (1846), 4 Dow. and Low, at p. 155. [486] _Collette_ v. _Goode_ (1878), 7 Ch. D., 842; _Boosey_ v. _Purday_ (1846), 10 Jur., 1038; _Boosey_ v. _Davidson_ (1846), 4 D. and L., 147; _Leader_ v. _Purday_ (1849), 7 C. B., 4; _Barnett_ v. _Glossop_ (1835), 1 Bing. N. C., 633; 1 Scott's Rep., 621. [487] _Chappell_ v. _Davidson_ (1856), 18 C. B., 194. [488] _Collette_ v. _Goode_ (1878), 7 Ch. D., 842. [489] _Boosey_ v. _Davidson_ (1846), 4 D. and L., 147; _Hole_ v. _Bradbury_ (1879), 12 Ch. D., 886. [490] Ibid. [491] _Collette_ v. _Goode_ (1878), 7 Ch. D., 842. [492] _Sweet_ v. _Benning_ (1855), 16 C. B., 459; _Cocks_ v. _Purday_ (1848), 5 C. B., 860. [493] _Hayward_ v. _Lely_ (1887), 56 L. T. (N. S.), 418. [494] _Coote_ v. _Judd_ (1883), 23 Ch. D., 736; _Hole_ v. _Bradbury_ (1879), 12 Ch. D., 886; _Collette_ v. _Goode_ (1878), 7 Ch. D., 842; but see _Leader_ v. _Purday_ (1848), 6 Dow. and Low, 408. [495] _Collette_ v. _Goode_ (1878), 7 Ch. D., 842. [496] Ibid. [497] _Hayward_ v. _Lely_ (1887), 56 L. T. (N. S.), 418. [498] _Harris_ v. _Smart_ (1889), W. N., 92, 5 T. L. R. 594. [499] But see _Sweet_ v. _Maughan_ (1840), 11 Sim., 51. [500] Eldon, L. C., in _Mawman_ v. _Tegg_ (1826), 2 Russ., at p. 394. [501] _Hotten_ v. _Arthur_ (1863), 1 H. and M., 603; _Jarrold_ v. _Houlston_ (1857), 3 K. and J., 708. [502] Ibid. [503] _Boosey_ v. _Davidson_ (1849), 13 Q. B., 257. [504] _Wright_ v. _Goodlake_ (1865), 3 H. and C., 540. [505] _Kelly_ v. _Wyman_ (1869), 17 W. R. 399; _Stevens_ v. _Brett_ (1864), 10 L. T. (N. S.), 231. [506] _Coote_ v. _Ingram_ (1887), 35 Ch. D., 117. [507] _Maxwell_ v. _Somerton_ (1874), 22 W. R., 313. [508] _Walter_ v. _Steinkopff_ [1892], 3 Ch., 189. [509] _Wall_ v. _Taylor_ (1883), 11 Q. B. D., 102. [510] _Dicks_ v. _Brooks_ (1880), 15 Ch. D., 22. [511] _Metzler_ v. _Wood_ (1878), 8 Ch. D., 606. [512] Lord Romilly, M. R., in _Cobbett_ v. _Woodward_ (1872), L. R., 14 Eq., at p. 414; Hall, V. C., in _Maple_ v. _Junior Army and Navy Stores_, 21 Ch. D., at p. 373. [513] _Piddington_ v. _Philip_ (1893), 14 N. S. W. R., Eq., 159. [514] _Kelly's Directories_ v. _Gavin & Lloyds_ [1901], 1 Ch., 374; affirmed in the Court of Appeal. [515] _Pike_ v. _Nicholas_ (1869), L. R., 5 Ch., 251; _Cobbett_ v. _Woodward_ (1872), L. R., 14 Eq., 407. [516] _Liverpool General Brokers_ v. _Commercial Press_ [1897], 2 Q. B., 1. [517] _Page_ v. _Wisden_ (1869), 20 L. T., 435. [518] James, L. J., in _Dicks_ v. _Yates_ (1881), 18 Ch. D., 76. [519] Jessel, M. R., in _Maple_ v. _Junior Army and Navy Stores_, 21 Ch. D., at p. 378. [520] Lord Ellenborough in _Roworth_ v. _Wilkes_ (1807), 1 Camp., at p. 97. [521] _Novello_ v. _Sudlow_ (1852), 12 C. B., 177. [522] _White_ v. _Geroch_ (1819), 2 B. and Ald., 298; Lindley, M. R., in _Boosey_ v. _Whight_ [1900], 1 Ch., at p. 123. [523] _Novello_ v. _Sudlow_ (1852), 12 C. B., 177. [524] _Warne_ v. _Seebohm_ (1888), 39 Ch. D., 73. [525] See Lindley, M. R., in _Boosey_ v. _Whight_ [1900], 1 Ch., at p. 123. [526] _Bach_ v. _Longman_(1777), 2 Cowp., 623; _D'Almaine_ v. _Boosey_(1835), 1 Y. and C., Ex., 288. [527] _Nicols_ v. _Pitman_ [1884], 26 Ch. D., 374. [528] _Boosey_ v. _Whight_ [1900], 1 Ch., 122. [529] Lord O'Hagan in _Chatterton_ v. _Cave_ (1878), 3 A. C., at p. 498. [530] (1855), 16 C. B., at p. 481. [531] (1875), L. R., 10 C. P., at p. 575. [532] See also _Bohn_ v. _Bogue_ (1846), 10 Jur., 420; _Jarrold_ v. _Heywood_ (1870), 18 W. R., 279; _Baily_ v. _Taylor_ (1829), 1 R. and M., 73. [533] (1878). 3 A. C., 483. [534] (1869), L. R., 5 Ch., 251. [535] _Leslie_ v. _Young_ [1894], A. C., at p. 342. [536] _Cary_ v. _Kearsley_ (1802), 4 Esp., 168; _Lennie_ v. _Pillans_ (1843), 5 D., 416; _Cooper_ v. _Stephens_ [1895], 1 Ch., 567. [537] _Per_ Page Wood, V. C., in _Tinsley_ v. _Lacey_ (1863), 1 H. and M., at p. 752. [538] _Per_ L. C. Herschell in _Leslie_ v. _Young_ [1894], A. C., at p. 341. [539] See _Murray_ v. _Bogue_(1852), 1 Drew, at p. 369. [540] _Per_ Cottenham, L. C., in _Bramwell_ v. _Halcomb_ (1836), 3 My. and Cr., at p. 738; see _Scott_ v. _Stanford_ (1867), L. R., 3 Eq., 718. [541] _Bradbury_ v. _Hotten_ (1872), L. R., 8 Ex., 1; see also _Cooper_ v. _Stephens_ [1895], 1 Ch., 567. [542] (1826), 2 Russ., at p. 394. [543] (1897), 13 T. L. R., 209; and see _Kelly_ v. _Hooper_ (1841), 1 Y. and C. Ch. C., 197; _Cooper_ v. _Stephens_ [1895], 1 Ch., 567. [544] _Trade Auxiliary_ v. _Middlesborough_ (1889), 40 Ch. D., 425; _Cate_ v. _Devon_ (1889), 40 Ch. D., 500. [545] _Trade Auxiliary_ v. _Middlesborough_ (1889), 40 Ch. D., 425; _Cate_ v. _Devon_ (1889), 40 Ch. D., 500. [546] 40 Ch. D., at p. 507. [547] _Jarrold_ v. _Houlston_ (1857), 3 K. and J., 708. [548] (1802), 4 Esp., 168. [549] _Jarrold_ v. _Houlston_ (1857), 3 K. and J., 708. [550] _Per_ Lord Ellenborough in _Cary_ v. _Kearsley_ (1802), 4 Esp., at p. 170. [551] _Roworth_ v. _Wilkes_ (1807), 1 Camp., 97. [552] _Per_ Shadwell, V. C., in _Campbell_ v. _Scott_ (1842), 11 Sim., 31; _Clement_ v. _Maddick_ (1859), 1 Giff., 98; _Reade_ v. _Lacy_ (1861), 1 J. and H., 524; _Scott_ v. _Stanford_ (1867), L. R., 3 Eq.,718. [553] (1867), L. R., 3 Eq., 718. [554] (1802), 4 Esp., 168. [555] See also _Bohn_ v. _Bogue_ (1846), 10 Jur., 420. [556] _Per_ Sir W. Page Wood, V. C., in _Scott_ v. _Stanford_ (1867), L. R., 3 Eq., 718, at p. 723; and see _Kelly_ v. _Morris_ (1866), L. R., 1 Eq., 697. [557] _Jarrold_ v. _Houlston_ (1857), 3 K. and J., 708; _Reade_ v. _Lacey_ (1861), 1 J. and H., 524; _Spiers_ v. _Brown_ (1858), 31 L. T. (O. S.), 18; 6 W. R., 352. [558] (1847), 9 D., 748. [559] _Hotten_ v. _Arthur_ (1863), 1 H. and M., 603. [560] _Novello_ v. _Sudlow_ (1852), 12 C. B., 177. [561] _Ager_ v. _The P. & O._ (1884), 26 Ch. D., 637; and see _Oxford and Cambridge_ v. _Gill_ (1899), 43 S. J., 570. [562] _Murray_ v. _Bogue_ (1852), 1 Drew, 353. [563] _Reade_ v. _Lacey_ (1861), 1 J. and H., 524; _Reade_ v. _Conquest_ (1862), 11 C. B. (N. S.), 479. [564] (1889), 40 Ch. D., 500; _Cooper_ v. _Whittingham_ (1880), 15 Ch. D., 501. [565] See Lord Blackburn in _Chatterton_ v. _Cave_, 3 A. C., at p. 501; _Novello_ v. _Sudlow_ (1852), 12 C. B., 177; _Rock_ v. _Lazarus_ (1872), L. R. 15 Eq., 104; _Lee_ v. _Simpson_ (1847), 3 C. B., 871. [566] _Maxwell_ v. _Somerton_ (1874), 22 W. R., 313. [567] _Wyatt_ v. _Barnard_ (1814), 3 V. and B., 77. [568] [1892], 3 Ch., 489. [569] [1892], 3 Ch., 489, _per_ North, J., at p. 499. [570] This summary of "fair use" is taken from Stephen's Digest "Report of Copyright Commission," 1878, p. lxx. [571] _Sayre_ v. _Moore_ (1785), 1 East., 361, _n._; _Hogg_ v. _Kirby_ (1803), 8 Ves., 215; _Matthewson_ v. _Stockdale_ (1806), 12 Ves., 270; _Mawman_ v. _Tegg_ (1826), 2 Russ., 385; _Pike_ v. _Nicholas_ (1869), L. R., 5 Ch., 251; _Alexander_ v. _Mackenzie_ (1847), 9 D., 748 at p. 761; _Longman_ v. _Winchester_ (1809), 16 Ves., 269; _Wilkins_ v. _Aikin_ (1810), 17 Ves., 422; _Weekes_ v. _Williamson_ (1886), 12 Vict., L. R., 483. [572] Lindley, L. J., _Lamb_ v. _Evans_ [1893], 1 Ch., at p. 224. [573] _Hogg_ v. _Kirby_ (1803), 8 Ves., 215. [574] _Per_ Lord Chancellor Erskine in _Matthewson_ v. _Stockdale_ (1806), 12 Ves., at p. 273. [575] _Wilson_ v. _Lake_ (1875), 1 Vict. L. R., Eq., 127. [576] Lindley., L. J., in _Hollinrake_ v. _Truswell_ [1894], 3 Ch., at p. 427. [577] _Jarrold_ v. _Houlston_ (1857), 3 K. and J., 708. [578] _Morris_ v. _Ashbee_ (1868), L. R., 7 Eq., 34; _Lennie_ v. _Pillans_ (1843), 5 D., 416; _Mawman_ v. _Tegg_ (1826), 2 Russ., 385; Lindley, L. J., in _Lamb_ v. _Evans_ [1893], 1 Ch., at p. 224. [579] _Pike_ v. _Nicholas_ (1869), L. R., 5 Ch., 251, at p. 260. [580] (1866), L. R., 1 Eq., 697. [581] (1809), 16 Ves., 269; and see _Matthewson_ v. _Stockdale_ (1806), 1 J. and H., 312; _Baily_ v. _Taylor_ (1829), 1 Russ. and Mylne, 73; _Wilkins_ v. _Aikin_ (1810), 17 Ves., at p. 424. [582] (1839), 2 Beav., 6., at p. 8. [583] And see _Garland_ v. _Gemmill_ (1887), 14 S. C. R. (Canada), 321. [584] _Jarrold v. Houlston_ (1857), 3 K. and J., 708. [585] 3 K. and J., at p. 715. [586] 1 H. and M., 603. [587] (1866), L. R., 1 Eq., 697. [588] See _Hogg_ v. _Scott_ (1874), L. R., 18 Eq., 444. [589] (1867), L. R., 3 Eq., 718. [590] (1868), L. R., 7 Eq., 34. [591] (1866), L. R., 1 Eq., 697. [592] (1839), 2 Beav., 6. [593] See _Garland_ v. _Gemmill_ (1887), 14 S. C. R. (Canada), 321. [594] _Morris_ v. _Ashbee_ (1868), L. R., 7 Eq., 34, _per_ Giffard, V. C., at pp. 40, 41. [595] (1870), L. R., 5 Ch., 279. [596] (1866), L. R., 1 Eq., 697. [597] (1868), L. R., 7 Eq., 34. [598] (1866), L. R., 1 Eq., 697. [599] _Per_ Giffard, L. J., L. R., 5 Ch., at p. 285. [600] (1869), L. R., 5 Ch., 251. [601] Hatherley, L. C., L. R., 5 Ch., at p. 263; and see _Longman_ v. _Winchester_(1809), 16 Ves., at p. 271; _Moffat & Paige_ v. _Gill_ (1902), C. A., April 25. [602] _Per_ Giffard, L. J., L. R., 5 Ch., at p. 268. [603] _Matthewson_ v. _Stockdale_ (1806), 1 J. and H., 312; _Walter_ v. _Lane_ [1900], A. C., 539; _Kelly_ v. _Morris_ (1866), L. R., 1 Eq., 697; _Morris_ v. _Wright_ (1870), L. R., 5 Ch., 279; _Batty_ v. _Taylor_ (1829), 1 Russ. and Mylne, 73. [604] _Wilkins_ v. _Aikin_ (1810), 17 Ves., 422. [605] (1872), L. R., 8 Ex., 1. [606] _Per_ Kelly, C. B., L. R. 8 Ex., 1, at p. 5. [607] (1872), L. R., 8 Ex., 1. [608] (1884), 26 Ch. D., 374. [609] _Roworth_ v. _Wilkes_ (1807), 1 Camp., 94; _Murray_ v. _MacFarquhar_ (1785), M., 8309. [610] _Sweet_ v. _Shaw_ (1839), 3 Jur., 217. [611] _Hodges_ v. _Welsh_ (1840), 2 Ir. Eq. Rep., 266. [612] _Sweet_ v. _Shaw_ (1839), 3 Jur., 217. [613] (1855), 16 C. B., 459. [614] (1838), 3 Myl. and Cr., 711. [615] (1840), 2 Ir. Eq. R., 266. [616] (1826), 2 Russ., 385, at p. 393; see Lord Kinloch in _Black_ v. _Murray_ (1870), 9 M., at p. 356. [617] _Whittingham_ v. _Wooler_ (1817), 2 Swanst, 428; _Wilkins_ v. _Aikin_ (1810), 17 Ves., 422. [618] _Bell_ v. _Whitehead_(1839), 8 L. J. Ch., 141. [619] _Per_ Lord Ellenborough in _Roworth_. v. _Wilkes_ (1807), 1 Camp., 94, at p. 97. [620] (1842), 11 Sim., 31. [621] (1874), 31 L. T. (N. S.), 775. [622] (1785), 1 East., 361, _n._ [623] (1802), 4 Esp., 168; and see _Carnan_ v. _Bowles_ (1786), 1 Cox, Eq. Cas., 283. [624] (1833), 6 Sim., 297. [625] (1835), 1 Y. and C. Ex., 288. [626] _Wood_ v. _Boosey_ (1868), L. R., 3 Q. B., 223, 9 B. and S., 175. [627] _Warne_ v. _Seebohm_ (1888), 39 Ch. D., 73; _Oxford and Cambridge_ v. _Gill_ (1899), 43, S. J., 570; _Jarrold_ v. _Houlston_ (1857), 3 K. and J., 708; _Kelly_ v. _Morris_ (1866), L. R., 1 Eq., 697; _Scott_ v. _Stanford_ (1867), L. R., 3 Eq., 718. [628] _Leslie_ v. _Young_ [1894], A. C., Lord Herschell, at p. 341. [629] See p. 97, _supra_. [630] _Tinsley_ v. _Lacy_ (1863), 1 H. and M., 747; _Murray_ v. _Elliston_ (1822), 5 B. and Ald., 657; _Reade_ v. _Conquest_ (1861), 9 C. B. (N. S.), 755; _Toole_ v. _Young_ (1874), L. R., 9 Q. B., 523. [631] _Tinsley_ v._Lacy_ (1863), 1 H. and M., 747. [632] (1888), 39 Ch. D., 73. [633] _Tinsley_ v. _Lacy_ (1863), 1 H. and M., 747. [634] See Stephen's "Digest," Art. 9 ("Report Copyright Commission," 1878, p. lxx.). [635] _Gyles_ v. _Wilcox_ (1740), 2 Atk., 142. [636] Ibid. [637] _Tonson_ v. _Walker_ (1752), 3 Swans., 672, at p. 681; _Millar_ v. _Taylor_ (1769), 4 Burr., Willes, J., at p. 2311; _Bell_ v. _Walker_ (1785), 1 Bro. Ch. C., 450; _Murray_ v. _Elliston_ (1822), 1 Dow and Ry., 299; _Butterworth_ v. _Robinson_ (1801), 5 Ves., 709. [638] (1761), Amb., 402; and see _Anonymous Case_ (1774), Lofft., 775. [639] (1835), 1 Y. and C., Ex., 288. [640] _Per_ Lord Lyndhurst, L. C. B., at p. 301. [641] (1761), Amb., 402. [642] _Dickens_ v. _Lee_ (1844), 8 Jur., 183, at p. 184. [643] _Tinsley_ v. _Lacy_ (1863), 1 H. and M., 747, at p. 754; and see the observations of the same judge in _Spiers_ v. _Brown_ (1858), 6 W. R., 352. [644] _Munshi_ v. _Mirza_ (1890), Ind. L. R., 14 Bomb., 586; _Macmillan_ v. _Shamsal_ (1894), Ind. L. R., 19 Bomb., 557. [645] (1720), 2 Meriv., at p. 441. [646] (1769), 4 Burr., Yates J., at p. 2348. [647] (1849), 2 De G. and M., at p. 693. [648] (1814), 3 V. and B., 77. [649] (1852), 1 Drew, 353. [650] _Nicols_ v. _Pitman_ (1884), 26 Ch. D., 374. [651] 5 & 6 Vict. c. 45, sec. 15. [652] _Morton_ v. _Copeland_ (1855), 16 C. B., 517. [653] _London Printing_ v. _Cox_ [1891], 3 Ch., 291. [654] _Morton_ v. _Copeland_ (1855), 16 C. B., 517. [655] Ibid. [656] _Cooper_ v. _Stephens_ [1895], 1 Ch., 567; _Allen_ v. _Lyon_(1884), 5 Out. Rep., 615; but see _Eaton_ v. _Lake_ (1888), 20 Q. B. D., 378; _Strahan_ v. _Graham_ (1867), 16 L. T. (N. S.), 87. [657] _Ager_ v. _P. & O._ (1884), 26 Ch. D., 637. [658] Coleridge, J., in _Jefferys_ v. _Boosey_ (1854), 4 H. L. C., at p. 906. [659] But see Willes, J., at pp. 2311 and 2332, and Aston, J., at p. 2346, in _Millar_ v. _Taylor_ (1769), 4 Burr., 2303. [660] _Southey_ v. _Sherwood_ (1817), 2 Mer., 435; _Rundell_ v. _Murray_ (1821), Jac., 311. [661] _Weldon_ v. _Dicks_ (1878), 10 Ch. D., 247. [662] _Hogg_ v. _Scott_ (1874), L. R., 18 Eq., at p. 455; _Morris_ v. _Ashbee_ (1868), L. R., 7 Eq., 34; _Rundell_ v. _Murray_ (1821), Jac., 311; _Saunders_ v. _Smith_ (1838), 3 My. and Cr., 711; _Platt_ v. _Button_ (1815), 19 Ves., 447; _Latour_ v. _Bland_ (1818), 2 Stark, 382; _Pitman_ v. _Hine_ (1884), 1 T. L. R., 39; _Weldon_ v. _Dicks_ (1878), 10 Ch. D., 247. [663] 5 & 6 Vict. c. 45, sec. 5. [664] _Reade_ v. _Conquest_ (1861), 9 C. B. (N. S.), 755; _Tinsley_ v. _Lacy_ (1863), 1 H. and M., 747. [665] _Reade_ v. _Conquest_ (1863), 11 C. B. (N. S.), 479. _Schlesinger_ v. _Turner_ (1890), 63 L. T., 764. [666] _Toole_ v. _Young_ (1874), L. R., 9 Q. B., 523. [667] _Schlesinger_ v. _Bedford_ (1890), 63 L. T., 762. [668] _Warne_ v. _Seebohm_ (1888), 39 Ch. D., 73. [669] See _Clark_ v. _Bishop_ (1872), 25 L. T., 908. [670] _Macklin_ v. _Richardson_ (1770), Amb., 694. [671] See p. 215. [672] (1882), 21 Ch. D., 232. [673] _Macklin_ v. _Richardson_ (1770), Amb., 694. [674] 3 & 4 Will. IV. c. 15, sec. 1; 5 & 6 Vict. c. 45, secs. 15, 2. [675] (1820), 1 Jac. and W., 481. [676] (1864), 17 C. B. (N. S.), 418, at p. 426. [677] (1822) 5 B. and Ald., 657. [678] (1774), 4 Burr., 2408. [679] (1793), 5 T. R., 245; and see _dictum_ of Cockburn, C. J., in _Toole_ v. _Young_ (1874), L. R., 9 Q. B., at p. 527. [680] See _supra_, p. 13. [681] _Chatterton_ v. _Cave_ (1875), L. R., 10 C. P., 572; _Hatton_ v. _Kean_ (1859), 7 C. B. (N. S.), 268. [682] _Reade_ v. _Conquest_ (1861), 9 C. B. (N. S.), 755; _Tinsley_ v. _Lacy_ (1863), 1 H. and M., 747; _Toole_ v. _Young_ (1874), L. R., 9 Q. B., 523; _Warne_ v. _Seebohm_ (1888), 39 Ch. D., 73. [683] (1847), 3 C. B., 871. [684] (1848), 12 Q. B., 217. [685] (1872), 25 L. T., 908. [686] (1883), 11 Q. B. D., 102. [687] (1887), 3 T. L. R., 552. [688] [1895], 2 Q. B., 429. [689] (1848), 12 Q. B., 217. [690] (1874). L. R., 9 Q. B., 523. [691] (1848), 12 Q. B., 217. [692] [1895], 2 Q. B., 429. [693] (1848), 12 Q. B., 217. [694] [1895], 2 Q. B., 429. [695] See cases under the Dramatic Licensing Acts; _Day_ v. _Simpson_ (1865), 18 C. B. (N. S.), 680. [696] See Stephen's "Digest," Art. 13 ("Report Copyright Commission," p. lxxii.). [697] See _supra_, p. 121. [698] The printing and publication of a dramatic piece as a book before public representation does not destroy the performing right as suggested in Stephen's "Digest," Art. 14 ("Report Copyright Commission," p. lxxiii.); _Chappell_ v. _Boosey_(1882), 21 Ch. D., 232. [699] See _Boucicault_ v. _Chatterton_(1876), 5 Ch. D. 267. [700] [1893], 2 Q. B., 308; and see also _Boucicault_ v. _Chatterton_(1876), 5 Ch. D., 267. [701] _i. e._ the statute of Victoria. [702] _i. e._ The International Copyright Acts. [703] (1863), 1 H. and M., 597. [704] (1876), 5 Ch. D., 267. [705] Ibid. [706] _Wood_ v. _Boosey_ (1867), L. R., 2 Q. B., 340. [707] _Leader_ v. _Purday_ (1849), 7 C. B., 4; _Lover_ v. _Davidson_ (1856), 1 C. B. (N. S.), 182. [708] _Russell_ v. _Smith_ (1848), 12 Q. B., 217; in _Hatton_ v. _Kean_(1859), 7 C. B. (N. S.), at p. 273, the plaintiff began to argue the question whether a non-dramatic musical composition was within the Act; but counsel for the defendant intimated that he would not rely on that point. [709] _Wall_ v. _Taylor_ (1883), 11 Q. B. D., 102. [710] See A. L. Smith, L. J., in _Fuller_ v. _Blackpool Winter Gardens_ [1895], 2 Q. B., 429. [711] Ibid. [712] Ibid. [713] Ibid. [714] Note that the form in the schedule provides for "name of publisher and place of publication." [715] _i. e._ of the copyright and performing right if in the same hands. If in different hands the respective proprietors should be specified. [716] _Russell_ v. _Smith_ (1848), 12 Q. B., 217; _Lacy_ v. _Rhys_ (1864), 33 L. J., Q. B., 157; _Clark_ v. _Bishop_ (1872), 25 L. T., 908. [717] 5 & 6 Vict. c. 45, sec. 11. [718] Ibid. [719] 5 & 6 Vict. c. 45, sec. 12. [720] 5 & 6 Vict. c. 45, sec. 13. [721] 5 & 6 Vict. c. 45, sec. 20. [722] (1848), 12 Q. B., 217. [723] (1872), 25 L. T., 908. [724] (1864), 33 L. J., Q. B., 157. [725] See _Fairlie_ v. _Boosey_ (1879), 4 A. C., 711. [726] _Wood_ v. _Boosey_ (1868), L. R., 3 Q. B., 223. [727] _Shepherd_ v. _Conquest_ (1856), 17 C. B., 427; see _Cumberland_ v. _Copeland_ (1861), 7 H. and N., 118; (1862), 1 H. and C., 194. [728] 5 & 6 Vict. c. 45, secs. 22, 20, 13. [729] _Supra_, p. 77. [730] _Shepherd_ v. _Conquest_ (1856), 17 C. B., 427; _Eaton_ v. _Lake_ (1888), 20 Q. B. D., 378. [731] _Marsh_ v. _Conquest_ (1864), 17 C. B. (N. S.), 418. [732] 5 & 6 Vict. c. 45, sec. 22. [733] 3 & 4 Will. IV. c. 15, sec. 2; _Power_ v. _Walker_ (1814), 3 M. and S., 7; _Leyland_ v. _Stewart_ (1876), 4 Ch. D., 419. [734] _Marsh_ v. _Conquest_ (1864), 17 C. B. (N. S.), 418. [735] _Marsh_ v. _Conquest_ (1864), 17 C. B. (M. S.), 418; _Lacy_ v. _Rhys_ (1864), 4 B. and S., 873. [736] Ibid. [737] _Ex parte Hutchins_ (1879), L. R., 4 Q. B. D., 483. [738] L. R., 4 Q. B. D., 483. [739] (1834), 1 Ad. and E., 580. [740] See p. 128. [741] See p. 74. [742] _Holt_ v. _Woods_ (1896), 17 New South Wales R., Eq., 36; and see p. 81. [743] (1847), 3 C. B., 871. [744] (1848), 12 Q. B., 217. [745] See _Shelly_ v. _Bethell_ (1883), 12 Q. B. D., 11. [746] (1883), 11 Q. B. D., at p. 108. [747] (1884), 13 Q. B. D., 843. [748] And see _Novello_ v. _Sudlow_ (1852), 12 C. B., 177. [749] Denman, C. J., in _Russell_ v. _Smith_ (1848), 12 Q. B., 217, at p. 236. [750] (1878), 3 A. C., 483. [751] (1837), 8 C. and P., 68. [752] (1837), 4 Bing., N. C, 17. [753] (1889), 5 T. L. R., 330. [754] _Reade_ v. _Conquest_ (1862), 11 C. B. (N. S.), 479; _Schlesinger_ v. _Turner_ (1890), 63 L. T. (N. S.), 764. [755] _Reichardt_ v. _Sapte_ [1893], 2 Q. B., 308; and see _Walter_ v. _Lane_ [1900], A. C., 539. [756] _Supra_, p. 104. [757] (1878), 3 A. C., at p. 501. [758] (1831), 5 C. and P., 33. [759] (1849), 8 C. B., 836. [760] (1848), 12 Q. B., 217. [761] (1863), 3 B. and S., 556; see this case and _Russell_ v. _Briant_, _supra_, approved by Byrne, J., in _Kelly's Directories_ v. _Gavin & Lloyds_ [1901], 1 Ch., 374: [762] (1864), 17 C. B. (N. S.), 418. [763] (1886), 2 T. L. R., 685; but see _Cole_ v. _Gear_(1888), 4 T. L. R., 246. [764] (1831), 5 C. and P., 33. [765] (1893), 9 T. L. R., 548. [766] _Lee_ v. _Simpson_(1847), 3 C. B., 871, at p. 883. [767] _Duck_ v. _Mayen_(1892), 8 T. L. R., 339. [768] 3 & 4 Will. IV. c. 15, sec. 2. [769] _Supra_, p. 118. [770] _Roberts_ v. _Bignell_(1887), 3 T. L. R., 552; _Eaton_ v. _Lake_(1888), 20 Q. B. D., 378. [771] _Morton_ v. _Copeland_(1855), 16 C. B., 517. [772] Ibid. [773] _Powell_ v. _Head_(1879), 12 Ch. D., 686. [774] (1835), 1 Y. and C. Ex., 288. [775] (1883), 11 Q. B. D., 102. [776] 51 & 52 Vict. c. 17, sec. 3. Wright, J., has held that a knowledge that the music contained the statutory notice reserving performing rights is not of itself sufficient evidence that the proprietor knew the performance to be unauthorised. _Moul_ v. _Coronet_, Nov. 30, 1901. [777] Not a true "penalty," but in the nature of liquidated damages, _Adams_ v. _Batley_ (1887), 18 Q. B. D., 625; _Saunders_ v. _Will_ [1892], 2 Q. B., 18; see _Fitzbull_ v. _Brooke_ (1844), 2 D. and L., 477. [778] See p. 86. [779] 3 & 4 Will. IV. c. 15, sec. 2, provided "double costs of suit." This was amended by 5 & 6 Vict. c. 97, sec. 2, to a "full and reasonable indemnity as to all costs, charges, and expenses." This probably means nothing more than ordinary party and party costs, _Reeve_ v. _Gibson_ [1891], 1 Q. B., 652; _Avery_ v. _Wood_ [1891], 3 Ch., 115; but it would seem that as the costs are given by statute they are not in the discretion of the Court, and must be awarded to a successful plaintiff, _Reeve_ v. _Gibson_ [1891], 1 Q. B., 652; _Hasker_ v. _Wood_ [1885], 54 L. J. Q. B., 419; Judicature Act, 1890, sec. 5. Sec. 2 of 5 & 6 Vict. c. 97 is repealed by the Public Authorities Protection Act in so far as that Act applies. [780] 3 & 4 Will. IV. c. 15, sec. 3. [781] 51 & 52 Vict. c. 17, sec. 1; and see p. 86 as to mode of assessing. [782] See p. 86. [783] 51 & 52 Vict. c. 17, sec. 2; 3 & 4 Will. IV. c. 15, sec. 2; 5 & 6 Vict. c. 96, sec. 2. [784] 3 & 4 Will. IV. c. 15, sec. 3. [785] See _infra_. [786] See p. 150. This is doubtful. [787] See p. 150. [788] See p. 151. [789] See p. 152. [790] See p. 152. [791] See chapter on Colonial Copyright, p. 186. [792] 2 Atk., 93. [793] Amb., 264. [794] 15 & 16 Vict. c. 12, sec. 14. [795] _Per_ Best, C. J., in _Newton_ v. _Cowie_ (1827), 4 Bing., at p. 246. [796] 5 & 6 Vict. c. 45, sec. 1. [797] _Stannard_ v. _Lee_ (1871), L. R., 6 Ch., 346; 24 L. T. (N. S.), 459. [798] 24 L. T. (N. S.), at p. 460. [799] 19 W. R., at p. 617. [800] (1871), 24 L. T. (N. S.), 570. [801] (1871), L. R., 6 Ch., 346. [802] _Bogue_ v. _Houlston_ (1852), 5 De G. and Sm., 267; _Maple_ v. _Junior Army and Navy Stores_ (1882), 21 Ch. D., 369; _Comyns_ v. _Hyde_ (1895), 43 W. R., 266; _Hildesheimer_ v. _Dunn_ (1891), 64 L. T. (N. S.), 452. [803] _Page_ v. _Townsend_ (1832), 5 Sim., 395. [804] Ibid. [805] 49 & 50 Vict. c. 33, sec. 8 (1); and see 7 & 8 Vict. c. 12, sec. 19. [806] 7 Geo. II. c. 38. [807] See p. 36. [808] See p. 169. [809] 6 & 7 Will. IV. c. 59, sec. 2; _Page_ v. _Townsend_ (1832), 5 Sim., 395. [810] 7 Vict. c. 12, sec. 19; 49 & 50 Vict. c. 33, sec. 8 (1). [811] 8 Geo. II. c. 13. [812] _Newton_ v. _Cowie_ (1827), 4 Bing., 234; _Brooks_ v. _Cock_ (1835), 3 Ad. and E., 138. [813] _Thompson_ v. _Symonds_ (1792), 5 T. R., 41; _Harrison_ v. _Hogg_ (1794), 2 Ves., 322; _Newton_ v. _Cowie_ (1827), 4 Bing., 234; _Brooks_ v. _Cock_ (1835), 3 Ad. and E., 138; _Mackmurdo_ v. _Smith_ (1798), 7 T. R., 518. [814] _Blackwell_ v. _Harper_ (1740), 2 Atk., 93; and see _Roworth_ v. _Wilkes_ (1807), 1 Camp., 94. [815] (1792), 5 T. R., 41. [816] _Blackwell_ v. _Harper_ (1740), 2 Atk., 93; _Graves_ v. _Ashford_ (1867), L. R., 2 C. P., 410. [817] _Newton_ v. _Cowie_ (1827), 4 Bing., 234; _Thompson_ v. _Symonds_ (1792), 5 T. R., 41. [818] Ibid. [819] _Rock_ v. _Lazarus_ (1872), L. R., 15 Eq., 104. [820] _Graves_ v. _Ashford_ (1867), L. R., 2 C. P., 410. [821] _Baschet_ v. _London Illustrated Standard_ [1900], 1 Ch., 73; _Fores_ v. _Johnes_ (1802), 4 Esp., 97. [822] 7 Geo. III. c. 38, sec. 7. [823] _Donaldson_ v. _Beckett_ (1774), 2 Bro. P. C., 129. [824] _Prince Albert_ v. _Strange_ (1849), 1 M'N. and G., 25; _West_ v. _Francis_ (1822), 5 B. and Ald., 737. [825] 8 Geo. II. c. 13; 7 Geo. III. c. 38. [826] _Stannard_ v. _Harrison_ (1871), 24 L. T. (N. S.), 570. [827] See as to books, p. 73. [828] _Thompson_ v. _Symonds_ (1792), 5 T. R., 41. [829] 8 Geo. II. c. 13; 17 Geo. III. c. 57. [830] _Thompson_ v. _Symonds_ (1792), 5 T. R., 41. [831] 8 Geo. II. c. 13; 17 Geo. III. c. 57. [832] See Assignment of Books, p. 77. [833] Cf. _Cooper_ v. _Stephens_ [1895], 1 Ch., 567, a decision under the Copyright Act, 1842. [834] _Marshall_ v. _Petty_ (1900), 17 T. L. R., 501; 8 Geo. II. c. 13, sec. 2. [835] See as to books, p. 74. [836] 8 Geo. II. c. 13; 17 Geo. III. c. 57. The above summary is the result of a careful comparison of these two Acts. As Sir James Stephen says in his "Digest": "They are inexpressibly puzzling and very cumbrous.... The sense escapes in a cloud of words." It is submitted, however, that there are more important distinctions between the two Acts than those noticed in the "Digest," and the above is an attempt to make them as clear as possible. [837] 8 Geo. II. c. 13. [838] Ibid. [839] 17 Geo. III. c. 57. [840] 25 & 26 Vict. c. 68, secs. 8 and 9. [841] Ibid. [842] 17 Geo. III. c. 57. [843] 17 Geo. III. c. 57; but see _Martin_ v. _Wright_ (1833), 6 Sim., 297, contra. [844] 17 Geo. III. c. 57. [845] 25 & 26 Vict. c. 68, secs. 8 and 9. [846] Ibid. [847] 25 & 26 Vict. c. 68, sec. 8. [848] _Gambart_ v. _Sumner_ (1859), 8 W. R., 27; 5 H. and N., 5; _West_ v. _Francis_ (1822), 5 B. and Ald., 737. [849] 8 Geo. II. c. 13. [850] 7 Geo. III. c. 38. [851] _Graves_ v. _Mercer_ (1868), 16 W. R., 790. [852] 8 Geo. II. c. 13; 7 Geo. III. c. 38. [853] _Avery_ v. _Wood_ [1891], 3 Ch., 115. [854] _Hasker_ v. _Wood_ (1885), 54 L. J., Q. B., 419; _Reeve_ v. _Gibson_ [1891], 1 Q. B., 652. [855] But see _Martin_ v. _Wright_ (1833), 6 Sim., 297. [856] 8 Geo. II. c. 13. [857] 8 Geo. II. c. 13; 17 Geo. III. c. 57. [858] _West_ v. _Francis_ (1822), 5 B. and Ald., 737; _Moore_ v. _Clarke_ (1842), 9 M. and W., 692. [859] _West_ v. _Francis_ (1822), 5 B. and Ald., 737. [860] _Graves_ v. _Ashford_ (1867), L. R., 2 C. P., 410; _Gambart_ v. _Ball_ (1863), 14 C. B. (N. S.), 306. [861] _Dicks_ v. _Brooks_ (1880), 15 Ch. D., 22; _Gambart_ v. _Ball_ (1863), 14 C. B. (N. S.), 306. [862] _Newton_ v. _Cowie_ (1827), 4 Bing. at p. 246; _De Berenger_ v. _Wheble_ (1819), 2 Stark., 548. [863] _Dicks_ v. _Brooks_ (1880), 15 Ch. D., 22; _Gambart_ v. _Ball_ (1863), 14 C. B. (N. S.), 306. [864] (1807), 1 Camp., at p. 98. [865] (1833), 6 Sim., 297. [866] No such statement could now be accepted as sound. See p. 112. [867] (1880), 15 Ch. D., 22. [868] 15 Ch. D., at p. 34. [869] 15 Ch. D., at p. 37. [870] See as to literary copyright, p. 112. [871] _Murray_ v. _Heath_ (1831), 1 B. and Ad., 804. [872] 8 Geo. II. c. 13; 17 Geo. III. c. 57. [873] 8 Geo. II. c. 13. [874] Cf. _Cooper_ v. _Stephens_ [1895], 1 Ch., 567, which is under 5 & 6 Vict. c. 45, but on a claim for damages an injunction only would seem to be analogous; _Marshall_ v. _Petty_ (1900), 17 T. L. R., 501. [875] See _infra_. [876] See p. 162. [877] See p. 162. This is doubtful. [878] See p. 162. [879] See p. 163. [880] See p. 163. [881] See chapter on Colonial Copyright, p. 186. [882] 54 Geo. III. c. 56, sec. 1. [883] _Caproni_ v. _Alberti_ (1892), 40 W. R., 235. [884] _Britain_ v. _Hanks_, Wright, J., April 15, 1902. [885] 54 Geo. III. c. 56, sec. 1. [886] 49 & 50 Vict. c. 33, sec. 8 (1). [887] 7 & 8 Vict. c. 12, sec. 19. [888] 10 Ir. R. Ch., at p. 516, per Brady, L. Ch. I. [889] _Turner_ v. _Robinson_ (1860), 10 Ir. R. Ch., 121, 510. [890] See _supra_, p. 42. [891] 54 Geo. III. c. 56. [892] 5 & 6 Vict. c. 45. [893] 54 Geo. III. c. 56, sec. 1. [894] As to work done by partner of a firm, see _Britain_ v. _Hanks_, April 15, 1902. [895] See p. 151. [896] 38 Geo. III. c. 71. [897] Viz., 38 Geo. III. c. 71, and 54 Geo. III. c. 56. [898] _Britain_ v. _Hanks_, April 15, 1902. [899] See p. 46. [900] See p. 174. [901] See p. 152. [902] 54 Geo. III. c. 56, secs. 1 and 2. [903] Ibid. [904] 54 Geo. III. c. 56, sec. 6; cf. _Carnan_ v. _Bowles_ (1786), 2 Bro. C. C., 8o; _Rundell_ v. _Murray_ (1821), Jac., 311. [905] 54 Geo. III. c. 56, sec. 4; cf. 8 Anne c. 19, sec. 1, and _Davidson_ v. _Bohn_ (1848), 6 C. B., 456; _Power_ v. _Walker_ (1814), 3 M. and S., 7; _Jefferys_ v. _Boosey_ (1854), 4 H. L. Cas., 815. [906] 54 Geo. III. c. 56, sec. 4. [907] Ibid. [908] The Sculpture Act gives "double costs," but 5 & 6 Vict. c. 97, sec. 2, substitutes "a full and reasonable indemnity." See p. 144, _note_ 4. This probably means costs in the ordinary sense; but the plaintiff is entitled to them as of right and not as a matter of discretion under the Rules of the Supreme Court. [909] 54 Geo. III. c. 56, sec. 3. [910] See _infra_. [911] See p. 168. [912] See p. 170. [913] See p. 171. [914] See p. 174. [915] See p. 174. [916] See chapter on Colonial Copyright, p. 186. [917] 25 & 26 Vict. c. 68, sec. 1. [918] _Hanfstaengl_ v. _Empire Palace_ [1894], 2 Ch., 1. [919] _Graves'_ case (1869), L. R., 4 Q. B., 715. [920] See the cases as to new editions of books. [921] _Kenrick_ v. _Lawrence_ (1890), 25 Q. B. D., 99. [922] _Farina_ v. _Silverlock_ (1858), 4 K. and J., 650. This case is hardly an authority, as it was decided when published paintings and drawings were unprotected; but it is submitted that even under the Act of 1862 a label of this kind would not be protected. [923] (1860), 10 Ir. Ch., 121, 510. [924] (1860), 10 Ir. Ch., 121. [925] 25 & 26 Vict. c. 68, sec. 1; see _Geissendorfer_ v. _Mendelssohn_ (1896), 13 T. L. R., 91. [926] See _Nottage_ v. _Jackson_ (1883), 11 Q. B. D., 627. [927] _Petty_ v. _Taylor_ [1897], 1 Ch., 465. [928] Ibid. [929] 25 & 26 Vict. c. 68, sec. 4. [930] _Tuck & Sons_ v. _Priester_ (1887), 19 Q. B. D., 629; _Pollard_ v. _Photo. Co._ (1888), 40 Ch. D., 345. [931] _Turner_ v. _Robinson_ (1860), 10 Ir. Ch., 121, 510; _Prince Albert_ v. _Strange_ (1849), 1 M'N. and G., at p. 42; _West_ v. _Francis_ (1822), 5 B. and Ald., 737. [932] _Tuck & Sons_ v. _Priester_ (1887), 19 Q. B. D., 629; _Tuck_ v. _Continental_ (1887), 3 T. L. R., 826. [933] Ibid. [934] _London Printing_ v. _Cox_ [1891], 3 Ch., 291; _Dupuy_ v. _Dilkes_ (1879), W. N., 145; 48 L. J. Ch., 682. [935] _London Printing_ v. _Cox_ [1891], 3 Ch., 291. [936] _Dupuy_ v. _Dilkes_ (1879), W. N., 145; 48 L. J. Ch., 682. [937] _Graves'_ case (1869), L. R., 4 Q. B., 715. [938] _Ex parte Walker_ (1869), 17 W. R., 1018; 10 B. and S., 680. [939] 25 & 26 Vict. c. 68, sec. 4. [940] _Ex parte Beal_ (1868), L. R., 3 Q. B., 387; 9 B. and G., 395. [941] Blackburn, J., 9 B. and S., at p. 398. The headnote in _ex parte Walker_ (1869), 10 B. and S., 680, "That the description 'A Piper and a Pair of Nut-crackers' was sufficient for the purpose of sec. 6," is erroneous, the point being left undecided. [942] _Baschet_ v. _London Illustrated Standard_ [1900], 1 Ch., 73; _Fores_ v. _Johnes_ (1802), 4 Esp., 97; see _Du Bost_ v. _Beresford_ (1810), 2 Camp., 511. [943] 25 & 26 Vict. c. 68, sec. 1. [944] Ibid. [945] 7 Vict. c. 12, sec. 19. [946] 25 & 26 Vict. c. 68, sec. 1. [947] _Nottage_ v. _Jackson_ (1883), 11 Q. B. D., 627; _Wooderson_ v. _Tuck_ (1887), 4. T. L. R., 57; _Melville_ v. _Mirror of Life_ [1895], 2 Ch., 531; _Kenrick_ v. _Lawrence_ [1890], 25 Q. B. D., 99. [948] _Nottage_ v. _Jackson_ (1883), 11 Q. B. D., 627; _Kenrick_ v. _Lawrence_ [1890], 25 Q. B. D., 99. [949] 25 & 26 Vict. c. 68, sec. 1; _Kenrick_ v. _Lawrence_ (1890), 25 Q. B. D., 99; _Levi_ v. _Champion_ (1887), 3 T. L. R., 286. [950] _Wooderson_ v. _Tuck_ (1887), 4 T. L. R., 57. [951] _Melville_ v. _Mirror of Life_ [1895], 2 Ch., 531; _Ellis_ v. _Marshall_ (1895), 11 T. L. R., 522; _Ellis_ v. _Ogden_(1894), 11 T. L. R., 50. [952] _Melville_ v. _Mirror of Life_ [1895] 2 Ch., 531; _Ellis_ v. _Marshall_ (1895), 11 T. L. R., 522. [953] _Ellis_ v. _Ogden_ (1894), 11 T. L. R., 50. [954] _Melville_ v. _Mirror of Life_ [1895], 2 Ch., 531; _Ellis_ v. _Ogden_ (1894), 11 T. L. R., 50. [955] _Petty_ v. _Taylor_ [1897], 1 Ch., 465. [956] 25 & 26 Vict. c. 68, sec. 3. [957] _Troitzsch_ v. _Rees_ (1887), 3 T. L. R., 773; and see _Graves'_ case (1869), L. R., 4 Q. B., 715. [958] See p. 172 as to registration. [959] _London Printing and Publishing Alliance_ v. _Cox_ [1891], 3 Ch., 291. [960] See assignment of literary copyright, p. 78. [961] See as to partial assignment of literary copyright, p. 80. [962] (1880), 13 Ch. D., 872. [963] _Tuck_ v. _Canton_ (1882), 51 L. J., Q. B., 363. [964] 25 & 26 Vict. c. 68, sec. 2. [965] 25 & 26 Vict. c. 68, sec. 6. [966] 25 & 26 Vict. c. 68, secs. 6, 8, 9, 11. [967] 25 & 26 Vict. c. 68, sec. 6. These penalties are not a civil debt, but in the nature of a fine for a criminal offence; _ex parte Graves_ (1868), L. R., 3 Ch., 642. [968] 25 & 26 Vict. c. 68, sec. 6. [969] 25 & 26 Vict. c. 68, sec. 9. [970] 25 & 26 Vict. c. 68, sec. 11. [971] 25 & 26 Vict. c. 68, sec. 9. [972] 25 & 26 Vict. c. 68, sec. 8. [973] 25 & 26 Vict. c. 68, sec. 11. [974] 25 & 26 Vict. c. 68, sec. 9. [975] Ibid. [976] 25 & 26 Vict. c. 68, sec. 10. [977] 25 & 26 Vict. c. 68, sec. 11. [978] (1898), 14 T. L. R. [979] [1900], 1 Ch., 73. [980] _Tuck_ v. _Priester_ (1887), 14 Q. B. D., 629. [981] Ibid. [982] Ibid. [983] _Ex parte Beal_ (1868), L. R., 3 Q. B., 387; _Hildesheimer_ v. _Faulkner_ [1901], 2 Ch., 552. [984] (1868), 9 B. and S., 395. [985] 9 B. and S., at p. 402. [986] _Ellis_ v. _Marshall_ (1895),64 L. J., Q. B., 757; _Baschet_ v. _London Illustrated_ [1900], 1 Ch., 73; _Nicholls_ v. _Parker_ (1901), 17 T. L. R., 482; _Green_ v. _Irish Independent_ [1899], 1 I. R., 386. [987] [1901], 2 Ch., 552. [988] 25 & 26 Vict. c. 68, sec. 6. [989] _Tuck_ v. _Priester_ (1887), 19 Q. B. D., 629; _Murray_ v. _Heath_ (1831), 1 B. and Ad., 804; _Mayall_ v. _Higbey_ (1862), 1 H. and C, 148. [990] _Pollard_ v. _Photo. Co._ (1888), 4 Ch. D., 345. [991] 25 & 26 Vict. c. 68, sec. 7. [992] This offence does not constitute forgery, because a forgery must be a document, and a picture is not a document; _Reg_ v. _Closs_ (1857), 6 W. R., 109. [993] 25 & 26 Vict. c. 68, sec. 7. [994] 16 Jac. 1., c. 16, sec. 3. [995] _Lucas_ v. _Williams_ [1892], 2 Q. B., 113. [996] 25 & 26 Vict. c. 68, sec. 2. [997] _Ex parte Beal_ (1868), 3 Q. B., 387. [998] _Bolton_ v. _Aldin_ (1895), 65 L. J., Q. B., 120. [999] But see _Hanfstaengl_ v. _Baines_ [1895], A. C., 20; _Hanfstaengl_ v. _Empire Palace_ [1894], 2 Ch., 1; [1894], 3 Ch., 109. [1000] _Graves'_ case (1869), L. R., 4 Q. B., 715; cf. the case of the photograph of an engraving, _Gambart_ v. _Ball_ (1863), 14 C. B. (N. S.), 306; _Graves_ v. _Ashford_ (1867), L. R., 2 C. P., 410. [1001] [1894], 2 Ch. 1. [1002] [1895], A. C., 20. [1003] (1896), 12 T. L. R., 491. [1004] (1842), 9 M. & W., 692. [1005] (1897), 45 W. R., 476; see also _West_ v. _Francis_ (1822), 5 B. and Ald., 737; _London Stereo_ v. _Kelly_ (1888), 5 T. L. R., 169; _Bolton_ v. _London Exhibitions_ (1898), 14 T. L. R., 550. [1006] _Hanfstaengl_ v. _Baines_ [1895], A. C., 20; _ex parte Beal_ (1868), L. R., 3 Q. B., 387; _Turner_ v. _Robinson_ (1860), 10 Ir. Ch., 121, 510. [1007] _Ex parte Beal_ (1868), L. R., 3 Q. B., 387. [1008] _Brooks_ v. _Religious Tract Society_ (1897), 45 W. R., 476; _West_ v. _Francis_ (1822), 5 B. and Ald., 737. [1009] _Hanfstaengl_ v. _Empire Palace_ [1894], 3 Ch., 109. [1010] 25 & 26 Vict., sec. 3. [1011] 25 & 26 Vict., sec. 6. [1012] _London Printing and Pub. All._ v. _Cox_ [1891], 3 Ch., 291. [1013] _Nicholls_ v. _Parker_ (1901), 17 T. L. R., 482; and see _Guggenheim_ v. _Leng_ (1896), 12 T. L. R., 491. [1014] 49 & 50 Vict. c. 33, sec. 8 (4). [1015] The following colonies have local legislation: India, Ceylon, Canada, the Australian Colonies, New Zealand, Cape of Good Hope, Natal, Hong Kong, Tasmania, Newfoundland. [1016] Australian Colonies, Tasmania, Cape of Good Hope, Natal, New Zealand, Hong Kong, Ceylon. The period of protection in foreign telegrams varies from 24 to 120 hours in the respective colonies. [1017] 10 & 11 Vict. c. 95, usually known as the Foreign Reprints Act. [1018] The following are the colonies now under the provisions of the Foreign Reprints Act, 1847. The dates are of the respective Orders in Council. Bermuda, February 13, 1849; Bahamas, May 21, 1849; Newfoundland, July 30, 1849; St. Christopher, November 6, 1849; Antigua, June 19, 1850; St. Lucia, November 13, 1850; British Guiana, October 23, 1851; Mauritius, April 1, 1853; Grenada, December 29, 1853; Nevis, March 10, 1855; Cape of Good Hope, March 10, 1855; Natal, May 16, 1857; Jamaica, April 23, 1859; Trinidad, March 17, 1875; Barbados, August 15, 1890; St. Vincent, August 26, 1881. [1019] 49 & 50 Vict. c. 33, sec. 8. [1020] The following colonies have provided a system of registration: Canada, New South Wales, Victoria, Western Australia, Queensland, South Australia, Natal, Cape of Good Hope. [1021] Printed as a schedule to 38 & 39 Vict. c. 53. [1022] 39 & 40 Vict. c. 36, sec. 152. [1023] 38 & 39 Vict. c. 53. [1024] 10 & 11 Vict. c. 95. [1025] 57 & 58 Vict. (Canada), c. 33. [1026] 5 & 6 Vict. c. 45, sec. 17. [1027] _Morang_ v. _Publishers_ (1900), 32 Ont. Rep., 393. [1028] 63 & 64 Vict. (Canada), c. 25, known as the Fisher Act. [1029] (1876), 1 Tupp. App. Rep., 436. [1030] 5 & 6 Vict. c. 45, sec. 17; 39 & 40 Vict. c. 36, sec. 152. [1031] 38 & 39 Vict. c. 53, sec. 4. [1032] The type need not be set in Canada; _Frowde_ v. _Parish_ (1896), 27 Ont. Rep., 526. [1033] 38 & 39 Vict. c. 53, schedule, sec. 15. [1034] _Anglo-Canadian_ v. _Suckling_ (1889), 17 Ont. Rep., 239. [1035] 63 & 64 Vict. (Canada), c. 25. [1036] 5 & 6 Vict. c. 45, sec. 17. [1037] See p. 146, _supra_. [1038] See p. 167, _supra_. [1039] See p. 161, _supra_. [1040] _Graves_ v. _Gorrie_ (1900), 32 Ont. Rep., 266. [1041] See p. 194, _infra_. [1042] _Morocco Bound Syndicate_ v. _Harris_ [1895], 1 Ch., 534. [1043] 7 & 8 Vict. c. 12, sec. 19; _Boucicault_ v. _Delafield_ (1863), 1 H. and M., 597. [1044] 49 & 50 Vict. c. 33, sec. 11. [1045] See p. 129. [1046] Berne Convention, Arts. 2, 14; 49 & 50 Vict. c. 33, sec. 2 (3); Order in Council, Nov. 28, 1887, sec. 3. [1047] _Hanfstaengl_ v. _Empire Palace_ [1894], 3 Ch., 109. [1048] Additional Act of Paris, Art. I. 1; Berne Convention, Art. 13. [1049] _Hanfstaengl_ v. _Empire Palace_, _ubi supra._ [1050] Additional Act of Paris, Art. I. 1. [1051] Berne Convention, Art. 13. [1052] Additional Act of Paris, I. 1. [1053] Berne Convention, Art. 6; 49 & 50 Vict. c. 33, sec. 5 (3). [1054] Additional Act of Paris, II. 1. [1055] _i. e._ works delineating the steps in a dance or ballet. Berne Convention, Final Protocol (2). [1056] 49 & 50 Vict. c. 33, sec. 6. [1057] See also Berne Convention, Final Protocol (4); Order in Council, Nov. 28, 1887, sec. 3; Additional Act of Paris, Art. II. 2. [1058] _Lauri_ v. _Renad_ [1892], 3 Ch., 402. [1059] _Hanfstaengl_ v. _Holloway_ [1893], 2 Q. B., 1. [1060] [1892], 3 Ch., 402. [1061] Berne Convention, Art. 2; 49 & 50 Vict. c. 33, sec. 2 (3). [1062] 7 & 8 Vict. c. 12, sec. 6; 49 & 50 Vict. c. 33, sec. 4; Order in Council, Nov. 28, 1887; _Hanfstaengl_ v. _American Tobacco Co._ [1895], 1 Q. B., 347. [1063] Berne Convention, Art. 9. [1064] 8 Geo. II. c. 13. [1065] 54 Geo. III. c. 56. [1066] 7 & 8 Vict. c. 12, sec. 6. [1067] 49 & 50 Vict. c. 33, sec. 4. [1068] November 28, 1887. [1069] [1891], 2 Ch., 371. [1070] 7 & 8 Vict. c. 12, sec. 6. [1071] Berne Convention, Art. 1. [1072] 7 & 8 Vict. c. 12, secs. 3, 4, 5. [1073] [1893], 2 Q. B., 1. [1074] [1895], 1 Q. B., 347. [1075] [1891], 2 Ch., 371. [1076] [1895], 1 Q. B., 347. [1077] [1891], 2 Ch., 371. [1078] (1854), 10 Ex., 203; and see _Cassell_ v. _Stiff_ (1856), 2 K. and J., 279. [1079] Scrutton on "Copyright," 3rd ed., p. 213. [1080] Additional Act of Paris, 1896, Art. II. [1081] Berne Convention, Art. 11. [1082] Ibid. [1083] 49 & 50 Vict. sec. 7. [1084] Additional Act of Paris, Art. I. 1; Order in Council, November 28, 1887, sec. 3; 7 & 8 Vict. c. 12, secs, 2, 3, 4; 49 & 50 Vict. c. 33, sec. 9. [1085] Berne Convention, Art. 2; Order in Council, November 28, 1887, sec. 3; 49 & 50 Vict. c. 33, sec. 2 (3). [1086] See also Revenue Act, 1887. [1087] _Pitt Pitts_ v. _George_ [1896], 2 Ch., 866. [1088] [1900], 1 Ch., 73. [1089] 49 & 50 Vict. c. 33, sec. 9. [1090] See _Cassell_ v. _Stiff_ (1856), 2 K. and J., 279. [1091] _Per_ A. L. Smith, J., in _Moul_ v. _Groenings_ [1891], 2 Q. B., 443. [1092] _Per_ A. L. Smith, J., in _Moul_ v. _Groenings_ [1891], 2 Q. B., 443. [1093] _Schauer_ v. _Field_ [1893], 1 Ch., 35; _Hanfstaengl_ v. _Holloway_ [1893], 2 Q. B., 1. [1094] _Schauer_ v. _Field_ [1893], 1 Ch., 35. [1095] _Per_ A. L. Smith, J., in _Moul_ v. _Groenings_ [1891], 2 Q. B., 443; but see _Hanfstaengl_ v. _Holloway_ [1893], 2 Q. B., 1. [1096] 49 & 50 Vict. c. 33, sec. 5 (1); Additional Act of Paris, Art. I. 3. [1097] Berne Convention, Art. 5; _cf._ 49 & 50 Vict. c. 33, sec. 2. [1098] Berne Convention, Art. 5. [1099] _Wood_ v. _Chart_ (1870), 10 Eq., 193; _Lauri_ v. _Renad_ [1892], 3 Ch., Kekewich, J., at p. 414. [1100] _Per_ Sir W. M. James, V. C., in _Wood_ v. _Chart_. [1101] 15 Vict. c. 12, sec. 7; 49 & 50 Vict. c. 33, sec. 5 (4); Additional Act of Paris, Art. I. 4. [1102] Additional Act of Paris, II. 1. [1103] Berne Convention, Art. 9. [1104] 15 Vict. c. 12, sec. 6; 38 and 39 Vict. c. 12, sec. 1; Order in Council, Nov. 28, 1887, sec. 6. [1105] _Donaldson_ v. _Becket_ (1774), 2 Bro. P. C., 129; and see _Millar_ v. _Taylor_ (1769), 4 Burr., 2303; _Tonson_ v. _Collins_ (1760), 1 W. Black., 301, 321. [1106] See _Cox_ v. _Land and Water_ (1869), L. R., 9 Eq., 324; _Reade_ v. _Conquest_ (1861), 9 C. B. (N. S.), 755; _Jefferys_ v. _Boosey_ (1854), 4 H. L. C., 815. [1107] _Beckford_ v. _Hood_ (1798), 7 T. R., 620. [1108] _Platt_ v. _Walter_ (1867), 17 L. T. (N. S.), 157. [1109] See cases cited in arguments in _Tonson_ v. _Collins_ (1760), 1 W. Black., 301, 321; _Donaldson_ v. _Beckett_ (1774), 2 Bro. P. C., p. 138; _Millar_ v. _Taylor_ (1769), 4 Burr., 2303; Lord St. Leonards in _Jefferys_ v. _Boosey_ (1854), 4 H. L. C., at p. 979. [1110] _Maxwell_ v. _Hogg_ (1867), L. R., 2 Ch., 307. [1111] _Kelly_ v. _Hutton_ (1868), L. R., 3 Ch., 703. [1112] _Dicks_ v. _Yates_ (1881), 18 Ch. D., 76. [1113] _Licensed Victuallers_ v. _Bingham_ (1888), 38 Ch. D., 139. [1114] _Kelly_ v. _Byles_ (1879), 40 L. T. (N. S.), 623. [1115] _Mack_ v. _Petter_ (1872), L. R., 14 Eq., 431. [1116] _Weldon_ v. _Dicks_ (1878), 10 Ch. D., 247. [1117] _Dicks_ v. _Yates_ (1881), 18 Ch. D., 76. [1118] 18 Ch. D., at p. 89. [1119] _Borthwick_ v. _The Evening Post_ (1888), 37 Ch. D., 449; _Bradbury_ v. _Beeton_ (1869), 39 L. J. Ch., 57; _Clement_ v. _Maddick_ (1859), 1 Giff., 98. [1120] _Kelly_ v. _Hutton_ (1868), L. R., 3 Ch., 703; _Ward_ v. _Beeton_ (1874), L. R., 19 Eq., 207. [1121] _Bradbury_ v. _Dickens_ (1859), 27 Beav., 53. [1122] (1885), 54 L. J. Ch., 1059. [1123] _Maxwell_ v. _Hogg_ (1867), L. R., 2 Ch., 307; _Licensed Victuallers_ v. _Bingham_ (1888), 38 Ch. D.; _Correspondent News_ v. _Saunders_ (1865), 11 Jur. (N. S.), 540. [1124] _Maxwell_ v. _Hogg_ (1867), L. R., 2 Ch., 307. [1125] _Schove_ v. _Schmincké_ (1886), 33 Ch. D., 546. [1126] _Talbot_ v. _Judges_ (1887), 3 T. L. R., 398. [1127] _Maxwell_ v. _Hogg_ (1867), L. R., 2 Ch., 307. [1128] _Prowett_ v. _Mortimer_ (1856), 2 Jur. (N. S.), 414. [1129] _Borthwick_ v. _Evening Post_ (1888), 37 Ch. D., 449; _Clement_ v. _Maddick_ (1859), 1 Giff., 98. [1130] _Bradbury_ v. _Beeton_ (1869), 39 L. J. Ch., 57. [1131] (1803), 8 Ves., 215. [1132] (1824), 3 Sh., 215. [1133] (1855), 2 K. and J., 117. [1134] (1855), 2 K. and J., 123. [1135] (1856), 2 Jur. (N. S.), 414. [1136] (1859), 1 Giff., 98. [1137] (1859), 5 Jur. (N. S.), 947. [1138] (1870), W. N., 268. [1139] (1873), W. N., 93. [1140] (1878), 8 Ch. D., 606. [1141] (1846), 2 Phillips, 154. [1142] (1857), 3 K. and J., 708. [1143] (1869), 39 L. J. Ch., 57. [1144] (1879), 40 L. T. (N. S.), 623. [1145] (1881), 18 Ch. D., 76. [1146] (1882), 46 L. T. (N. S.), 897. [1147] (1885), 54 L. J. Ch., 1059. [1148] (1888), 37 Ch. D., 449. [1149] _Hogg_ v. _Kirby_ (1803), 8 Ves., 215. [1150] _Seeley_ v. _Fisher_ (1841), 11 Sim., 581. [1151] _Carr_ v. _Hood_ (1808), 1 Camp., 354 _n._ [1152] _Martin_ v. _Wright_ (1833), 6 Sim., 297. [1153] _Dicks_ v. _Brooks_ (1880), 15 Ch. D., 22; _Ward_ v. _Beeton_ (1874), L. R., 19 Eq., 207; _Seeley_ v. _Fisher_ (1841), 11 Sim., 581. [1154] _Archbold_ v. _Sweet_ (1832), 5 C. and P., 219. [1155] (1853), 1 W. R., 345, 11 Hare, 118. [1156] _Clark_ v. _Freeman_ (1848), 11 Beav., 112. [1157] (1832), 5 C. and P., 219. [1158] _The Law Times_, September 28, 1889. [1159] (1892), 8 T. L. R., 773. [1160] _Byron_ v. _Johnston_ (1816), 2 Meriv., 29. [1161] (1820), 1 Jac. and W., 394. [1162] (1849), 2 De G. and Sm., 652. [1163] (1874), 43 L. J. Ch., 661. [1164] _Lamb_ v. _Evans_ [1893], 1 Ch., 218. [1165] [1892], 2 Ch., 518. [1166] (1895), 11 T. L. R., 515. [1167] [1895], 2 Q. B., 315. [1168] (1894), 11 T. L. R., 4. [1169] See _Jefferys_ v. _Boosey_ (1854), 4 H. L. C., 815, _per_ Lord Brougham. [1170] (1843), 2 Hare, 383, at p. 393. [1171] (1825), 3 L. J. (O. S.) Ch., 209. [1172] (1849), 2 De G. and Sm., 652. [1173] [1897], 2 Ch., 48. _Exchange Telegraph_ v. _Gregory_ [1896], 1 Q. B., 147. [1174] _Abernethy_ v. _Hutchinson_ (1825), 3 L. J. (O. S.), Ch., 209; _Prince Albert_ v. _Strange_ (1849), 1 M'N. and G., at p. 45. [1175] _Bridgman_ v. _Green_ (1755), 2 Ves. Sen., 627, Wilmot's cases, 58. [1176] _Morison_ v. _Moat_ (1851), 9 Hare, 241. [1177] _Barfield_ v. _Nicholson_ (1824), 2 Sim. and Stu., 1. [1178] _Tuck & Sons_ v. _Priester_ (1887), 19 Q. B. D., 629; _Pollard_ v. _Photo. Co._ (1888), 40 Ch. D., 345. [1179] (1887), 12 A. C., at p. 337. [1180] (1774), 2 Bro. P. C., 129; 4 Burr., 2408; _Millar_ v. _Taylor_ (1769), 4 Burr., 2303; _Forrester_ v. _Walker_ (1741), 4 Burr., 2331; _Duke of Queensberry_ v. _Shebbeare_ (1758), 2 Ed., Cha. Cas., 329; 4 Burr., 2330; _Webb_ v. _Rose_ (1732), Amb. 694; _Pope_ v. _Curl_ (1741), 2 Atk., 342. [1181] (1849), 1 M'N. and G., 25. [1182] _Millar_ v. _Taylor_, Yates, J., 4 Burr, at p. 2379; and see _Tonson_ v. _Walker_ (1752), 3 Swanst., 672; _Prince Albert_ v. _Strange_ (1849), 2 De G. and Sm., 652, at p. 691, 3. [1183] 2 De G. and Sm., p. 693. [1184] 2 De G. and Sm., at p. 697. [1185] (1769), 4 Burr., 2303, at p. 2379. [1186] _Jefferys_ v. _Boosey_ (1854), 4 H. L. C., 815; _Caird_ v. _Sime_ (1887), 12 A. C., at p. 343. [1187] _Abernethy_ v. _Hutchinson_ (1825), 3 L. J. (O. S.), Ch., 209. See p. 37, _supra_. [1188] (1770), Amb., 694. [1189] (1825), 3 L. J. (O. S.), Ch., 209. [1190] (1884), 26 Ch. D., 374. [1191] (1887), 12 A. C., 326. [1192] See _Pope_ v. _Curl_ (1741), 2 Atk., 342. [1193] 12 A. C., at p. 338. [1194] _Prince Albert_ v. _Strange_ (1849), 1 M'N. and G., 25; and see _Mayall_ v. _Higbey_ (1862), 1 H. and C., 148. [1195] _Southey_ v. _Sherwood_ (1817), 2 Mer., 435. [1196] _Southey_ v. _Sherwood_ (1817), 2 Mer., 435; and see cases as to publication of private letters, p. 225. [1197] _Prince Albert_ v. _Strange_ (1849), 2 De G. and Sm., at p. 697. [1198] _Southey_ v. _Sherwood_ (1817), 2 Mer., 435. [1199] _Prince Albert_ v. _Strange_ (1849), 2 De G. and Sm., at p. 688. [1200] (1825), 3 L. J. (O. S.). Ch., 209. [1201] (1884), 26 Ch. D., 374. [1202] (1825), 3 L. J. (O. S.), Ch., 209. [1203] See p. 57, _supra_. [1204] _Perceval_ v. _Phipps_ (1813), 2 V. and B., 19. [1205] _Pope_ v. _Curl_ (1741), 2 Atk., 342; _Thompson_ v. _Stanhope_ (1774), Amb., 737; _Granard_ v. _Dunkin_ (1809), 1 Ball and B., 207; _Gee_ v. _Pritchard_ (1818), 2 Swanst., 402; _Palin_ v. _Gathercole_ (1844), 1 Coll., 565. [1206] _Gee_ v. _Pritchard_ (1818), 2 Swanst., 402. [1207] _Howard_ v. _Gunn_ (1863), 32 Beav., 462. [1208] _Oliver_ v. _Oliver_ (1861), 11 C. B. (N. S.), 139. [1209] _Gee_ v. _Pritchard_ (1818), 2 Swanst., 402. [1210] _Lytton_ v. _Devey_ (1884), 52 L. T. (N. S.), 121. [1211] _Gee_ v. _Pritchard_ (1818), 2 Swanst., 402. [1212] _Thompson_ v. _Stanhope_ (1774), Amb., 737; _Lytton_ v. _Devey_ (1884), 52 L. T. (N. S.), 121. [1213] _Perceval_ v. _Phipps_ (1813), 2 V. and B., 19. [1214] _Perceval_ v. _Phipps_ (1813), 2 V. and B., 19; _Gee_ v. _Pritchard_ (1818), 2 Swan., 402; _Palin_ v. _Gathercole_ (1844), 1 Coll., 565; _Lytton_ v. _Devey_ (1884), 52 L. T. (N. S.), 121. [1215] _Hole_ v. _Bradbury_ (1879), 12 Ch. D., 886; _Stevens_ v. _Beaming_ (1855), 1 K. and J., 168; _Reade_ v. _Bentley_ (1857), 3 K. and J., 271. [1216] _Hole_ v. _Bradbury_ (1879), 12 Ch. D., 886. [1217] _Griffith_ v. _Tower Publishing_ [1897], 1 Ch., 21. [1218] _Gibson_ v. _Carruthers_ (1841), 8 M. and W., 321, at pp. 343, 4. [1219] _Gale_ v. _Leckie_ (1817), 2 Stark, N. P., 107. [1220] _Gibson_ v. _Carruthers_ (1841), 8 M. and W., 321, at pp. 343, 4. [1221] _Marshall_ v. _Broadhurst_ (1831), 1 Tyr., 348, at p. 349. [1222] _Clarke_ v. _Price_ (1819), 2 Wills, C. C., 157; and see _Whitwood_ v. _Hardman_ [1891], 2 Ch., 416. [1223] _Gale_ v. _Leckie_ (1817), 2 Stark, 107. [1224] _Morris_ v. _Colman_ (1812), 18 Ves., 437; _Stiff_ v. _Cassell_ (1856), 2 Jur. (N. S.), 348. [1225] _Thombleson_ v. _Black_ (1837), 1 Jur., 198. [1226] _Paton_ v. _Duncan_ (1828), 3 C. and P., 336. [1227] _Planché_ v. _Colburn_ (1831), 5 C. and P., 58. [1228] _Warne_ v. _Routledge_ (1874), L. R., 18 Eq., 497. [1229] Ibid. [1230] _Reade_ v. _Bentley_ (1857), 3 K. and J., 271. [1231] _Morris_ v. _Colman_ (1812), 18 Ves., 437; _Stiff_ v. _Cassell_ (1856), 2 Jur. (N. S.), 348. [1232] _Anstruther_ v. _Bentley_ (1866), 14 W. R., 630. [1233] _Ward_ v. _Beeton_ (1874), L. R., 19 Eq., 207. [1234] _Rooney_ v. _Kelly_ (1861), 14 Ir. C. L. R., 158, at p. 178. [1235] _Barfield_ v. _Nicholson_ (1824), 2 Sim. and Stu., 2; see _Brooke_ v. _Chitty_ (1831), 2 Coop. Cas., 216; _Blackie_ v. _Aikman_ (1827), 5 S., 719. [1236] See _Hogg_ v. _Kirby_ (1803), 8 Ves., 215, at p. 222. [1237] _Reade_ v. _Bentley_ (1857), 3 K. and J., 271. [1238] Ibid. [1239] See _Constable_ v. _Brewster_ (1824), 3 S., 215; _Kelly_ v. _Hutton_ (1868), L. R., 3 Ch., 703; _Platt_ v. _Walter_ (1867), 17 L. T. (N. S.), 157. [1240] _Johnson_ v. _Egan_ (1880), 24 Sol. J., 572. [1241] _Shackell_ v. _Rosier_ (1836), 2 Bing., N. C., 634. [1242] _Sweet_ v. _Lee_ (1841), 3 Man. and Gr., 452; see _Mavor_ v. _Pyne_ (1825), 3 Bing., 285; _Boydell_ v. _Drummond_ (1809), 11 East., 142. [1243] 54 & 55 Vict. c. 39. [1244] 5 & 6 Vict. c. 45, sec. 13. [1245] _Blake_ v. _Nicholson_ (1814), 3 M. and S., 167. [1246] _Bleaden_ v. _Hancock_ (1829), 4 C. and P., 152. [1247] 2 & 3 Vict. c. 12, sec. 2; and Newspapers, Printers, and Reading Rooms Repeal Act, 1869; 32 & 33 Vict. c. 24. [1248] _Bensley_ v. _Bignold_ (1822), 5 B. and Ald., 335; _Marchant_ v. _Evans_ (1818), 2 Moore, 14; see _Houston_ v. _Mills_ (1834), 1 M. and Rob., 325. [1249] _Gillett_ v. _Mawman_ (1808), 1 Taunt., 140. [1250] _Gillett_ v. _Mawman_ (1808), 1 Taunt., 140; _Mawman_ v. _Gillett_ (1809), 2 Taunt., 325. [1251] _Poplett_ v. _Stockdale_ (1825), Ry. and M., 337. [1252] _Clay_ v. _Yates_ (1856), 1 H. and N., 73. [1253] See p. 247. [1254] See pp. 250-264. [1255] See p. 266. [1256] _Bullinger_ v. _MacKay_ (1879), 15 Blatchf., 550; _Clayton_ v. _Stone_ (1828), 2 Paine, 382; _Brightley_ v. _Littleton_ (1888), 37 Fed. Rep., 103. [1257] _Clayton_ v. _Stone_ (1828), 2 Paine, 382; _Baker_ v. _Selden_ (1879), 101 U. S. Rep., 99; _Wheaton_ v. _Peters_ (1834), 8 Pet., 591. [1258] (1828), 2 Paine, 382. [1259] (1888), 37 Fed. Rep., 103. [1260] (1896), 75 Fed. Rep., 703. [1261] [1893], 1 Ch., 218 (headings in trades directory). [1262] [1894], A. C., 335 (circular tours in time-tables). [1263] (1897), 53 U. S. App., 461. [1264] [1900], A. C., 539. [1265] (1897), 53 U. S. App., 461. [1266] (1882), 21 Ch. D., 369. [1267] (1879), 101 U. S. Rep., 99. [1268] (1872), L. R., 14 Eq., 407. [1269] (1883), 21 Ch. D., 369. [1270] (1828), 2 Paine, 382. [1271] (1897), 53 U. S. App., 461. [1272] (1828), 2 Paine, 382. [1273] (1879), 101 U. S. Rep., 99. [1274] _Bullinger_ v. _MacKay_ (1879), 15 Blatchf., 550. [1275] _Chils_ v. _Gronland_ (1890), 41 Fed. Rep., 145. [1276] (1896), 75 Fed. Rep., 703. [1277] (1828), 2 Paine, 382. [1278] _Mott_ v. _Clow_ (1897), 53 U. S. App., 461. [1279] _Egbert_ v. _Greenberg_ (1900), 100 Fed. Rep., 447. [1280] _American Trotting_ v. _Gocher_ (1895), 70 Fed. Rep., 237. [1281] (1888), 37 Fed. Rep., 103. [1282] (1893), 57 Fed. Rep., 979. [1283] _Mutual Advertising Co._ v. _Refo_ (1896), 76 Fed. Rep., 961. [1284] 76 Fed. Rep., at p. 963. [1285] _Aronson_ v. _Fleckenstein_ (1886), 28 Fed. Rep., 75; _Daly_ v. _Webster_ (1892), 1 U. S. App., 573; _Henderson_ v. _Tompkins_ (1894), 60 Fed. Rep., 758. [1286] (1894), 60 Fed. Rep., 758. [1287] _Callaghan_ v. _Myers_ (1888), 128 U. S. Rep., 617; _Wheaton_ v. _Peters_ (1834), 8 Pet., 591; _Little_ v. _Hall_ (1855), 18 How., 165; _Gould_ v. _Banks_ (1832), 8 Wend., 562; _Heine_ v. _Appleton_ (1853), 4 Blatchf., 125; _Cowen_ v. _Banks_ (1862), 24 How. Pr., 72. [1288] _Callaghan_ v. _Myers_ (1888), 128 U. S. Rep., 617. [1289] _Connecticut_ v. _Gould_ (1888), 34 Fed. Rep., 319; _Gray_ v. _Russell_ (1839), 1 Story, 11; _West_ v. _Lawyers_ (1896), 51 U. S. App., 216, 64 Fed. Rep., 360. [1290] _Wheaton_ v. _Peters_ (1834), 8 Pet., 591; _Nash_ v. _Lathrop_ (1886), 142 Mass., 29. [1291] _Banks_ v. _Manchester_ (1888), 128 U. S. Rep., 244; _Chase_ v. _Sanborn_ (1874), 4 Cliff., 306. [1292] _Davidson_ v. _Wheelock_ (1886), 27 Fed. Rep., 61; _Banks_ v. _M'Divitt_ (1875), 13 Blatchf., 163; _Howell_ v. _Miller_ (1898), 91 Fed. Rep., 129. [1293] Ibid. [1294] Ibid. [1295] _Emerson_ v. _Davis_ (1845), 3 Story, 768; _Lawrence_ v. _Dana_ (1869), 4 Cliff., 1; _Black_ v. _Allen_ (1893), 56 Fed. Rep. 764. [1296] _Brightley_ v. _Littleton_ (1888), 37 Fed. Rep., 103; _Gray_ v. _Russell_ (1839), 1 Story, 11; _Lawrence_ v. _Dana_ (1869), 4 Cliff., at p. 79; _Mead_ v. _West_ (1896), 80 Fed. Rep., 380. [1297] _Emerson_ v. _Davis_ (1845), 3 Story, 768. [1298] _Emerson_ v. _Davis_ (1845), 3 Story, at p. 780; _Shook_ v. _Rankin_ (1875), 6 Biss., 477. [1299] _Aronson_ v. _Fleckenstein_ (1886), 28 Fed. Rep., 75. [1300] _Boucicault_ v. _Fox_ (1862), 5 Blatchf., 87, at p. 100. [1301] _Jollie_ v. _Jacques_ (1850), 1 Blatchf., 618. See _Reed_ v. _Carusi_ (1845), 8 L. R., 411; 72 Fed. Cas., No. 11,642. [1302] (1883), 14 Fed. Rep., 849. [1303] (1886), 27 Fed. Rep., 861. [1304] _Lawrence_ v. _Dana_ (1869), 4 Cliff., 1; _Gray_ v. _Russell_ (1839), 1 Story, 11. [1305] _Snow_ v. _Laird_ (1900), 98 Fed. Rep., 813. [1306] _Clayton_ v. _Stone_ (1828), 2 Paine, 382; _Brightley_ v. _Littleton_ (1888), 37 Fed. Rep., 103; _Mott_ v. _Clow_ (1897), 53 U. S. App., 461. [1307] _Clayton_ v. _Stone_ (1828), 2 Paine, 382; _Drury_ v. _Ewing_ (1862), 1 Bond, 541. [1308] (1897), 53 U. S. App., 449. [1309] (1879), 101 U. S. Rep., 99. [1310] 101 U. S. Rep., at p. 105. [1311] (1862), 1 Bond, 541. [1312] _Coffeen_ v. _Brunton_ (1849), 4 M'Lean, 516; _Scoville_ v. _Toland_ (1848), 6 West Law, J., 84. [1313] Rev. St., sec. 4952. [1314] _Greene_ v. _Bishop_ (1858), 1 Cliff., 186; _Gray_ v. _Russell_ (1839), 1 Story, 11; _Emerson_ v. _Davis_ (1845), 3 Story, 768. [1315] _Gray_ v. _Russell_ (1839), 1 Story, 11; _Bullinger_ v. _MacKay_ (1879), 15 Blatchf., 550; _Brightley_ v. _Littleton_ (1888), 37 Fed. Rep., 103; _Johnson_ v. _Donaldson_ (1880), 3 Fed. Rep., 22. [1316] (1841), 2 Story, 100. [1317] _Isaacs_ v. _Daly_ (1875), 39 N. Y., 511; _Osgood_ v. _Allen_ (1872), 1 Holmes, 185; _Corbett_ v. _Purday_ (1897), 80 Fed. Rep., 901; _Jollie_ v. _Jacques_ (1850), 1 Blatchf., 618. [1318] _Osgood_ v. _Allen_ (1872), 1 Holmes, 185; see _Roberts_ v. _Myers_ (1860), 13 L. R. (Mass.), 398; _Black_ v. _Allen_ (1893), 56 Fed. Rep., 764. [1319] _Isaacs_ v. _Daly_ (1875), 39 N. Y., 511. [1320] Rev. St., secs. 4937-4947. [1321] _Wood_ v. _Abbott_ (1866), 5 Blatchf., 325. [1322] _Schreiber_ v. _Thornton_ (1883), 17 Fed. Rep., 603; _Burrow-Giles_ v. _Sarony_ (1884), 111 U. S. Rep., 53; _Falk_ v. _Gast_ (1891), 48 Fed. Rep., 262; _Falk_ v. _Brett_ (1891), 48 Fed. Rep., 678; _Bolles_ v. _Outing_ (1899), 175 U. S. Rep., 262; 77 Fed. Rep., 966. [1323] _Bolles_ v. _Outing_ (1899), 175 U. S. Rep., 262; 77 Fed. Rep., 966. [1324] _Falk_ v. _Gast_ (1891), 48 Fed. Rep., 262; _Falk_ v. _Brett_ (1891), 48 Fed. Rep., 678; _Falk_ v. _Donaldson_ (1893), 57 Fed. Rep., 32. [1325] _Bolles_ v. _Outing_ (1899), 175 U. S. Rep., 262; 77 Fed. Rep., 966. [1326] _Snow_ v. _Laird_ (1900), 98 Fed. Rep., 813. [1327] _Binns_ v. _Woodruff_ (1821), 4 Wash. C. Ct., 48; _Ehret_ v. _Pierce_ (1880), 18 Blatchf. 302. [1328] _Mott_ v. _Clow_ (1897), 53 U. S. App., 461. [1329] _Collender_ v. _Griffith_ (1878), 11 Blatchf., 212. [1330] _Ehret_ v. _Pierce_ (1880), 18 Blatchf., 302. [1331] _Courier_ v. _Donaldson_ (1900), 104 Fed. Rep., 993; _Bleistein_ v. _Donaldson_ (1899), 98 Fed. Rep., 608. [1332] _Yuengling_ v. _Schile_ (1882), 12 Fed. Rep., 97. [1333] _Richardson_ v. _Miller_ (1877), 3 L. and Eq. Rep. (Am.), 614. [1334] (1888), 35 Fed. Rep., 210. [1335] _Coffeen_ v. _Brunton_ (1849), 4 M'L., 516; _Higgins_ v. _Keuffel_ (1891), 140 U. S. Rep., 428. [1336] _Schumacher_ v. _Schwencke_ (1885), 23 Blatchf., 373; 25 Fed. Rep., 466. [1337] _Rosenbach_ v. _Dreyfuss_ (1880), 2 Fed. Rep., 217. [1338] _Yuengling_ v. _Schile_ (1882), 12 Fed. Rep., 97, 102. [1339] See _Yuengling_ v. _Schile_ (1882), 12 Fed. Rep., at p. 102. [1340] _Boucicault_ v. _Wood_ (1867), 2 Biss., 34. [1341] Act of March 3, 1891, sec. 3, amending Revised Statutes, sec. 4956. [1342] Ibid. [1343] Act of March 3, 1891, amending Revised Statutes, sec. 4959. [1344] Act of March 3, 1891, sec. 11. [1345] _Jollie_ v. _Jacques_ (1850), 1 Blatchf., 618; _Struve_ v. _Schwedler_ (1857), 4 Blatchf., 23; _Wheaton_ v. _Peters_ (1834), 8 Pet., 591; _Chase_ v. _Sanborne_ (1874), 4 Cliff., 306; _Merrell_ v. _Tice_ (1881), 104 U. S. Rep., 557; _Baker_ v. _Taylor_ (1848), 2 Blatchf., 82; _Carte_ v. _Evans_ (1886), 27 Fed. Rep., 861; _Thompson_ v. _Hubbard_ (1888), 131 U. S. Rep., 123; _Callaghan_ v. _Myers_ (1888), 128 U. S. Rep., 617; _Parkinson_ v. _Lascelle_ (1875), 3 Sawyer, 330; _Boucicault_ v. _Hart_ (1875), 13 Blatchf., 47; _Lawrence_ v. _Dana_ (1869), 4 Cliff., 1; _Ewer_ v. _Coxe_ (1824), 4 Wash. C. Ct., 487. [1346] _Wheaton_ v. _Peters_ (1834), 8 Pet., 591; _Merrell_ v. _Tice_ (1881), 104 U. S. Rep., 557; _Banks_ v. _Manchester_ (1888), 128 U. S., 244; _West_ v. _Lawyers_ (1896), 64 Fed. Rep., 360. [1347] _Osgood_ v. _Aloe_ (1897), 83 Fed. Rep., 470. [1348] _Chicago_ v. _Butler_ (1884), 19 Fed. Rep., 758; _Parkinson_ v. _Lascelle_ (1875), 3 Sawyer, 330; _Merrell_ v. _Tice_ (1881), 104 U. S., Rep., 557. [1349] _Osgood_ v. _Aloe_ (1897), 83 Fed. Rep., 470. [1350] _Chase_ v. _Sanborne_ (1874), 4 Cliff., 306. [1351] _Chapman_ v. _Ferry_ (1883), 18 Fed. Rep., 539. [1352] _Jewellers'_ v. _Jewellers'_ (1898), 84 Hun., 12; 155 N. Y., 241; see _Scribner_ v. _Allen_ (1892), 49 Fed. Rep., 854; _Boucicault_ v. _Hart_ (1875), 13 Blatchf., 47. [1353] _Falk_ v. _Gast_ (1891), 48 Fed. Rep., 262. [1354] (1882), 20 Blatchf., 381. [1355] _Carte_ v. _Evans_ (1886), 27 Fed. Rep., 681. [1356] (1893), 56 Fed. Rep., 764. [1357] (1889), 39 Fed. Rep., 265. [1358] (1892), 1 U. S. App., 573. [1359] _Black_ v. _Allen_ (1893), 56 Fed. Rep., 764. [1360] _Bennett_ v. _Carr_ (1899), 96 Fed. Rep., 213. [1361] _Belford_ v. _Scribner_ (1892), 144 U. S. Rep., 488; _Chapman_ v. _Ferry_ (1883), 18 Fed. Rep., 539; _Falk_ v. _Donaldson_ (1893), 57 Fed. Rep., 32. [1362] _Osgood_ v. _Aloe_ (1897), 72 Off. Gaz., 418. [1363] _Callaghan_ v. _Myers_ (1888), 128 U. S. Rep., at p. 655; _Belford_ v. _Scribner_ (1892), 144 U. S. Rep., 488; _Merrell_ v. _Tice_ (1881), 104 U. S. Rep., 557; _Blume_ v. _Spear_ (1887), 30 Fed. Rep., 629. [1364] _Black_ v. _Allen_ (1893), 56 Fed. Rep., 764. [1365] Ibid. [1366] Act of March 3, 1891, sec. 3, amending Revised Statutes, sec. 4956. [1367] _Littleton_ v. _Oliver_ (1894), 62 Fed. Rep., 597. [1368] Ibid. [1369] Act of June 18, 1874, sec. 1. This section supersedes the Revised Statutes, sec. 4962. [1370] Ibid. [1371] Act of August 1, 1882. [1372] Act of June 18, 1874, sec. 1. [1373] _Jackson_ v. _Walkie_ (1886), 29 Fed. Rep., 15. [1374] _Falk_ v. _Schumacher_ (1891), 48 Fed. Rep., 222. [1375] _Hefel_ v. _Whitely_ (1893), 54 Fed. Rep., 179; and see _Garland_ v. _Gemmill_ (1887), 14 S. C. R., 321. [1376] _Osgood_ v. _Aloe_ (1897), 83 Fed. Rep., 470. [1377] _Scribner_ v. _Allen & Co._ (1892), 49 Fed. Rep., 854; _Werckmeister_ v. _Springer_ (1894), 63 Fed. Rep., 808. [1378] _The Illustrated American_ v. _New York Press_ (1892), cited in argument, 1 U. S. Rep., 594. [1379] _Burrow-Giles_ v. _Sarony_ (1884), 111 U. S. Rep., 53. [1380] _Bolles_ v. _Outing_ (1899), 77 Fed. Rep., 966; 175 U. S. Rep., 262. [1381] Ibid. [1382] _Werckmeister_ v. _Springer_ (1894), 63 Fed. Rep., 808. [1383] (1901), 107 Fed. Rep., 708. [1384] (1848), 2 Blatchf., 82. [1385] (1888), 128 U. S. Rep., 617. [1386] (1888), 35 Fed. Rep., 210. [1387] _Snow_ v. _Mast_ (1895), 65 Fed. Rep., 995; _Bolles_ v. _Outing_ (1899), 175 U. S. Rep., 262. [1388] (1869), 4 Cliff. 1, at p. 61. [1389] Ibid. [1390] (1875), 13 Blatchf., 163. [1391] Act of June 18, 1874, sec. 1; _Thompson_ v. _Hubbard_ (1888), 131 U. S. Rep., 123. [1392] _Thompson_ v. _Hubbard_ (1888), 131 U. S. Rep., 123. [1393] _Falk_ v. _Gast_ (1891), 48 Fed. Rep., 262; _Falk_ v. _Gast_ (1893), 54 Fed. Rep., 890. [1394] _Springer_ v. _Falk_ (1894), 20 U. S. App., 296. [1395] _Dewight_ v. _Appleton_ (1842), 1 N. Y. Leg. Obs., 195. [1396] Act of March 3, 1891, sec. 11. [1397] _Pierce_ v. _Werckmeister_ (1896), 72 Fed. Rep. 57. [1398] _Black_ v. _Allen_ (1890), 42 Fed. Rep., 168. [1399] _Pulte_ v. _Derby_ (1852), 5 M'L., 328; M'Lean, J., at p. 332. [1400] See _Boucicault_ v. _Wood_ (1867), 2 Biss., 34. [1401] (1875), 13 Blatchf., 47. [1402] (1896), 84 Hun., 12. [1403] (1896), 75 Fed. Rep., 703. [1404] (1896), 75 Fed. Rep., 703. [1405] (1898), 155 N. Y., 241. [1406] _Jewellers'_ v. _Jewellers'_ (1895), 84 Hun., 12. [1407] _Osgood_ v. _Aloe_ (1897), 83 Fed. Rep., 470; _Gottsberger_ v. _Aldine_ (1887), 33 Fed. Rep., 381; _Baker_ v. _Taylor_ (1848), 2 Blatchf., 82. [1408] _Per_ Parker, Ch. J., in _Jewellers'_ v. _Jewellers'_ (1898), 155 N. Y., at p. 251. [1409] _D'Ole_ v. _Kansas_ (1899), 94 Fed. Rep., 840. [1410] _Black_ v. _Allen_ (1893), 56 Fed. Rep., 764; see _Baker_ v. _Taylor_ (1848), 2 Blatchf., 82; _Wall_ v. _Gordon_ (1872), 12 Abb. Pr. N. S. (N. Y.), 349. [1411] _Press Publishing Co._ v. _Monroe_ (1896), 73 Fed. Rep., 196; and see _Blunt_ v. _Patten_ (1828), 2 Paine, 397; _Keene_ v. _Wheatley_ (1860), 9 Am. L. Reg., 45. [1412] _Bartlett_ v. _Crittenden_ (1847), 4 M'L., 301. [1413] _Falk_ v. _Gast_ (1893), 54 Fed. Rep., 890. [1414] _French_ v. _Kreling_ (1894), 63 Fed. Rep., 621. [1415] _Kiernan_ v. _Manhattan_ (1876), 50 How. Prac., 194. [1416] _Rigney_ v. _Dalton_ (1896), 77 Fed. Rep., 176. [1417] _Jewellers'_ v. _Jewellers'_ (1898), 155 N. Y., 241. [1418] _Larrowe_ v. _O'Loughlin_ (1898), 88 Fed. Rep., 896. [1419] _Jewellers'_ v. _Jewellers'_ (1898), 155 N. Y., 241; _Ladd_ v. _Oxnard_ (1896), 75 Fed. Rep., 703. [1420] _Holmes_ v. _Hurst_ (1898), 174 U. S. Rep. 82; _Holmes_ v. _Donohue_ (1896), 77 Fed. Rep., 179; _Mifflin_ v. _Dutton_ (1901), 107 Fed. Rep., 708. [1421] See _Bartlett_ v. _Crittenden_ (1847), 4 M. L., 301; _Rees_ v. _Peltzer_ (1874), 75 Ill., 475; _Keene_ v. _Wheatley_ (1860), 9 Am. L. Rep., 45; _Palmer_ v. _De Witt_ (1872), 47 N. Y., 532. [1422] _Palmer_ v. _De Witt_ (1872), 47 N. Y., 532; _Aronson_ v. _Fleckenstein_ (1886), 28 Fed. Rep., 75; _Bartlett_ v. _Crittenden_ (1847), 4 M'L., 301; _Boucicault_ v. _Hart_ (1875), 13 Blatchf., 47; _Tompkins_ v. _Halleck_ (1882), 133 Mass., 32; _Keene_ v. _Wheatley_ (1860), 4 Phil., 157; _Keene_ v. _Kimball_ (1860), 16 Gray, 549; _Boucicault_ v. _Fox_ (1862), 5 Blatchf., 87; _Crowe_ v. _Aiken_ (1870), 2 Biss., 208; _Thomas_ v. _Lennox_ (1883), 14 Fed. Rep., 849; _Keene_ v. _Clarke_ (1867), 5 Rob. (N. Y.), 38; _Shook_ v. _Rankin_ (1875), 6 Biss., 477; _French_ v. _Maguire_ (1867), 55 How. (N. Y.) Prac., 471. [1423] _Pierce_ v. _Werckmeister_ (1896), 72 Fed. Rep., 57. [1424] _Werckmeister_ v. _Springer_ (1894), 63 Fed. Rep., 808. [1425] _Palmer_ v. _De Witt_ (1872), 47 N. Y., 532; _Boucicault_ v. _Wood_ (1867), 2 Biss., 34; _Crowe_ v. _Aiken_ (1870), 2 Biss., 208. [1426] _Daly_ v. _Walrath_ (1899), 40 App. Div., N. Y., 220. [1427] Ibid. [1428] _Boucicault_ v. _Wood_ (1867), 2 Biss., at p. 39. [1429] Act of 1891, sec. 4, amending Revised Statutes, sec. 4958; and see Act, June 18, 1874, sec. 2. [1430] Act of 1891, sec. 4. [1431] Ibid. [1432] Revised Statutes, sec. 4961. [1433] Revised Statutes, sec. 4960. [1434] _Martinetti_ v. _Maguire_ (1867), 1 Abb. U. S., 356; _Shook_ v. _Daly_ (1875), 49 How. Prac., 366; _Keene_ v. _Kimball_ (1860), 16 Gray, 549. [1435] _Broder_ v. _Zeno_ (1898), 88 Fed. Rep., 74. [1436] Ibid. [1437] _Richardson_ v. _Miller_ (1877), 3 L. and Eq. Rep. (Am.), 614. [1438] _Egbert_ v. _Greenberg_ (1900), 100 Fed. Rep., 447. [1439] _American Trotting Register_ v. _Gocker_ (1895), 70 Fed. Rep., 237. [1440] Revised Statutes, sec. 4953. [1441] Act of 1891, sec. 2. [1442] (1888), 128 U. S. Rep., 617. [1443] _Pierpont_ v. _Fowle_ (1846), 2 Wood, and Min., 23, 44; _Cowen_ v. _Banks_ (1862), 24 How. Prac., 72; see _Rundell_ v. _Murray_ (1821), Jac., 315. [1444] _Paige_ v. _Banks_ (1871), 13 Wall, 608; (1871), 7 Blatchf., 152. [1445] _Wheaton_ v. _Peters_ (1834), 8 Pet., 591, 654. [1446] _Lawrence_ v. _Dana_ (1869), 4 Cliff., 1. [1447] _Koppel_ v. _Downing_, 24 Wash. L. R., 342. [1448] _Little_ v. _Gould_ (1851), 2 Blatchf., 165; _Green_ v. _Bishop_ (1858), 1 Cliff., 186, 198; _Yuengling_ v. _Schile_ (1882), 12 Fed. Rep., 97, 100. [1449] _Yuengling_ v. _Schile_ (1882), 12 Fed. Rep., at p. 106. [1450] _Heine_ v. _Appleton_ (1853), 4 Blatchf., 125. [1451] _Press_ v. _Munroe_ (1896), 73 Fed. Rep., 196; _Black_ v. _Allen_ (1893), 56 Fed. Rep., 764. [1452] _Black_ v. _Allen_ (1893), 56 Fed. Rep., 764. [1453] _Burrow-Giles_ v. _Sarony_ (1884), 111 U. S., 53. [1454] _Bullinger_ v. _MacKay_ (1879), 15 Blatchf., 550. [1455] _Atwill_ v. _Ferrett_ (1846), 2 Blatchf., 39; _Roberts_ v. _Myers_ (1860), 13 L. R. Mass., 396. [1456] _Gray_ v. _Russell_ (1839), 1 Story, 11; Betts, J., in _Atwill_ v. _Ferrett_ (1846), 2 Blatchf., at p. 46. [1457] _Aronson_ v. _Fleckenstein_ (1886), 28 Fed. Rep., 75. [1458] _Carte_ v. _Bailey_ (1874), 64 Maine, 458. [1459] _Colliery_ v. _Schools_ (1899), 94 Fed. Rep., 152; _Schumacher_ v. _Schwencke_ (1885), 25 Fed. Rep., 466; _Mutual Advertising_ v. _Refo_ (1896), 76 Fed. Rep., 961; _Lawrence_ v. _Dana_ (1869), 4 Cliff., 1; _Little_ v. _Gould_ (1851), 2 Blatchf., 165; _Heine_ v. _Appleton_ (1853), 4 Blatchf., 125; but see _Pierpont_ v. _Fowle_ (1846), 2 Woodb. and M., 23; _Atwill_ v. _Ferrett_ (1846), 2 Blatchf., 39. [1460] _Dielman_ v. _White_ (1900), 102 Fed. Rep., 892. [1461] _Boucicault_ v. _Fox_ (1862), 5 Blatchf., 87. [1462] _Press_ v. _Munroe_ (1896), 73 Fed. Rep., 196; _Black_ v. _Allen_ (1893), 56 Fed. Rep., 764. [1463] _Lawrence_ v. _Dana_ (1869), 4 Cliff., 1, at pp. 59, 66. [1464] _Banks_ v. _Manchester_ (1888), 128 U. S. Rep., at p. 253. [1465] Ibid. [1466] _Schumacher_ v. _Schwencke_ (1885), 25 Fed. Rep., 466; _Mutual Advertising_ v. _Refo_ (1896), 76 Fed. Rep., 961. [1467] (1853), 4 Blatchf., 125 [1468] _Little_ v. _Gould_ (1851), 2 Blatchf., 165. [1469] _Callaghan_ v. _Myers_ (1888), 128 U. S. Rep., 617; _Black_ v. _Allen_ (1890), 42 Fed. Rep., 618; _Carte_ v. _Evans_ (1886), 27 Fed. Rep., 861; _Lawrence_ v. _Dana_ (1869), 4 Cliff., 1, at p. 59; _Little_ v. _Gould_ (1851), 2 Blatchf., 165. [1470] _Pulte_ v. _Derby_ (1852), 5 M'L., 328; _Little_ v. _Gould_ (1851), 2 Blatchf., 165; _Lawrence_ v. _Dana_ (1869), 4 Cliff., 1. [1471] Act of February 3, 1831, sec. 9; _Parton_ v. _Prang_ (1872), 3 Cliff., at p. 549; but see _contra_, _Lawrence_ v. _Dana_ (1869), 4 Cliff., 1, at p. 59; _Pulte_ v. _Derby_ (1852), 5 M'L., 328. [1472] _Parton_ v. _Prang_ (1872), 3 Cliff., 537; _Yuengling_ v. _Schile_ (1882), 12 Fed. Rep., 97; _Werckmeister_ v. _Springer_ (1894), 63 Fed. Rep., 808; _Stevens_ v. _Gladding_ (1854), 17 How., 447; _Stephens_ v. _Cady_ (1852), 14 How., 528; _Carte_ v. _Bailey_ (1874), 64 Maine, 458; see _MacKaye_ v. _Mallory_ (1882), 12 Fed. Rep., 328. [1473] _Webb_ v. _Powers_ (1847), 2 Woodb. and Min., 497; see _Gould_ v. _Banks_, _Stephens_ v. _Cady_, _Little_ v. _Hall_, _ubi supra_. [1474] _Gould_ v. _Banks_ (1832), 8 Wend., 562. [1475] _Black_ v. _Allen_ (1893), 56 Fed. Rep., 764; _Carte_ v. _Evans_ (1886), 27 Fed. Rep., 861. [1476] _Gilmore_ v. _Anderson_ (1889), 38 Fed. Rep., 846. [1477] _Black_ v. _Allen_ (1893), 56 Fed. Rep., 764; _Carte_ v. _Bailey_ (1874), 64 Maine, 458. [1478] _Werckmeister_ v. _Springer_ (1894), 63 Fed. Rep., 808. [1479] _Publishing Co._ v. _Munroe_ (1896), 73 Fed. Rep., 196. [1480] _Davies_ v. _Vories_, 42 S. W., 707. [1481] _Keene_ v. _Wheatley_ (1860), 9 Am. L. Reg., 45. [1482] But see _Little_ v. _Gould_ (1851), 2 Blatchf., 165. [1483] _Aronson_ v. _Fleckenstein_ (1886), 28 Fed. Rep., 75. [1484] Revised Statutes, sec. 4952. [1485] _Stephens_ v. _Cady_ (1852), 14 How., 528; _Stevens_ v. _Gladding_ (1854), 17 How., 451. [1486] Act of March 3, 1891, sec. 1. [1487] _Harper_ v. _Shoppell_ (1886), 23 Blatchf., 431. [1488] _Morrison_ v. _Pettibone_ (1897), 87 Fed. Rep., 330. [1489] _Falk_ v. _Donaldson_ (1893), 57 Fed. Rep., 32; _Fishel_ v. _Lueckel_ (1892), 53 Fed. Rep., 499; _Springer_ v. _Falk_ (1894), 20 U. S. App., 296. [1490] _Falk_ v. _Howell_ (1888), 37 Fed. Rep., 202. [1491] _Kennedy_ v. _McTammany_ (1888), 33 Fed. Rep., 584. [1492] _Ladd_ v. _Oxnard_ (1896), 75 Fed. Rep., 703. [1493] _Schumacher_ v. _Schwencke_ (1887), 30 Fed. Rep., 690. [1494] _Maloney_ v. _Foote_ (1900), 101 Fed. Rep., 264. [1495] _Lawrence_ v. _Dana_ (1869), 4 Cliff., 1, 81; _Folsom_ v. _Marsh_ (1841), 2 Story, 118; _Story_ v. _Holcombe_ (1847), 4 M'L., 310; _Reed_ v. _Holliday_ (1884), 19 Fed. Rep., 323; _Brady_ v. _Daly_ (1897), 83 Fed. Rep., 1007; _M'Lean_ v. _Flemming_ (1877), 96 U. S. Rep., 245; _Fishel_ v. _Lueckel_ (1892), 53 Fed. Rep., 499; _Morrison_ v. _Pettibone_ (1897), 87 Fed. Rep., 330; _Millet_ v. _Snowden_ (1843), 1 West L. J., 240; _Parker_ v. _Hulme_ (1849), 7 West L. J., 426. [1496] _Morrison_ v. _Pettibone_ (1897), 87 Fed. Rep., 330. [1497] _Lawrence_ v. _Dana_ (1869), 4 Cliff., 1, 81; _Webb_ v. _Powers_ (1847), 2 Wood and Min., 497. [1498] _Lawrence_ v. _Dana_ (1869), 4 Cliff., 1, p. 73. [1499] _Mead_ v. _West_ (1896), 80 Fed. Rep., 380. [1500] _West_ v. _Lawyers_ (1896), 51 U. S. App., 216. [1501] _Bullinger_ v. _MacKay_ (1879), 15 Blatchf. C. C., 550. [1502] _Emerson_ v. _Davis_ (1845), 3 Story, 768. [1503] Ibid. [1504] _Gray_ v. _Russell_ (1839), 1 Story, 11. [1505] _Blunt_ v. _Patten_ (1828), 2 Paine, 397. [1506] _Gilmore_ v. _Anderson_ (1889), 38 Fed. Rep., 846. [1507] _Johnson_ v. _Donaldson_ (1880), 3 Fed. Rep., 22. [1508] _Banks_ v. _M'Divitt_ (1875), 13 Blatchf., p. 163; _Mead_ v. _West_ (1896), 80 Fed. Rep., 380. [1509] _Banks_ v. _M'Divitt_ (1875), 13 Blatchf., at pp. 165, 6. [1510] _Gilmore_ v. _Anderson_ (1889), 38 Fed. Rep., 846. [1511] _Thomas_ v. _Lennox_ (1883), 14 Fed. Rep., 849. [1512] See _Carte_ v. _Duff_ (1885), 25 Fed. Rep., 183. [1513] Clifford, J., in _Lawrence_ v. _Dana_ (1869), 4 Cliff., at p. 80; _Gray_ v. _Russell_ (1839), 1 Story, 11; _Folsom_ v. _Marsh_ (1841), 2 Story, 100; _Farmer_ v. _Elstner_ (1888), 33 Fed. Rep., 494; _Story_ v. _Holcombe_ (1847), 4 M'L., 315; _Emerson_ v. _Davis_ (1845), 3 Story, at p. 795; _Reed_ v. _Holliday_ (1884), 19 Fed. Rep., 325; _Greene_ v. _Bishop_ (1858), 1 Cliff., 186. [1514] Story, J., in _Folsom_ v. _Marsh_ (1841), 2 Story, at p. 115. [1515] _Lawrence_ v. _Dana_ (1869), 4 Cliff., 1, 81, 83; _Perris_ v. _Hexamer_ (1878), 99 U. S. Rep., 674; _Morrison_ v. _Pettibone_ (1897), 87 Fed. Rep., 330. [1516] Although this is an element in the question of substantiality, it is no answer to a charge of infringement to say that the infringing composition would have been equally valuable without the borrowed matter. _Brady_ v. _Daly_ (1897), 83 Fed. Rep., 1007. [1517] (1897), 87 Fed. Rep., 330. [1518] _Howell_ v. _Miller_ (1898), 91 Fed. Rep., 129. [1519] _Springer_ v. _Falk_ (1894), 20 U. S. App., 296; _Falk_ v. _Donaldson_ (1893), 57 Fed. Rep., 32; _Fishel_ v. _Lueckel_ (1892), 53 Fed. Rep., 499. [1520] _Farmer_ v. _Culvert_ (1872), 5 Am. L. T. R., 168; see _Sanborn_ v. _Dakin_ (1889), 39 Fed. Rep., 266. [1521] _Daly_ v. _Palmer_ (1868), 6 Blatchf., 256; _Daly_ v. _Webster_ (1892), 1 U. S. App., 611; _Brady_ v. _Daly_ (1897), 83 Fed. Rep., 1007. [1522] _Falk_ v. _Donaldson_ (1893), 57 Fed. Rep., 32; _Falk_ v. _Howell_ (1888), 37 Fed. Rep., 202. [1523] _Mead_ v. _West_ (1896), 80 Fed. Rep., 380; _List_ v. _Keller_ (1887), 30 Fed. Rep., 772. [1524] Ibid. [1525] _List_ v. _Keller_ (1887), 30 Fed. Rep., 772. [1526] (1875), 13 Blatchf., at p. 166. [1527] Story, J., in _Emerson_ v. _Davis_ (1845), 3 Story, at p. 793. [1528] _Daly_ v. _Palmer_ (1868), 6 Blatchf., 256; _Daly_ v. _Webster_ (1892), 1 U. S. App., 573; _Goldmark_ v. _Kreling_ (1888), 35 Fed. Rep., 661. [1529] _Broder_ v. _Zeno_ (1898), 88 Fed. Rep., 74; _Blume_ v. _Spear_ (1887), 30 Fed. Rep., 629; _Jollie_ v. _Jacques_ (1850), 1 Blatchf., 618. [1530] _West_ v. _Lawyers_ (1894), 64 Fed. Rep., 361. [1531] _List Publishing Co._ v. _Keller_ (1887), 30 Fed. Rep., 772. [1532] _Sanborn_ v. _Dakin_ (1889), 39 Fed. Rep., 266; _Farmer_ v. _Culvert_ (1872), 5 Am. L. T. R., 168. [1533] _Chils_ v. _Gronland_ (1890), 41 Fed. Rep., 145; _Webb_ v. _Powers_ (1847), 2 Wood. and Min., 497. [1534] _Banks_ v. _M'Divitt_ (1875), 13 Blatchf., 163; _Mead_ v. _West_ (1896), 80 Fed. Rep., 380; _Howell_ v. _Miller_ (1898), 91 Fed. Rep., 129. [1535] _Banks_ v. _M'Divitt_ (1875), 13 Blatchf., 163. [1536] _Mead_ v. _West_ (1896), 80 Fed. Rep., 380. [1537] _Burnell_ v. _Chown_ (1895), 69 Fed. Rep., 993. [1538] _Munro_ v. _Smith_ (1890), 42 Fed. Rep., 266. [1539] _Ehret_ v. _Pierce_ (1880), 18 Blatchf., 302; _Mutual Advertising Co._ v. _Refo_ (1896), 76 Fed. Rep., 961. [1540] _Mutual Advertising Co._ v. _Refo_ (1896), 76 Fed. Rep., 961. [1541] _Serrana_ v. _Jefferson_ (1888), 33 Fed. Rep., 347. [1542] (1879), 15 Blatchf., 550. [1543] _Ladd_ v. _Oxnard_ (1896), 75 Fed. Rep., 703; _Brightley_ v. _Littleton_ (1888), 37 Fed. Rep., 103; _Mead_ v. _West_ (1896), 80 Fed. Rep., 380; _Springer_ v. _Falk_ (1894), 20 U. S. App., 296. [1544] _Drury_ v. _Ewing_ (1862), 1 Bond., 549. [1545] _Story_ v. _Holcombe_ (1847), 4 M'L., 306; _Webb_ v. _Powers_ (1847), 2 Wood. and Min., 497, 512. [1546] _Falk_ v. _Donaldson_ (1893), 57 Fed. Rep., 32. [1547] _Falk_ v. _Howell_ (1888), 37 Fed. Rep., 202. [1548] _Gilmore_ v. _Anderson_ (1889), 38 Fed. Rep., 846. [1549] (1839), 1 Story, 11; see _Story_ v. _Holcombe_ (1847), 4 M'L., 306; _Folsom_ v. _Marsh_ (1841), 2 Story, 100, 116. [1550] Gifford, J., in _Lawrence_ v. _Dana_ (1869), 4 Giff., 82; see Story, J., in _Folsom_ v. _Marsh_ (1841), 2 Story, p. 106; _Story_ v. _Holcombe_ (1847), 4 M'L., at p. 309. [1551] _Lawrence_ v. _Dana_ (1869), 4 Cliff., p. 78; _Story_ v. _Holcombe_ (1847), 4 M'L., 309; _Folsom_ v. _Marsh_ (1841), 2 Story, 106; _Gray_ v. _Russell_ (1839), 1 Story, 11; _Stowe_ v. _Thomas_ (1853), 2 Wall. Jr., p. 547; _Keene_ v. _Wheatley_ (1860), 9 Am. L. R., 45. [1552] (1847), 4 M'L., 306. [1553] _Story_ v. _Holcombe_ (1847), 4 M'L., 308, 309. [1554] (1869), 4 Cliff., 78. [1555] _Lawrence_ v. _Dana_ (1869), 4 Cliff., pp. 78, 79. [1556] Act of March 3, 1891, sec. 1. [1557] Act of July 18, 1870; Revised Statutes, 1874, sec. 4952. [1558] _Stowe_ v. _Thomas_ (1853), 2 Wall. Jr., 547. [1559] Act of March 3, 1891, sec. 1. [1560] Act of Congress, Aug. 18, 1856. [1561] (1868), 6 Blatchf., 256, at p. 264. [1562] (1868), 6 Blatchf., at p. 264. [1563] _Brady_ v. _Daly_ (1899), 175 U. S. Rep., 148; _Daly_ v. _Webster_ (1892), 1 U. S. App., 573. [1564] See _Carte_ v. _Duff_ (1885), 25 Fed. Rep., 183. [1565] Act of 1891, sec. 7, amending Revised Statutes, sec. 4964. [1566] Act of March 2, 1895, amending Revised Statutes, sec. 4965, and Act of 1891, sec. 8. [1567] It has been suggested that this division of penalties applies only to "paintings, statues, and statuary." _Thornton_ v. _Schreiber_ (1887), 7 How., 8 Sup. Ct., 618. [1568] _Taylor_ v. _Gilman_ (1885), 24 Fed. Rep., 632. [1569] _Bennett_ v. _Boston_ (1900), 101 Fed., Rep., 445. [1570] Act of Jan. 6, 1897, amending Revised Statutes, sec. 4966. [1571] _Chapman_ v. _Ferry_ (1882), 12 Fed. Rep., 693. [1572] _Stevens_ v. _Gladding_ (1854), 17 How., 447; _Falk_ v. _Gast_ (1893), 54 Fed. Rep., 890; _Belford_ v. _Scribner_ (1892), 144 U. S. Rep., 488; _Chapman_ v. _Ferry_ (1882), 12 Fed. Rep., 693. [1573] _West_ v. _Lawyers_ (1894), 64 Fed. Rep., 360; _Belford_ v. _Scribner_ (1892), 144 U. S. Rep., 488; _Farmer_ v. _Elstner_ (1888), 33 Fed. Rep., 494. [1574] _Callaghan_ v. _Myers_ (1888), 128 U. S. Rep., 617; _Lawrence_ v. _Dana_ (1869), 4 Cliff., 85; _Elizabeth_ v. _Pavement Co._ (1877), 97 U. S. Rep., 126, 139. [1575] _Callaghan_ v. _Myers_ (1888), 128 U. S. Rep., 617. [1576] Ibid. [1577] _Gilmore_ v. _Anderson_ (1890), 42 Fed. Rep., 267. [1578] _Daly_ v. _Brady_ (1895), 69 Fed. Rep., 285; _Atwill_ v. _Ferrett_ (1846), 2 Blatchf., 39; Revised Statutes, sec. 860. [1579] _Taylor_ v. _Gilman_ (1885), 24 Fed. Rep., 632; _Johnson_ v. _Donaldson_ (1880), 3 Fed. Rep., 22; _Chapman_ v. _Ferry_ (1882), 12 Fed. Rep., 693. [1580] _Thornton_ v. _Schreiber_ (1887), 7 How., at p. 614; _Springer_ v. _Falk_ (1894), 20 U. S. App., 296. [1581] _Falk_ v. _Heffron_ (1893), 56 Fed. Rep., 299. [1582] Ibid. [1583] Revised Statutes, sec. 4965. [1584] _Bolles_ v. _Outing_ (1899), 77 Fed. Rep., 966; _Reed_ v. _Carusi_ (1845), 72 Fed. Cas., No. 11, 642; _Backus_ v. _Gould_ (1849), 7 How., 798; _Thornton_ v. _Schreiber_ (1887), 124 U. S. Rep., 612; _Falk_ v. _Curtis_ (1901), 107 Fed. Rep., 126; (1900), 98 Fed. Rep., 989; _Child_ v. _New York Times_ (1901), 110 Fed. Rep., 527. [1585] _Falk_ v. _Curtis_ (1900), 100 Fed. Rep., 77. [1586] _Thornton_ v. _Schreiber_ (1887), 124 U. S. Rep., 612. [1587] _Chapman_ v. _Ferry_ (1882), 12 Fed. Rep., 693. [1588] Previous demand is not a condition precedent; _Hegemen_ v. _Springer_ (1901), 110 Fed. Rep., 374. [1589] _Rogers_ v. _Jewett_ (1858), 12 L. R., 339. [1590] _Sarony_ v. _Ehrich_ (1886), 28 Fed. Rep., 79. [1591] See _Williams_ v. _Smythe_ (1901), 110 Fed. Rep., 961. [1592] _Harper_ v. _Holman_ (1897), 84 Fed. Rep., 224; _Colliery_ v. _Schools_ (1899), 24 Fed. Rep., 152; _Little_ v. _Gould_ (1851), 2 Blatchf., at p. 184. [1593] _Hubbard_ v. _Thompson_ (1882), 14 Fed. Rep., 689; _Trow_ v. _Boyd_ (1899), 97 Fed. Rep., 586. [1594] _Reed_ v. _Holliday_ (1884), 19 Fed. Rep., 325; _Black_ v. _Allen_ (1893), 56 Fed. Rep., 764. [1595] _Daly_ v. _Palmer_ (1868), 6 Blatchf., 256. [1596] _Stuart_ v. _Smith_ (1895), 68 Fed. Rep., 189. [1597] _Falk_ v. _Curtis_ (1900), 98 Fed. Rep., 989. [1598] _Belford_ v. _Scribner_ (1892), 144 U. S. Rep., 488. [1599] _Fishel_ v. _Lueckel_ (1892), 53 Fed. Rep., 499. [1600] _Trow_ v. _Boyd_ (1899), 97 Fed. Rep., 586. [1601] _Taylor_ v. _Gilman_ (1885), 24 Fed. Rep., 632. [1602] _McDonald_ v. _Hearst_ (1899), 95 Fed. Rep., 656. [1603] _Thornton_ v. _Schreiber_ (1887), 7 How., at p. 614; _Springer_ v. _Falk_(1894), 20 U. S. App., 296. [1604] Revised Statutes, sec. 4968. [1605] _Wheeler_ v. _Cobbey_ (1895), 70 Fed. Rep., 487; _Daly_ v. _Brady_ (1895), 69 Fed. Rep., 285; see _Brady_ v. _Daly_ (1899), 175 U. S. Rep., at p. 158. [1606] _Black_ v. _Allen_ (1893), 56 Fed. Rep., 764. [1607] _Hill_ v. _Epley_ (1858), 31 Perm. St., 331; _Lawrence_ v. _Dana_ (1869), 4 Cliff., 83; _Heine_ v. _Appleton_ (1853), 4 Blatchf., 125; _Menendez_ v. _Holt_ (1888), 128 U. S., 514; _Keene_ v. _Clarke_ (1867), 5 Robertson, N. Y., 38, 66, 67. [1608] _Boucicault_ v. _Wood_ (1867), 2 Biss., 34. [1609] _Falk_ v. _Schumacher_ (1891), 48 Fed. Rep., 232. [1610] Ibid. [1611] _Scribner_ v. _Allen_ (1892), 49 Fed. Rep., 854. [1612] Revised Statutes, sec. 4969; sec. 914; see _Johnston_ v. _Klopsch_ (1898), 88 Fed. Rep., 692. [1613] Revised Statutes, sec. 4963, amended Act, March 3, 1897. [1614] _Ross_ v. _Raphael Tuck_ (1898), 91 Fed. Rep., 128. [1615] _Rosenbach_ v. _Dreyfus_ (1880), 2 Fed. Rep., 217. [1616] _Taft_ v. _Stephens_ (1889), 39 Fed. Rep., 781. [1617] _Rigney_ v. _Raphael Tuck_ (1896), 77 Fed. Rep., 173. [1618] _Rigney_ v. _Dalton_ (1896), 77 Fed. Rep., 176. [1619] Ibid. [1620] _Hoertel_ v. _Raphael Tuck_ (1899), 94 Fed. Rep., 844. [1621] _Rigney_ v. _Dalton_ (1896), 77 Fed. Rep., 176. [1622] Revised Statutes, sec. 4956, amended March 3, 1891, 26 S. L., 1107. [1623] 26 S. L., 604. [1624] 26 S. L., 604. [1625] Ibid. [1626] Ibid. [1627] Ibid. [1628] Revised Statute, sec. 4956, amended March 3, 1891, 26 S. L., 694. [1629] Ibid. [1630] _Wheaton_ v. _Peters_ (1834), 8 Pet., 591; _Banks_ v. _Manchester_ (1888), 128 U. S. Rep., 244; _Jewellers'_ v. _Jewellers'_ (1898), 155 N. Y., 241; _Holmes_ v. _Hurst_ (1898), 174 U. S. Rep., 82; _Palmer_ v. _De Witt_ (1872), 47 N. Y., 532; _West_ v. _Lawyers_ (1896), 64 Fed. Rep., 360; _Parton_ v. _Prang_ (1872), 3 Cliff., 537; _Merrell_ v. _Tice_ (1881), 104 U. S. Rep., 557; _Boucicault_ v. _Hart_ (1875), 13 Blatchf., 47; _Boucicault_ v. _Fox_ (1862), 5 Blatchf., 87; _Boucicault_ v. _Wood_ (1867), 7 Am. L. R., 550; 2 Bis., 34; _Daly_ v. _Walrath_ (1899), 40 App. Div. N. Y., 220; _Carte_ v. _Ford_ (1883), 15 Fed. Rep., 439; _Carte_ v. _Duff_ (1885), 25 Fed. Rep., 183; _Rees_ v. _Peltzer_ (1874), 75 Ill., 475; _Ewer_ v. _Coxe_ (1824), 4 Wash. C. C., 487. [1631] _Boucicault_ v. _Hart_ (1875), 13 Blatchf., 47; _Daly_ v. _Walrath_ (1899), 40 App. Div. N. Y., 220; _Carte_ v. _Ford_ (1883), 15 Fed. Rep., 439; _Carte_ v. _Duff_ (1885), 25 Fed. Rep., 183. [1632] _M'Lean_ v. _Fleming_ (1877), 96 U. S. Rep., 245; _Estes_ v. _Williams_ (1884), 21 Fed. Rep., 189; _Social Register_ v. _Howard_ (1894), 60 Fed. Rep., 270. [1633] _Harper_ v. _Holman_ (1897), 84 Fed. Rep., 224. [1634] _Social Register_ v. _Howard_ (1894), 60 Fed. Rep., 270. [1635] _Estes_ v. _Williams_ (1884), 21 Fed. Rep., 189; _Estes_ v. _Leslie_ (1886), 27 Fed. Rep., 22. [1636] _Aronson_ v. _Fleckenstein_ (1886), 28 Fed. Rep., 75. [1637] _Merriam_ v. _Holloway_ (1890), 43 Fed. Rep., 450; _Merriam_ v. _Famous Shoe_ (1891), 47 Fed. Rep., 411. [1638] Ibid. [1639] _Clemens_ v. _Belford_ (1883), 14 Fed. Rep., 728. [1640] _Clemens_ v. _Belford_ (1883), 14 Fed. Rep., 728; _Drummond_ v. _Altemus_ (1894), 60 Fed. Rep., 338. [1641] _Drummond_ v. _Altemus_ (1894), 60 Fed. Rep., 338. [1642] _Kipling_ v. _Fenno_ (1900), 106 Fed. Rep., 692. [1643] _Doan_ v. _American Book Co._ (1901), 105 Fed. Rep., 772. [1644] _Merriam_ v. _Famous Shoe_ (1891), 47 Fed. Rep., 411; _Merriam_ v. _Texas Siftings_ (1892), 49 Fed. Rep., 944. [1645] _Dodd_ v. _Smith_ (1891), 144 Pa., 340. [1646] _Black_ v. _Ehrich_ (1891), 44 Fed. Rep., 793. [1647] _Wheaton_ v. _Peters_ (1834), 8 Pet., 591; _Little_ v. _Hall_ (1855), 18 How., 165; _Bartlett_ v. _Crittenden_ (1847), 4 M'L., 301; _Palmer_ v. _De Witt_ (1872), 47 N. Y., 532. [1648] _Wheaton_ v. _Peters_ (1834), 8 Pet., 591; _Jones_ v. _Thoms_ (1843), 1 N. Y. Leg. Obs., 408; _French_ v. _Maguire_ (1878), 55 How. (N. Y.) Pr., 471; _Oertel_ v. _Wood_ (1870), 40 How. Pr., 10; _Oertel_ v. _Jacoby_ (1872), 44 How., 179; _Rees_ v. _Peltzer_ (1874), 75 Ill., 475; _Crowe_ v. _Aiken_ (1870), 2 Biss., 208; _Carte_ v. _Bailey_ (1874), 64 Maine, 458. [1649] _Wheaton_ v. _Peters_ (1834), 8 Pet., 591; _Palmer_ v. _De Witt_ (1872), 47 N. Y., 532; _Goldmark_ v. _Kreling_ (1885), 25 Fed. Rep., 349; _Daly_ v. _Walrath_ (1899), 40 App. Div. N. Y., 220; 28 Chic. Leg. News, 49. [1650] See p. 262, _supra_. [1651] _Parton_ v. _Prang_ (1872), 3 Cliff., 537. [1652] See p. 263, _supra_. [1653] _Oertel_ v. _Wood_ (1870), 40 How. Pr., 10; _Oertel_ v. _Jacoby_ (1872), 44 How. Pr., 179. [1654] _Tompkins_ v. _Halleck_ (1882), 133 Mass., 32; overruling _Keene_ v. _Kimball_ (1860), 16 Gray, 549; see _French_ v. _Maguire_ (1878), 55 How. (N. Y.) Pr., 471; _Crowe_ v. _Aiken_ (1870), 2 Biss., 208. [1655] _Palmer_ v. _De Witt_ (1872), 47 N. Y., 532. [1656] Act of March 3, 1891, sec. 9, amending Revised Statutes, 4967. [1657] _Press_ v. _Munroe_ (1896), 73 Fed. Rep., 196. [1658] _Palmer_ v. _De Witt_ (1872), 47 N. Y., 532. [1659] Ibid. [1660] _Parton_ v. _Prang_ (1872), 3 Cliff., 537. [1661] See pp. 152-4. [1662] Repealed by the Public Authorities Protection Act, 1893 (56 & 57 Vict. c. 61). [1663] Repealed by Stat. Law Rev. Act, 1867. [1664] Repealed by Stat. Law Rev. Act, 1887. [1665] Ibid. [1666] Repealed by Stat. Law Rev. Act, 1867. [1667] Ibid. [1668] Repealed by The Public Authorities Protection Act, 1893. [1669] See p. 61. [1670] 41 Geo. III., c. 107, extends the privileges of this Act to Dublin. [1671] See p. 61. [1672] See p. 61. [1673] This section is repealed by the Public Authorities Protection Act, 1893, and the provisions of that Act substituted therefor in so far as they may be held to apply. [1674] A "full and reasonable indemnity" is substituted by 5 & 6 Vict. c. 97, sec. 2. These words in the above section printed in italics were subsequently repealed by Stat. Law Rev. Act, 1861. [1675] See p. 161. [1676] See p. 162. [1677] A "full and reasonable indemnity" is substituted by 5 & 6 Vict. c. 97, sec. 2. [1678] Repealed Stat. Law Rev. Act, 1873 (1). [1679] Repealed Stat. Law Rev. Act, 1890 (2). [1680] See p. 123. [1681] See p. 139. [1682] See p. 135. [1683] See p. 126. [1684] See p. 142. [1685] A "full and reasonable indemnity" substituted by 5 & 6 Vict. c. 97, sec. 2. See p. 144. [1686] See p. 57. [1687] Repealed Stat. Law Rev. Act, 1890. [1688] Repealed Stat. Law Rev. Act, 1888 (2). [1689] 5 & 6 Vict. c. 97, sec. 2, substitutes "a full and reasonable indemnity." [1690] Repealed Stat. Law Rev. Act 1890 (2). See p. 13. [1691] Repealed Stat. Law Rev. Act, 1874 (2). [1692] See p. 10. [1693] See pp. 36, 148. [1694] See p. 12. [1695] See p. 123. [1696] See p. 74. [1697] See p. 38. [1698] See pp. 42, 62. [1699] Repealed Stat. Law Rev. Act, 1890 (2). [1700] See p. 119. [1701] Repealed Stat. Law Rev. Act, 1890 (2). [1702] See p. 55. [1703] See p. 56. [1704] See pp. 47, 49-53. [1705] See p. 53. [1706] See p. 46. [1707] See p. 78. [1708] See p. 54. [1709] Repealed Stat. Law Rev. Act, 1893 (1). [1710] Ibid. [1711] Ibid. [1712] Ibid. [1713] See p. 85. [1714] See pp. 75, 77, 118. [1715] See p. 92. [1716] See p. 91. [1717] Ibid. [1718] See p. 66. [1719] See p. 67. [1720] See p. 68. [1721] Ibid. [1722] There may be joint employers. See p. 71. [1723] See p. 71. [1724] See p. 72. [1725] See pp. 49-53. [1726] Repealed Stat. Law Rev. Act, 1890 (2). [1727] See p. 131. [1728] See p. 67. [1729] See p. 131. [1730] See p. 135. [1731] See p. 89. [1732] See p. 47. [1733] See p. 133. [1734] The whole of section 26 is repealed by the Public Authorities Protection Act, 1893, in so far as that Act applies. The result is probably that the first part of the section, printed in italics, is entirely repealed. The second part of the section is probably not repealed except in respect of actions against a person or body for acts done in performance of a public duty. [1735] See p. 91. [1736] Repealed Stat. Law Rev. Act, 1874. [1737] Repealed Stat. Law Rev. Act, 1891. [1738] Repealed Stat. Law Rev. Act, 1874 (2). [1739] Repealed International Copyright Act, 1886, sec. 12. [1740] Ibid. [1741] Ibid. [1742] See pp. 41, 128, 151, 162, 168. [1743] Repealed Stat. Law Rev. Act, 1874 (2). [1744] Usually known as The Foreign Reprints Act. See p. 187. [1745] Repealed Stat. Law Rev. Act, 1891. [1746] Repealed Stat. Law Rev. Act, 1875. [1747] Repealed; Patents, Designs, and Trade Marks Act, 1883. [1748] Ibid. [1749] Works produced in the following countries received protection under this Act. The dates appended are the dates of the respective Orders in Council: France, Order in Council, dispensed with; Prussia, Oct. 19, 1855; Belgium, Feb. 8, 1855; Italy, Sept. 9, 1865; Sardinia, Feb. 4, 1861; Spain, Sept. 24, 1857; Nov. 20, 1880. [1750] Secs. I.-V. repealed; Int. Copyright Act, 1886, sec. 12. [1751] Sec. VIII. is repealed: Int. Cop. Act, 1886, sec. 12. [1752] See p. 170. [1753] See p. 167. [1754] See p. 181. [1755] See p. 174. [1756] See p. 175. [1757] See p. 171. [1758] See p. 179. [1759] Ibid. [1760] See p. 180. [1761] Repealed Stat. Law Rev. Act, 1893 (1). [1762] Ibid. [1763] See p. 178. [1764] Repealed Stat. Law Rev. Act, 1893 (2). [1765] See p. 188. [1766] Repealed Stat. Law Rev. Act, 1893 (2). [1767] See p. 91. [1768] Repealed Stat. Law Rev. Act, 1898. [1769] See p. 131. [1770] Repealed Copyright (Musical Compositions) Act, 1888. [1771] Repealed Stat. Law Rev. Act, 1898. [1772] See p. 197. [1773] See pp. 40, 187, 191; 7 & 8 Vict. c. 12, sec. 19. [1774] See p. 186. [1775] Repealed Stat. Law Rev. Act, 1898. [1776] See p. 144. [1777] See p. 201. [1778] Those portions of the Convention printed in italics have been altered by the Additional Act of Paris, 1896. Norway, although a signatory of the Convention, has not acceded to the Additional Act. [1779] See paragraph 2 of Final Protocol. [1780] See paragraph 4 of Final Protocol. [1781] See paragraph 5 of Final Protocol. [1782] The following countries subsequently acceded to the Berne Convention and joined the Copyright Union. By various Orders in Council of the respective dates given hereunder the provisions of the International Copyright Acts and of the above Order in Council were extended to the acceding countries, viz.: Luxembourg, August 10, 1888; Monaco, October 15, 1889; Montenegro, May 11, 1893; Norway, August 1, 1896; Japan, August 8, 1899. Montenegro subsequently seceded August 9, 1899. [1783] All the Orders in Council under the International Copyright Acts, 1844 and 1852. [1784] The following countries subsequently acceded to the Additional Act of Paris. By Orders in Council of the respective dates given hereunder the provisions of the above Order in Council are extended to the acceding countries, viz.: Haiti, May 19, 1898; Japan, August 8, 1899. Montenegro subsequently seceded August 9, 1899. [1785] See p. 60. [1786] Not to include labels. Act of Congress, June 18, 1874, sec. 3. [1787] Amended section substituted by Act of Congress, March 3, 1891, sec. 1. [1788] Amended section substituted by Act of Congress, March 3, 1891, sec. 2. [1789] Omission to deposit copies, description, or photographs within the prescribed time could have been rectified by deposit before March 1, 1893: Act of Congress, March 3, 1893. [1790] Amended section substituted by Act of Congress, March 3, 1891, sec. 3. [1791] _Amended Act of Congress, June_ 18, 1874, _sec. 2._ [1792] Amended section substituted by Act of Congress, March 3, 1891, sec. 4. [1793] Amended section substituted by Act of Congress, March 3, 1891, sec. 5. [1794] Act of Congress, June 18, 1874, substitutes "upon some visible portion thereof, or of the substance upon which the same shall be mounted." Act of Congress, August 1, 1882, provides that in the case of designs for decorative articles the notice may be put on the back or bottom, &c. [1795] Act of Congress, June 18, 1874, provides an alternative form of notice. [1796] _Amended section substituted by Act of Congress, March 3, 1891, sec. 6._ Further amended section substituted by Act of Congress, March 3, 1897. [1797] Amended section substituted by Act of Congress, March 3, 1891, sec. 7. [1798] _Amended section substituted by Act of Congress, March 3, 1891, sec. 8._ Further amended section substituted by Act of Congress, March 2, 1895. [1799] Amended section substituted by Act of Congress, January 6, 1897. [1800] Amended section substituted by Act of Congress, March 3, 1891, sec. 9. [1801] Repealed by Act of Congress, March 3, 1891, sec. 10. [1802] Superseded by Act of Congress, March 3, 1891, sec. 4. [1803] Omission to deposit copies, description, or photographs within the prescribed time could have been rectified by deposit before March 1, 1893: Act of Congress, March 3, 1893. [1804] Amended section substituted by Act of Congress, March 3, 1897. [1805] Amended section substituted by Act of Congress, March 2, 1895. [Transcriber's Note: Inconsistent spelling as in the original. Punctuation normalised throughout.] 
2449	----	THE COMMON LAW By Oliver Wendell Holmes, Jr. Conventions: Numbers in square brackets (e.g. [245]) refer to original page numbers. Original footnotes were numbered page-by-page, and are collected at the end of the text. In the text, numbers in slashes (e.g./1/) refer to original footnote numbers. In the footnote section, a number such as 245/1 refers to (original) page 245, footnote 1. The footnotes are mostly citations to old English law reporters and to commentaries by writers such as Ihering, Bracton and Blackstone. I cannot give a source for decrypting the notation. There is quite a little Latin and some Greek in the original text. I have reproduced the Latin. The Greek text is omitted; its place is marked by the expression [Greek characters]. Italics and diacritical marks such as accents and cedillas are omitted and unmarked. Lecture X has two subheads--Successions After Death and Successions Inter Vivos. Lecture XI is also titled Successions Inter Vivos. This conforms to the original. LECTURE I. -- EARLY FORMS OF LIABILITY. [1] The object of this book is to present a general view of the Common Law. To accomplish the task, other tools are needed besides logic. It is something to show that the consistency of a system requires a particular result, but it is not all. The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation. But the most difficult labor will be to understand the combination of the two into new products at every stage. The substance of the law at any given time pretty nearly [2] corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past. In Massachusetts today, while, on the one hand, there are a great many rules which are quite sufficiently accounted for by their manifest good sense, on the other, there are some which can only be understood by reference to the infancy of procedure among the German tribes, or to the social condition of Rome under the Decemvirs. I shall use the history of our law so far as it is necessary to explain a conception or to interpret a rule, but no further. In doing so there are two errors equally to be avoided both by writer and reader. One is that of supposing, because an idea seems very familiar and natural to us, that it has always been so. Many things which we take for granted have had to be laboriously fought out or thought out in past times. The other mistake is the opposite one of asking too much of history. We start with man full grown. It may be assumed that the earliest barbarian whose practices are to be considered, had a good many of the same feelings and passions as ourselves. The first subject to be discussed is the general theory of liability civil and criminal. The Common Law has changed a good deal since the beginning of our series of reports, and the search after a theory which may now be said to prevail is very much a study of tendencies. I believe that it will be instructive to go back to the early forms of liability, and to start from them. It is commonly known that the early forms of legal procedure were grounded in vengeance. Modern writers [3] have thought that the Roman law started from the blood feud, and all the authorities agree that the German law begun in that way. The feud led to the composition, at first optional, then compulsory, by which the feud was bought off. The gradual encroachment of the composition may be traced in the Anglo-Saxon laws, /1/ and the feud was pretty well broken up, though not extinguished, by the time of William the Conqueror. The killings and house-burnings of an earlier day became the appeals of mayhem and arson. The appeals de pace et plagis and of mayhem became, or rather were in substance, the action of trespass which is still familiar to lawyers. /2/ But as the compensation recovered in the appeal was the alternative of vengeance, we might expect to find its scope limited to the scope of vengeance. Vengeance imports a feeling of blame, and an opinion, however distorted by passion, that a wrong has been done. It can hardly go very far beyond the case of a harm intentionally inflicted: even a dog distinguishes between being stumbled over and being kicked. Whether for this cause or another, the early English appeals for personal violence seem to have been confined to intentional wrongs. Glanvill /3/ mentions melees, blows, and wounds,--all forms of intentional violence. In the fuller description of such appeals given by Bracton /4/ it is made quite clear that they were based on intentional assaults. The appeal de pace et plagis laid an intentional assault, described the nature of the arms used, and the length and depth of the wound. The appellor also had [4] to show that he immediately raised the hue and cry. So when Bracton speaks of the lesser offences, which were not sued by way of appeal, he instances only intentional wrongs, such as blows with the fist, flogging, wounding, insults, and so forth. /1/ The cause of action in the cases of trespass reported in the earlier Year Books and in the Abbreviatio Plaeitorum is always an intentional wrong. It was only at a later day, and after argument, that trespass was extended so as to embrace harms which were foreseen, but which were not the intended consequence of the defendant's act. /2/ Thence again it extended to unforeseen injuries. /3/ It will be seen that this order of development is not quite consistent with an opinion which has been held, that it was a characteristic of early law not to penetrate beyond the external visible fact, the damnum corpore corpori datum. It has been thought that an inquiry into the internal condition of the defendant, his culpability or innocence, implies a refinement of juridical conception equally foreign to Rome before the Lex Aquilia, and to England when trespass took its shape. I do not know any very satisfactory evidence that a man was generally held liable either in Rome /4/ or England for the accidental consequences even of his own act. But whatever may have been the early law, the foregoing account shows the starting-point of the system with which we have to deal. Our system of private liability for the consequences of a man's own acts, that is, for his trespasses, started from the notion of actual intent and actual personal culpability. The original principles of liability for harm inflicted by [5] another person or thing have been less carefully considered hitherto than those which governed trespass, and I shall therefore devote the rest of this Lecture to discussing them. I shall try to show that this liability also had its root in the passion of revenge, and to point out the changes by which it reached its present form. But I shall not confine myself strictly to what is needful for that purpose, because it is not only most interesting to trace the transformation throughout its whole extent, but the story will also afford an instructive example of the mode in which the law has grown, without a break, from barbarism to civilization. Furthermore, it will throw much light upon some important and peculiar doctrines which cannot be returned to later. A very common phenomenon, and one very familiar to the student of history, is this. The customs, beliefs, or needs of a primitive time establish a rule or a formula. In the course of centuries the custom, belief, or necessity disappears, but the rule remains. The reason which gave rise to the rule has been forgotten, and ingenious minds set themselves to inquire how it is to be accounted for. Some ground of policy is thought of, which seems to explain it and to reconcile it with the present state of things; and then the rule adapts itself to the new reasons which have been found for it, and enters on a new career. The old form receives a new content, and in time even the form modifies itself to fit the meaning which it has received. The subject under consideration illustrates this course of events very clearly. I will begin by taking a medley of examples embodying as many distinct rules, each with its plausible and seemingly sufficient ground of policy to explain it. [6] A man has an animal of known ferocious habits, which escapes and does his neighbor damage. He can prove that the animal escaped through no negligence of his, but still he is held liable. Why? It is, says the analytical jurist, because, although he was not negligent at the moment of escape, he was guilty of remote heedlessness, or negligence, or fault, in having such a creature at all. And one by whose fault damage is done ought to pay for it. A baker's man, while driving his master's cart to deliver hot rolls of a morning, runs another man down. The master has to pay for it. And when he has asked why he should have to pay for the wrongful act of an independent and responsible being, he has been answered from the time of Ulpian to that of Austin, that it is because he was to blame for employing an improper person. If he answers, that he used the greatest possible care in choosing his driver, he is told that that is no excuse; and then perhaps the reason is shifted, and it is said that there ought to be a remedy against some one who can pay the damages, or that such wrongful acts as by ordinary human laws are likely to happen in the course of the service are imputable to the service. Next, take a case where a limit has been set to liability which had previously been unlimited. In 1851, Congress passed a law, which is still in force, and by which the owners of ships in all the more common cases of maritime loss can surrender the vessel and her freight then pending to the losers; and it is provided that, thereupon, further proceedings against the owners shall cease. The legislators to whom we owe this act argued that, if a merchant embark a portion of his property upon a hazardous venture, it is reasonable that his stake should be confined to what [7] he puts at risk,--a principle similar to that on which corporations have been so largely created in America during the last fifty years. It has been a rule of criminal pleading in England down into the present century, that an indictment for homicide must set forth the value of the instrument causing the death, in order that the king or his grantee might claim forfeiture of the deodand, "as an accursed thing," in the language of Blackstone. I might go on multiplying examples; but these are enough to show the remoteness of the points to be brought together.--As a first step towards a generalization, it will be necessary to consider what is to be found in ancient and independent systems of law. There is a well-known passage in Exodus, /1/ which we shall have to remember later: "If an ox gore a man or a woman, that they die: then the ox shall be surely stoned, and his flesh shall not be eaten; but the owner of the ox shall be quit." When we turn from the Jews to the Greeks, we find the principle of the passage just quoted erected into a system. Plutarch, in his Solon, tells us that a dog that had bitten a man was to be delivered up bound to a log four cubits long. Plato made elaborate provisions in his Laws for many such cases. If a slave killed a man, he was to be given up to the relatives of the deceased. /2/ If he wounded a man, he was to be given up to the injured party to use him as he pleased. /3/ So if he did damage to which the injured party did not contribute as a joint cause. In either case, if the owner [8] failed to surrender the slave, he was bound to make good the loss. /1/ If a beast killed a man, it was to be slain and cast beyond the borders. If an inanimate thing caused death, it was to be cast beyond the borders in like manner, and expiation was to be made. /2/ Nor was all this an ideal creation of merely imagined law, for it was said in one of the speeches of Aeschines, that "we banish beyond our borders stocks and stones and steel, voiceless and mindless things, if they chance to kill a man; and if a man commits suicide, bury the hand that struck the blow afar from its body." This is mentioned quite as an every-day matter, evidently without thinking it at all extraordinary, only to point an antithesis to the honors heaped upon Demosthenes. /3/ As late as the second century after Christ the traveller Pausanias observed with some surprise that they still sat in judgment on inanimate things in the Prytaneum. /4/ Plutarch attributes the institution to Draco. /5/ In the Roman law we find the similar principles of the noxoe deditio gradually leading to further results. The Twelve Tables (451 B.C.) provided that, if an animal had done damage, either the animal was to be surrendered or the damage paid for. /6/ We learn from Gains that the same rule was applied to the torts of children or slaves, /7/ and there is some trace of it with regard to inanimate things. The Roman lawyers, not looking beyond their own [9] system or their own time, drew on their wits for an explanation which would show that the law as they found it was reasonable. Gaius said that it was unjust that the fault of children or slaves should be a source of loss to their parents or owners beyond their own bodies, and Ulpian reasoned that a fortiori this was true of things devoid of life, and therefore incapable of fault. /1/ This way of approaching the question seems to deal with the right of surrender as if it were a limitation of a liability incurred by a parent or owner, which would naturally and in the first instance be unlimited. But if that is what was meant, it puts the cart before the horse. The right of surrender was not introduced as a limitation of liability, but, in Rome and Greece alike, payment was introduced as the alternative of a failure to surrender. The action was not based, as it would be nowadays, on the fault of the parent or owner. If it had been, it would always have been brought against the person who had control of the slave or animal at the time it did the harm complained of, and who, if any one, was to blame for not preventing the injury. So far from this being the course, the person to be sued was the owner at the time of suing. The action followed the guilty thing into whosesoever hands it came. /2/ And in curious contrast with the principle as inverted to meet still more modern views of public policy, if the animal was of a wild nature, that is, in the very case of the most ferocious animals, the owner ceased to be liable the moment it escaped, because at that moment he ceased to be owner. /3/ There [10] seems to have been no other or more extensive liability by the old law, even where a slave was guilty with his master's knowledge, unless perhaps he was a mere tool in his master's hands. /1/ Gains and Ulpian showed an inclination to cut the noxoe deditio down to a privilege of the owner in case of misdeeds committed without his knowledge; but Ulpian is obliged to admit, that by the ancient law, according to Celsus, the action was noxal where a slave was guilty even with the privity of his master. /2/ All this shows very clearly that the liability of the owner was merely a way of getting at the slave or animal which was the immediate cause of offence. In other words, vengeance on the immediate offender was the object of the Greek and early Roman process, not indemnity from the master or owner. The liability of the owner was simply a liability of the offending thing. In the primitive customs of Greece it was enforced by a judicial process expressly directed against the object, animate or inanimate. The Roman Twelve Tables made the owner, instead of the thing itself, the defendant, but did not in any way change the ground of liability, or affect its limit. The change was simply a device to allow the owner to protect his interest. /3/ But it may be asked how inanimate objects came to be [11] pursued in this way, if the object of the procedure was to gratify the passion of revenge. Learned men have been ready to find a reason in the personification of inanimate nature common to savages and children, and there is much to confirm this view. Without such a personification, anger towards lifeless things would have been transitory, at most. It is noticeable that the commonest example in the most primitive customs and laws is that of a tree which falls upon a man, or from which he falls and is killed. We can conceive with comparative ease how a tree might have been put on the same footing with animals. It certainly was treated like them, and was delivered to the relatives, or chopped to pieces for the gratification of a real or simulated passion. /1/ In the Athenian process there is also, no doubt, to be traced a different thought. Expiation is one of the ends most insisted on by Plato, and appears to have been the purpose of the procedure mentioned by Aeschines. Some passages in the Roman historians which will be mentioned again seem to point in the same direction. /2/ Another peculiarity to be noticed is, that the liability seems to have been regarded as attached to the body doing the damage, in an almost physical sense. An untrained intelligence only imperfectly performs the analysis by which jurists carry responsibility back to the beginning of a chain of causation. The hatred for anything giving us pain, which wreaks itself on the manifest cause, and which leads even civilized man to kick a door when it pinches his finger, is embodied in the noxoe deditio and [12] other kindred doctrines of early Roman law. There is a defective passage in Gaius, which seems to say that liability may sometimes be escaped by giving up even the dead body of the offender. /1/ So Livy relates that, Brutulus Papins having caused a breach of truce with the Romans, the Samnites determined to surrender him, and that, upon his avoiding disgrace and punishment by suicide, they sent his lifeless body. It is noticeable that the surrender seems to be regarded as the natural expiation for the breach of treaty, /2/ and that it is equally a matter of course to send the body when the wrong-doer has perished. /3/ The most curious examples of this sort occur in the region of what we should now call contract. Livy again furnishes an example, if, indeed, the last is not one. The Roman Consul Postumius concluded the disgraceful peace of the Caudine Forks (per sponsionem, as Livy says, denying the common story that it was per feedus), and he was sent to Rome to obtain the sanction of the people. When there however, he proposed that the persons who had made the [13] contract, including himself, should be given up in satisfaction of it. For, he said, the Roman people not having sanctioned the agreement, who is so ignorant of the jus fetialium as not to know that they are released from obligation by surrendering us? The formula of surrender seems to bring the case within the noxoe deditio. /1/ Cicero narrates a similar surrender of Mancinus by the pater-patratus to the Numantines, who, however, like the Samnites in the former case, refused to receive him. /2/ It might be asked what analogy could have been found between a breach of contract and those wrongs which excite the desire for vengeance. But it must be remembered that the distinction between tort and breaches of contract, and especially between the remedies for the two, is not found ready made. It is conceivable that a procedure adapted to redress for violence was extended to other cases as they arose. Slaves were surrendered for theft as well as [14] for assault; /1/ and it is said that a debtor who did not pay his debts, or a seller who failed to deliver an article for which he had been paid, was dealt with on the same footing as a thief. /2/ This line of thought, together with the quasi material conception of legal obligations as binding the offending body, which has been noticed, would perhaps explain the well-known law of the Twelve Tables as to insolvent debtors. According to that law, if a man was indebted to several creditors and insolvent, after certain formalities they might cut up his body and divide it among them. If there was a single creditor, he might put his debtor to death or sell him as a slave. /3/ If no other right were given but to reduce a debtor to slavery, the law might be taken to look only to compensation, and to be modelled on the natural working of self-redress. /4/ The principle of our own law, that taking a man's body on execution satisfies the debt, although he is not detained an hour, seems to be explained in that way. But the right to put to death looks like vengeance, and the division of the body shows that the debt was conceived very literally to inhere in or bind the body with a vinculum juris. Whatever may be the true explanation of surrender in connection with contracts, for the present purpose we need not go further than the common case of noxoe deditio for wrongs. Neither is the seeming adhesion of liability to the very body which did the harm of the first importance. [15] The Roman law dealt mainly with living creatures,--with animals and slaves. If a man was run over, it did not surrender the wagon which crushed him, but the ox which drew the wagon. /1/ At this stage the notion is easy to understand. The desire for vengeance may be felt as strongly against a slave as against a freeman, and it is not without example nowadays that a like passion should be felt against an animal. The surrender of the slave or beast empowered the injured party to do his will upon them. Payment by the owner was merely a privilege in case he wanted to buy the vengeance off. It will readily be imagined that such a system as has been described could not last when civilization had advanced to any considerable height. What had been the privilege of buying off vengeance by agreement, of paying the damage instead of surrendering the body of the offender, no doubt became a general custom. The Aquilian law, passed about a couple of centuries later than the date of the Twelve Tables, enlarged the sphere of compensation for bodily injuries. Interpretation enlarged the Aquilian law. Masters became personally liable for certain wrongs committed by their slaves with their knowledge, where previously they were only bound to surrender the slave. /2/ If a pack-mule threw off his burden upon a passer-by because he had been improperly overloaded, or a dog which might have been restrained escaped from his master and bit any one, the old noxal action, as it was called, gave way to an action under the new law to enforce a general personal liability. /3/ Still later, ship-owners and innkeepers were made liable [16] as if they were wrong-doers for wrongs committed by those in their employ on board ship or in the tavern, although of course committed without their knowledge. The true reason for this exceptional responsibility was the exceptional confidence which was necessarily reposed in carriers and innkeepers. /1/ But some of the jurists, who regarded the surrender of children and slaves as a privilege intended to limit liability, explained this new liability on the ground that the innkeeper or ship-owner was to a certain degree guilty of negligence in having employed the services of bad men? This was the first instance of a master being made unconditionally liable for the wrongs of his servant. The reason given for it was of general application, and the principle expanded to the scope of the reason. The law as to ship-owners and innkeepers introduced another and more startling innovation. It made them responsible when those whom they employed were free, as well as when they were slaves. /3/ For the first time one man was made answerable for the wrongs of another who was also answerable himself, and who had a standing before the law. This was a great change from the bare permission to ransom one's slave as a privilege. But here we have the history of the whole modern doctrine of master and servant, and principal and agent. All servants are now as free and as liable to a suit as their masters. Yet the principle introduced on special grounds in a special case, when servants were slaves, is now the general law of this country and England, and under it men daily have to pay large sums for other people's acts, in which they had no part and [17] for which they are in no sense to blame. And to this day the reason offered by the Roman jurists for an exceptional rule is made to justify this universal and unlimited responsibility. /1/ So much for one of the parents of our common law. Now let us turn for a moment to the Teutonic side. The Salic Law embodies usages which in all probability are of too early a date to have been influenced either by Rome or the Old Testament. The thirty-sixth chapter of the ancient text provides that, if a man is killed by a domestic animal, the owner of the animal shall pay half the composition (which he would have had to pay to buy off the blood feud had he killed the man himself), and for the other half give up the beast to the complainant. /2/ So, by chapter thirty-five, if a slave killed a freeman, he was to be surrendered for one half of the composition to the relatives of the slain man, and the master was to pay the other half. But according to the gloss, if the slave or his master had been maltreated by the slain man or his relatives, the master had only to surrender the slave. /3/ It is interesting to notice that those Northern sources which Wilda takes to represent a more primitive stage of German law confine liability for animals to surrender alone. /4/ There is also a trace of the master's having been able to free himself in some cases, at a later date, by showing that the slave was no longer in [18] his possession. /1/ There are later provisions making a master liable for the wrongs committed by his slave by his command. /2/ In the laws adapted by the Thuringians from the earlier sources, it is provided in terms that the master is to pay for all damage done by his slaves. /4/ In short, so far as I am able to trace the order of development in the customs of the German tribes, it seems to have been entirely similar to that which we have already followed in the growth of Roman law. The earlier liability for slaves and animals was mainly confined to surrender; the later became personal, as at Rome. The reader may begin to ask for the proof that all this has any bearing on our law of today. So far as concerns the influence of the Roman law upon our own, especially the Roman law of master and servant, the evidence of it is to be found in every book which has been written for the last five hundred years. It has been stated already that we still repeat the reasoning of the Roman lawyers, empty as it is, to the present day. It will be seen directly whether the German folk-laws can also be followed into England. In the Kentish laws of Hlothhaere and Eadrie (A.D. 680) [19] it is said, "If any one's slave slay a freeman, whoever it be, let the owner pay with a hundred shillings, give up the slayer," &c. /1/ There are several other similar provisions. In the nearly contemporaneous laws of Ine, the surrender and payment are simple alternatives. "If a Wessex slave slay an Englishman, then shall he who owns him deliver him up to the lord and the kindred, or give sixty shillings for his life." /2/ Alfred's laws (A.D. 871-901) have a like provision as to cattle. "If a neat wound a man, let the neat be delivered up or compounded for." /3/ And Alfred, although two hundred years later than the first English lawgivers who have been quoted, seems to have gone back to more primitive notions than we find before his time. For the same principle is extended to the case of a tree by which a man is killed. "If, at their common work, one man slay another unwilfully, let the tree be given to the kindred, and let them have it off the land within thirty nights. Or let him take possession of it who owns the wood." /4/ It is not inapposite to compare what Mr. Tylor has mentioned concerning the rude Kukis of Southern Asia. "If a tiger killed a Kuki, his family were in disgrace till they had retaliated by killing and eating this tiger, or another; but further, if a man was killed by a fall from a tree, his relatives would take their revenge by cutting the tree down, and scattering it in chips." /5/ To return to the English, the later laws, from about a hundred years after Alfred down to the collection known as the laws of Henry I, compiled long after the Conquest, [20] increase the lord's liability for his household, and make him surety for his men's good conduct. If they incur a fine to the king and run away, the lord has to pay it unless he can clear himself of complicity. But I cannot say that I find until a later period the unlimited liability of master for servant which was worked out on the Continent, both by the German tribes and at Rome. Whether the principle when established was an indigenous growth, or whether the last step was taken under the influence of the Roman law, of which Bracton made great use, I cannot say. It is enough that the soil was ready for it, and that it took root at an early day. /1/ This is all that need be said here with regard to the liability of a master for the misdeeds of his servants. It is next to be shown what became of the principle as applied to animals. Nowadays a man is bound at his peril to keep his cattle from trespassing, and he is liable for damage done by his dog or by any fierce animal, if he has notice of a tendency in the brute to do the harm complained of. The question is whether any connection can be established between these very sensible and intelligible rules of modern law and the surrender directed by King Alfred. Let us turn to one of the old books of the Scotch law, where the old principle still appears in full force and is stated with its reasons as then understood, /2/ "Gif ane wylde or head-strang horse, carries ane man [21] against his will over an craig, or heuch, or to the water, and the man happin to drowne, the horse sall perteine to the king as escheit. "Bot it is otherwise of ane tame and dantoned horse; gif any man fulishlie rides, and be sharp spurres compelles his horse to take the water, and the man drownes, the horse sould not be escheit, for that comes be the mans fault or trespasse, and not of the horse, and the man has receaved his punishment, in sa farre as he is perished and dead; and the horse quha did na fault, sould not be escheit. "The like reason is of all other beastes, quhilk slayes anie man, [it is added in a later work, "of the quhilk slaughter they haue gilt,"] for all these beasts sould be escheit." /1/ "The Forme and Maner of Baron Courts" continues as follows:-- "It is to witt, that this question is asked in the law, Gif ane lord hes ane milne, and any man fall in the damne, and be borne down with the water quhill he comes to the quheill, and there be slaine to death with the quheill; quhither aught the milne to be eseheir or not? The law sayes thereto nay, and be this reason, For it is ane dead thing, and ane dead thing may do na fellony, nor be made escheit throw their gilt. Swa the milne in this case is not culpable, and in the law it is lawfull to the lord of the land to haue ane mylne on his awin water quhere best likes him." /2/ The reader will see in this passage, as has been remarked already of the Roman law, that a distinction is taken between things which are capable of guilt and those which [22] are not,--between living and dead things; but he will also see that no difficulty was felt in treating animals as guilty. Take next an early passage of the English law, a report of what was laid down by one of the English judges. In 1333 it was stated for law, that, "if my dog kills your sheep, and I, freshly after the fact, tender you the dog, you are without recovery against me." /1/ More than three centuries later, in 1676, it was said by Twisden, J. that, "if one hath kept a tame fox, which gets loose and grows wild, he that hath kept him before shall not answer for the damage the fox doth after he hath lost him, and he hath resumed his wild nature." /2/ It is at least doubtful whether that sentence ever would have been written but for the lingering influence of the notion that the ground of the owner's liability was his ownership of the offending: thing and his failure to surrender it. When the fox escaped, by another principle of law the ownership was at an end. In fact, that very consideration was seriously pressed in England as late as 1846, with regard to a monkey which escaped and bit the plaintiff, /3/ So it seems to be a reasonable conjecture, that it was this way of thinking which led Lord Holt, near the beginning of the last century, to intimate that one ground on which a man is bound at his peril to restrain cattle from trespassing is that he has valuable property in such animals, whereas he has not dogs, for which his responsibility is less. /4/ To this day, in fact, cautious judges state the law as to cattle to be, that, "if I am the owner of an animal in which by law the [23] right of property can exist, I am bound to take care that it does not stray into the land of my neighbor." /1/ I do not mean that our modern law on this subject is only a survival, and that the only change from primitive notions was to substitute the owner for the offending animal. For although it is probable that the early law was one of the causes which led to the modern doctrine, there has been too much good sense in every stage of our law to adopt any such sweeping consequences as would follow from the wholesale transfer of liability supposed. An owner is not bound at his peril to keep his cattle from harming his neighbor's person. /2/ And in some of the earliest instances of personal liability, even for trespass on a neighbor's land, the ground seems to have been the owner's negligence. /3/ It is the nature of those animals which the common law recognizes as the subject of ownership to stray, and when straying to do damage by trampling down and eating crops. At the same time it is usual and easy to restrain them. On the other hand, a dog, which is not the subject of property, does no harm by simply crossing the land of others than its owner. Hence to this extent the new law might have followed the old. The right of property in the [24] offending animal, which was the ancient ground of responsibility, might have been adopted safely enough as the test of a liability based on the fault of the owner. But the responsibility for damage of a kind not to be expected from such animals is determined on grounds of policy comparatively little disturbed by tradition. The development of personal liability for fierce wild animals at Rome has been explained. Our law seems to have followed the Roman. We will now follow the history of that branch of the primitive notion which was least likely to survive,--the liability of inanimate things. It will be remembered that King Alfred ordained the surrender of a tree, but that the later Scotch law refused it because a dead thing could not have guilt. It will be remembered, also, that the animals which the Scotch law forfeited were escheat to the king. The same thing has remained true in England until well into this century, with regard even to inanimate objects. As long ago as Bracton, /1/ in case a man was slain, the coroner was to value the object causing the death, and that was to be forfeited sa deodand "pro rege." It was to be given to God, that is to say to the Church, for the king, to be expended for the good of his soul. A man's death had ceased to be the private affair of his friends as in the time of the barbarian folk-laws. The king, who furnished the court, now sued for the penalty. He supplanted the family in the claim on the guilty thing, and the Church supplanted him. In Edward the First's time some of the cases remind of the barbarian laws at their rudest stage. If a man fell from a tree, the tree was deodand. /2/ If he drowned in a [25] well, the well was to be filled up. /1/ It did not matter that the forfeited instrument belonged to an innocent person. "Where a man killeth another with the sword of John at Stile, the sword shall be forfeit as deodand, and yet no default is in the owner." /2/ That is from a book written in the reign of Henry VIII., about 1530. And it has been repeated from Queen Elizabeth's time /3/ to within one hundred years, /4/ that if my horse strikes a man, and afterwards I sell my horse, and after that the man dies, the horse shall be forfeited. Hence it is, that, in all indictments for homicide, until very lately it has been necessary to state the instrument causing the death and its value, as that the stroke was given by a certain penknife, value sixpence, so as to secure the forfeiture. It is said that a steam-engine has been forfeited in this way. I now come to what I regard as the most remarkable transformation of this principle, and one which is a most important factor in our law as it is today. I must for the moment leave the common law and take up the doctrines of the Admiralty. In the early books which have just been referred to, and long afterwards, the fact of motion is adverted to as of much importance. A maxim of Henry Spigurnel, a judge in the time of Edward I., is reported, that "where a man is killed by a cart, or by the fall of a house, or in other like manner, and the thing in motion is the cause of the death, it shall be deodand." /5/ So it was [26] said in the next reign that "oinne illud quod mover cum eo quod occidit homines deodandum domino Regi erit, vel feodo clerici." /1/ The reader sees how motion gives life to the object forfeited. The most striking example of this sort is a ship. And accordingly the old books say that, if a man falls from a ship and is drowned, the motion of the ship must be taken to cause the death, and the ship is forfeited,--provided, however, that this happens in fresh water. /2/ For if the death took place on the high seas, that was outside the ordinary jurisdiction. This proviso has been supposed to mean that ships at sea were not forfeited; /3/ but there is a long series of petitions to the king in Parliament that such forfeitures may be done away with, which tell a different story. /4/ The truth seems to be that the forfeiture took place, but in a different court. A manuscript of the reign of Henry VI., only recently printed, discloses the fact that, if a man was killed or drowned at sea by the motion of the ship, the vessel was forfeited to the admiral upon a proceeding in the admiral's court, and subject to release by favor of the admiral or the king. /5/ A ship is the most living of inanimate things. Servants sometimes say "she" of a clock, but every one gives a gender to vessels. And we need not be surprised, therefore, to find a mode of dealing which has shown such extraordinary vitality in the criminal law applied with even more striking thoroughness in the Admiralty. It is only by supposing [27] the ship to have been treated as if endowed with personality, that the arbitrary seeming peculiarities of the maritime law can be made intelligible, and on that supposition they at once become consistent and logical. By way of seeing what those peculiarities are, take first a case of collision at sea. A collision takes place between two vessels, the Ticonderoga and the Melampus, through the fault of the Ticonderoga alone. That ship is under a lease at the time, the lessee has his own master in charge, and the owner of the vessel has no manner of control over it. The owner, therefore, is not to blame, and he cannot even be charged on the ground that the damage was done by his servants. He is free from personal liability on elementary principles. Yet it is perfectly settled that there is a lien on his vessel for the amount of the damage done, /1/ and this means that that vessel may be arrested and sold to pay the loss in any admiralty court whose process will reach her. If a livery-stable keeper lets a horse and wagon to a customer, who runs a man down by careless driving, no one would think of claiming a right to seize the horse and wagon. It would be seen that the only property which could be sold to pay for a wrong was the property of the wrong-doer. But, again, suppose that the vessel, instead of being under lease, is in charge of a pilot whose employment is made compulsory by the laws of the port which she is just entering. The Supreme Court of the United States holds the ship liable in this instance also. /2/ The English courts would probably have decided otherwise, and the matter is settled in England by legislation. But there the court of appeal, the Privy Council, has been largely composed of common-law [28]lawyers, and it has shown a marked tendency to assimilate common-law doctrine. At common law one who could not impose a personal liability on the owner could not bind a particular chattel to answer for a wrong of which it had been the instrument. But our Supreme Court has long recognized that a person may bind a ship, when he could not bind the owners personally, because he was not the agent. It may be admitted that, if this doctrine were not supported by an appearance of good sense, it would not have survived. The ship is the only security available in dealing with foreigners, and rather than send one's own citizens to search for a remedy abroad in strange courts, it is easy to seize the vessel and satisfy the claim at home, leaving the foreign owners to get their indemnity as they may be able. I dare say some such thought has helped to keep the practice alive, but I believe the true historic foundation is elsewhere. The ship no doubt, like a sword would have been forfeited for causing death, in whosesoever hands it might have been. So, if the master and mariners of a ship, furnished with letters of reprisal, committed piracy against a friend of the king, the owner lost his ship by the admiralty law, although the crime was committed without his knowledge or assent. /2/ It seems most likely that the principle by which the ship was forfeited to the king for causing death, or for piracy, was the same as that by which it was bound to private sufferers for other damage, in whose hands soever it might have been when it did the harm. If we should say to an uneducated man today, "She did it and she ought to pay for it," it may be doubted [29] whether he would see the fallacy, or be ready to explain that the ship was only property, and that to say, "The ship has to pay for it," /1/ was simply a dramatic way of saying that somebody's property was to be sold, and the proceeds applied to pay for a wrong committed by somebody else. It would seem that a similar form of words has been enough to satisfy the minds of great lawyers. The following is a passage from a judgment by Chief Justice Marshall, which is quoted with approval by Judge Story in giving the opinion of the Supreme Court of the United States: "This is not a proceeding against the owner; it is a proceeding against the vessel for an offence committed by the vessel; which is not the less an offence, and does not the less subject her to forfeiture, because it was committed without the authority and against the will of the owner. It is true that inanimate matter can commit no offence. But this body is animated and put in action by the crew, who are guided by the master. The vessel acts and speaks by the master. She reports herself by the master. It is, therefore, not unreasonable that the vessel should be affected by this report." And again Judge Story quotes from another case: "The thing is here primarily considered as the offender, or rather the offence is primarily attached to the thing." /2/ In other words, those great judges, although of course aware that a ship is no more alive than a mill-wheel, thought that not only the law did in fact deal with it as if it were alive, but that it was reasonable that the law should do so. The reader will observe that they do not say simply that it is reasonable on grounds of policy to [30] sacrifice justice to the owner to security for somebody else but that it is reasonable to deal with the vessel as an offending thing. Whatever the hidden ground of policy may be, their thought still clothes itself in personifying language. Let us now go on to follow the peculiarities of the maritime law in other directions. For the cases which have been stated are only parts of a larger whole. By the maritime law of the Middle Ages the ship was not only the source, but the limit, of liability. The rule already prevailed, which has been borrowed and adopted by the English statutes and by our own act of Congress of 1851, according to which the owner is discharged from responsibility for wrongful acts of a master appointed by himself upon surrendering his interest in the vessel and the freight which she had earned. By the doctrines of agency he would be personally liable for the whole damage. If the origin of the system of limited liability which is believed to be so essential to modern commerce is to be attributed to those considerations of public policy on which it would now be sustained, that system has nothing to do with the law of collision. But if the limit of liability here stands on the same ground as the noxoe deditio, confirms the explanation already given of the liability of the ship for wrongs done by it while out of the owner's hands, and conversely existence of that liability confirms the argument here. Let us now take another rule, for which, as usual, there is a plausible explanation of policy. Freight, it is said, the mother of wages; for, we are told, "if the ship perished, [31] if the mariners were to have their wages in such cases, they would not use their endeavors, nor hazard their lives, for the safety of the ship." /1/ The best commentary on this reasoning is, that the law has recently been changed by statute. But even by the old law there was an exception inconsistent with the supposed reason. In case of shipwreck, which was the usual case of a failure to earn freight, so long as any portion of the ship was saved, the lien of the mariners remained. I suppose it would have been said, because it was sound policy to encourage them to save all they could. If we consider that the sailors were regarded as employed by the ship, we shall understand very readily both the rule and the exception. "The ship is the debtor," as was said in arguing a case decided in the time of William III. /2/ If the debtor perished, there was an end of the matter. If a part came ashore, that might be proceeded against. Even the rule in its modern form, that freight is the mother of wages, is shown by the explanation commonly given to have reference to the question whether the ship is lost or arrive safe. In the most ancient source of the maritime law now extant, which has anything about the matter, so far as I have been able to discover, the statement is that the mariners will lose their wages when the ship is lost. /3/ In like manner, in what is said by its English [32] editor, Sir Travers Twiss, to be the oldest part of the Consulate of the Sea, /1/ we read that "whoever the freighter may be who runs away or dies, the ship is bound to pay: the mariners." /2/ I think we may assume that the vessel was bound by the contract with the sailors, much in the same way as it was by the wrongs for which it was answerable, just as the debtor's body was answerable for his debts, as well as for his crimes, under the ancient law of Rome. The same thing is true of other maritime dealings with the vessel, whether by way of contract or otherwise. If salvage service is rendered to a vessel, the admiralty court will hold the vessel, although it has been doubted whether an action of contract would lie, if the owners were sued at law. So the ship is bound by the master's contract to carry cargo, just as in case of collision, although she was under lease at the time. In such cases, also, according to our Supreme Court, the master may bind the vessel when he cannot bind the general owners. /4/ "By custom the ship is bound to the merchandise, and the merchandise to the ship." /5/ "By the maritime law every contract of the master implies an hypothecation." /6/ It might be urged, no doubt, with force, that, so far as the usual maritime contracts are concerned, the dealing must be on the security of the ship or merchandise in many cases, and therefore [33] that it is policy to give this security in all cases; that the risk to which it subjects ship-owners is calculable, and that they must take it into account when they let their vessels. Again, in many cases, when a party asserts a maritime lien by way of contract, he has improved the condition of the thing upon which the lien is claimed, and this has been recognized as a ground for such a lien in some systems. But this is not true universally, nor in the most important cases. It must be left to the reader to decide whether ground has not been shown for believing that the same metaphysical confusion which naturally arose as to the ship's wrongful acts, affected the way of thinking as to her contracts. The whole manner of dealing with vessels obviously took the form which prevailed in the eases first mentioned. Pardessus, a high authority, says that the lien for freight prevails even against the owner of stolen goods, "as the master deals less with the person than the thing." /2/ So it was said in the argument of a famous English case, that "the ship is instead of the owner, and therefore is answerable." /3/ In many cases of contract, as well as tort, the vessel was not only the security for the debt, but the limit of the owner's liability. The principles of the admiralty are embodied in its form of procedure. A suit may be brought there against a vessel by name, any person interested in it being at liberty to come in and defend, but the suit, if successful, ending in a sale of the vessel and a payment of the plaintiff's claim out of the proceeds. As long ago as the time of James I. it was said that "the libel ought to be only [34] against the ship and goods, and not against the party." /1/ And authority for the statement was cited from the reign of Henry VI., the same reign when, as we have seen, the Admiral claimed a forfeiture of ships for causing death. I am bound to say, however, that I cannot find such an authority of that date. We have now followed the development of the chief forms of liability in modern law for anything other than the immediate and manifest consequences of a man's own acts. We have seen the parallel course of events in the two parents,--the Roman law and the German customs, and in the offspring of those two on English soil with regard to servants, animals, and inanimate things. We have seen a single germ multiplying and branching into products as different from each other as the flower from the root. It hardly remains to ask what that germ was. We have seen that it was the desire of retaliation against the offending thing itself. Undoubtedly, it might be argued that many of the rules stated were derived from a seizure of the offending thing as security for reparation, at first, perhaps, outside the law. That explanation, as well as the one offered here; would show that modern views of responsibility had not yet been attained, as the owner of the thing might very well not have been the person in fault. But such has not been the view of those most competent to judge. A consideration of the earliest instances will show, as might have been expected, that vengeance, not compensation, and vengeance on the offending thing, was the original object. The ox in Exodus was to be stoned. The axe in the Athenian law was to be banished. The tree, in Mr. Tylor's instance, was to be chopped to pieces. The [35] slave under all the systems was to be surrendered to the relatives of the slain man, that they might do with him what they liked. /1/ The deodand was an accursed thing. The original limitation of liability to surrender, when the owner was before the court, could not be accounted for if it was his liability, and not that of his property, which was in question. Even where, as in some of the cases, expiation seems to be intended rather than vengeance, the object is equally remote from an extrajudicial distress. The foregoing history, apart from the purposes for which it has been given, well illustrates the paradox of form and substance in the development of law. In form its growth is logical. The official theory is that each new decision follows syllogistically from existing precedents. But just as the clavicle in the cat only tells of the existence of some earlier creature to which a collar-bone was useful, precedents survive in the law long after the use they once served is at an end and the reason for them has been forgotten. The result of following them must often be failure and confusion from the merely logical point of view. On the other hand, in substance the growth of the law is legislative. And this in a deeper sense than that what the courts declare to have always been the law is in fact new. It is legislative in its grounds. The very considerations which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life. I mean, of course, considerations of what is expedient for the community concerned. Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy; most generally, to be sure, [36] under our practice and traditions, the unconscious result of instinctive preferences and inarticulate convictions, but none the less traceable to views of public policy in the last analysis. And as the law is administered by able and experienced men, who know too much to sacrifice good sense to a syllogism, it will be found that, when ancient rules maintain themselves in the way that has been and will be shown in this book, new reasons more fitted to the time have been found for them, and that they gradually receive a new content, and at last a new form, from the grounds to which they have been transplanted. But hitherto this process has been largely unconscious. It is important, on that account, to bring to mind what the actual course of events has been. If it were only to insist on a more conscious recognition of the legislative function of the courts, as just explained, it would be useful, as we shall see more clearly further on. /1/ What has been said will explain the failure of all theories which consider the law only from its formal side; whether they attempt to deduce the corpus from a priori postulates, or fall into the humbler error of supposing the science of the law to reside in the elegantia juris, or logical cohesion of part with part. The truth is, that the law always approaching, and never reaching, consistency. It is forever adopting new principles from life at one end, and it always retains old ones from history at the other, which have not yet been absorbed or sloughed off. It will become entirely consistent only when it ceases to grow. The study upon which we have been engaged is necessary both for the knowledge and for the revision of the law. [37] However much we may codify the law into a series of seemingly self-sufficient propositions, those propositions will be but a phase in a continuous growth. To understand their scope fully, to know how they will be dealt with by judges trained in the past which the law embodies, we must ourselves know something of that past. The history of what the law has been is necessary to the knowledge of what the law is. Again, the process which I have described has involved the attempt to follow precedents, as well as to give a good reason for them. When we find that in large and important branches of the law the various grounds of policy on which the various rules have been justified are later inventions to account for what are in fact survivals from more primitive times, we have a right to reconsider the popular reasons, and, taking a broader view of the field, to decide anew whether those reasons are satisfactory. They may be, notwithstanding the manner of their appearance. If truth were not often suggested by error, if old implements could not be adjusted to new uses, human progress would be slow. But scrutiny and revision are justified. But none of the foregoing considerations, nor the purpose of showing the materials for anthropology contained in the history of the law, are the immediate object here. My aim and purpose have been to show that the various forms of liability known to modern law spring from the common ground of revenge. In the sphere of contract the fact will hardly be material outside the cases which have been stated in this Lecture. But in the criminal law and the law of torts it is of the first importance. It shows that they have started from a moral basis, from the thought that some one was to blame. [38] It remains to be proved that, while the terminology of morals is still retained, and while the law does still and always, in a certain sense, measure legal liability by moral standards, it nevertheless, by the very necessity of its nature, is continually transmuting those moral standards into external or objective ones, from which the actual guilt of the party concerned is wholly eliminated. [39] LECTURE II. -- THE CRIMINAL LAW. In the beginning of the first Lecture it was shown that the appeals of the early law were directed only to intentional wrongs. The appeal was a far older form of procedure than the indictment, and may be said to have had a criminal as well as a civil aspect. It had the double object of satisfying the private party for his loss, and the king for the breach of his peace. On its civil side it was rooted in vengeance. It was a proceeding to recover those compositions, at first optional, afterwards compulsory, by which a wrong-doer bought the spear from his side. Whether, so far as concerned the king, it had the same object of vengeance, or was more particularly directed to revenue, does not matter, since the claim of the king did not enlarge the scope of the action. It would seem to be a fair inference that indictable offences were originally limited in the same way as those which gave rise to an appeal. For whether the indictment arose by a splitting up of the appeal, or in some other way, the two were closely connected. An acquittal of the appellee on the merits was a bar to an indictment; and, on the other hand, when an appeal was fairly started, although the appellor might fail to prosecute, or might be defeated by plea, the cause might still be proceeded with on behalf of the king. /1/ [40] The presentment, which is the other parent of our criminal procedure, had an origin distinct from the appeal. If, as has been thought, it was merely the successor of fresh suit and lynch law, /1/ this also is the child of vengeance, even more clearly than the other. The desire for vengeance imports an opinion that its object is actually and personally to blame. It takes an internal standard, not an objective or external one, and condemns its victim by that. The question is whether such a standard is still accepted either in this primitive form, or in some more refined development, as is commonly supposed, and as seems not impossible, considering the relative slowness with which the criminal law has improved. It certainly may be argued, with some force, that it has never ceased to be one object of punishment to satisfy the desire for vengeance. The argument will be made plain by considering those instances in which, for one reason or another, compensation for a wrong is out of the question. Thus an act may be of such a kind as to make indemnity impossible by putting an end to the principal sufferer, as in the case of murder or manslaughter. Again, these and other crimes, like forgery, although directed against an individual, tend to make others feel unsafe, and this general insecurity does not admit of being paid for. Again, there are cases where there are no means of enforcing indemnity. In Macaulay's draft of the Indian Penal Code, breaches of contract for the carriage of passengers, were made criminal. The palanquin-bearers of India were too poor to pay damages, and yet had to be [41] trusted to carry unprotected women and children through wild and desolate tracts, where their desertion would have placed those under their charge in great danger. In all these cases punishment remains as an alternative. A pain can be inflicted upon the wrong-doer, of a sort which does not restore the injured party to his former situation, or to another equally good, but which is inflicted for the very purpose of causing pain. And so far as this punishment takes the place of compensation, whether on account of the death of the person to whom the wrong was done, the indefinite number of persons affected, the impossibility of estimating the worth of the suffering in money, or the poverty of the criminal, it may be said that one of its objects is to gratify the desire for vengeance. The prisoner pays with his body. The statement may be made stronger still, and it may be said, not only that the law does, but that it ought to, make the gratification of revenge an object. This is the opinion, at any rate, of two authorities so great, and so opposed in other views, as Bishop Butler and Jeremy Bentham. /1/ Sir James Stephen says, "The criminal law stands to the passion of revenge in much the same relation as marriage to the sexual appetite." /2/ The first requirement of a sound body of law is, that it should correspond with the actual feelings and demands of the community, whether right or wrong. If people would gratify the passion of revenge outside of the law, if the law did not help them, the law has no choice but to satisfy the craving itself, and thus avoid the greater evil of private [42] retribution. At the same time, this passion is not one which we encourage, either as private individuals or as lawmakers. Moreover, it does not cover the whole ground. There are crimes which do not excite it, and we should naturally expect that the most important purposes of punishment would be coextensive with the whole field of its application. It remains to be discovered whether such a general purpose exists, and if so what it is. Different theories still divide opinion upon the subject. It has been thought that the purpose of punishment is to reform the criminal; that it is to deter the criminal and others from committing similar crimes; and that it is retribution. Few would now maintain that the first of these purposes was the only one. If it were, every prisoner should be released as soon as it appears clear that he will never repeat his offence, and if he is incurable he should not be punished at all. Of course it would be hard to reconcile the punishment of death with this doctrine. The main struggle lies between the other two. On the one side is the notion that there is a mystic bond between wrong and punishment; on the other, that the infliction of pain is only a means to an end. Hegel, one of the great expounders of the former view, puts it, in his quasi mathematical form, that, wrong being the negation of right, punishment is the negation of that negation, or retribution. Thus the punishment must be equal, in the sense of proportionate to the crime, because its only function is to destroy it. Others, without this logical apparatus, are content to rely upon a felt necessity that suffering should follow wrong-doing. It is objected that the preventive theory is immoral, because it overlooks the ill-desert of wrong-doing, and furnishes [43] no measure of the amount of punishment, except the lawgiver's subjective opinion in regard to the sufficiency of the amount of preventive suffering. /1/ In the language of Kant, it treats man as a thing, not as a person; as a means, not as an end in himself. It is said to conflict with the sense of justice, and to violate the fundamental principle of all free communities, that the members of such communities have equal rights to life, liberty, and personal security. /2/ In spite of all this, probably most English-speaking lawyers would accept the preventive theory without hesitation. As to the violation of equal rights which is charged, it may be replied that the dogma of equality makes an equation between individuals only, not between an individual and the community. No society has ever admitted that it could not sacrifice individual welfare to its own existence. If conscripts are necessary for its army, it seizes them, and marches them, with bayonets in their rear, to death. It runs highways and railroads through old family places in spite of the owner's protest, paying in this instance the market value, to be sure, because no civilized government sacrifices the citizen more than it can help, but still sacrificing his will and his welfare to that of the rest. /3/ If it were necessary to trench further upon the field of morals, it might be suggested that the dogma of equality applied even to individuals only within the limits of ordinary dealings in the common run of affairs. You cannot argue with your neighbor, except on the admission for the [44] moment that he is as wise as you, although you may by no means believe it. In the same way, you cannot deal with him, where both are free to choose, except on the footing of equal treatment, and the same rules for both. The ever-growing value set upon peace and the social relations tends to give the law of social being the appearance of the law of all being. But it seems to me clear that the ultima ratio, not only regum, but of private persons, is force, and that at the bottom of all private relations, however tempered by sympathy and all the social feelings, is a justifiable self-preference. If a man is on a plank in the deep sea which will only float one, and a stranger lays hold of it, he will thrust him off if he can. When the state finds itself in a similar position, it does the same thing. The considerations which answer the argument of equal rights also answer the objections to treating man as a thing, and the like. If a man lives in society, he is liable to find himself so treated. The degree of civilization which a people has reached, no doubt, is marked by their anxiety to do as they would be done by. It may be the destiny of man that the social instincts shall grow to control his actions absolutely, even in anti-social situations. But they have not yet done so, and as the rules of law are or should be based upon a morality which is generally accepted, no rule founded on a theory of absolute unselfishness can be laid down without a breach between law and working beliefs. If it be true, as I shall presently try to show, that the general principles of criminal and civil liability are the same, it will follow from that alone that theory and fact agree in frequently punishing those who have been guilty [45] of no moral wrong, and who could not be condemned by any standard that did not avowedly disregard the personal peculiarities of the individuals concerned. If punishment stood on the moral grounds which are proposed for it, the first thing to be considered would be those limitations in the capacity for choosing rightly which arise from abnormal instincts, want of education, lack of intelligence, and all the other defects which are most marked in the criminal classes. I do not say that they should not be, or at least I do not need to for my argument. I do not say that the criminal law does more good than harm. I only say that it is not enacted or administered on that theory. There remains to be mentioned the affirmative argument in favor of the theory of retribution, to the effect that the fitness of punishment following wrong-doing is axiomatic, and is instinctively recognized by unperverted minds. I think that it will be seen, on self-inspection, that this feeling of fitness is absolute and unconditional only in the case of our neighbors. It does not seem to me that any one who has satisfied himself that an act of his was wrong, and that he will never do it again, would feel the least need or propriety, as between himself and an earthly punishing power alone, of his being made to suffer for what he had done, although, when third persons were introduced, he might, as a philosopher, admit the necessity of hurting him to frighten others. But when our neighbors do wrong, we sometimes feel the fitness of making them smart for it, whether they have repented or not. The feeling of fitness seems to me to be only vengeance in disguise, and I have already admitted that vengeance was an element, though not the chief element, of punishment. [46] But, again, the supposed intuition of fitness does not seem to me to be coextensive with the thing to be accounted for. The lesser punishments are just as fit for the lesser crimes as the greater for the greater. The demand that crime should be followed by its punishment should therefore be equal and absolute in both. Again, a malum prohibitum is just as much a crime as a malum in se. If there is any general ground for punishment, it must apply to one case as much as to the other. But it will hardly be said that, if the wrong in the case just supposed consisted of a breach of the revenue laws, and the government had been indemnified for the loss, we should feel any internal necessity that a man who had thoroughly repented of his wrong should be punished for it, except on the ground that his act was known to others. If it was known, the law would have to verify its threats in order that others might believe and tremble. But if the fact was a secret between the sovereign and the subject, the sovereign, if wholly free from passion, would undoubtedly see that punishment in such a case was wholly without justification. On the other hand, there can be no case in which the law-maker makes certain conduct criminal without his thereby showing a wish and purpose to prevent that conduct. Prevention would accordingly seem to be the chief and only universal purpose of punishment. The law threatens certain pains if you do certain things, intending thereby to give you a new motive for not doing them. If you persist in doing them, it has to inflict the pains in order that its threats may continue to be believed. If this is a true account of the law as it stands, the law does undoubtedly treat the individual as a means to an [47] end, and uses him as a tool to increase the general welfare at his own expense. It has been suggested above, that this course is perfectly proper; but even if it is wrong, our criminal law follows it, and the theory of our criminal law must be shaped accordingly. Further evidence that our law exceeds the limits of retribution, and subordinates consideration of the individual to that of the public well-being, will be found in some doctrines which cannot be satisfactorily explained on any other ground. The first of these is, that even the deliberate taking of life will not be punished when it is the only way of saving one's own. This principle is not so clearly established as that next to be mentioned; but it has the support of very great authority. /1/ If that is the law, it must go on one of two grounds, either that self-preference is proper in the case supposed, or that, even if it is improper, the law cannot prevent it by punishment, because a threat of death at some future time can never be a sufficiently powerful motive to make a man choose death now in order to avoid the threat. If the former ground is adopted, it admits that a single person may sacrifice another to himself, and a fortiori that a people may. If the latter view is taken, by abandoning punishment when it can no longer be expected to prevent an act, the law abandons the retributive and adopts the preventive theory. The next doctrine leads to still clearer conclusions. Ignorance of the law is no excuse for breaking it. This substantive principle is sometimes put in the form of a rule of evidence, that every one is presumed to know the [48] law. It has accordingly been defended by Austin and others, on the ground of difficulty of proof. If justice requires the fact to be ascertained, the difficulty of doing so is no ground for refusing to try. But every one must feel that ignorance of the law could never be admitted as an excuse, even if the fact could be proved by sight and hearing in every case. Furthermore, now that parties can testify, it may be doubted whether a man's knowledge of the law is any harder to investigate than many questions which are gone into. The difficulty, such as it is, would be met by throwing the burden of proving ignorance on the lawbreaker. The principle cannot be explained by saying that we are not only commanded to abstain from certain acts, but also to find out that we are commanded. For if there were such a second command, it is very clear that the guilt of failing to obey it would bear no proportion to that of disobeying the principal command if known, yet the failure to know would receive the same punishment as the failure to obey the principal law. The true explanation of the rule is the same as that which accounts for the law's indifference to a man's particular temperament, faculties, and so forth. Public policy sacrifices the individual to the general good. It is desirable that the burden of all should be equal, but it is still more desirable to put an end to robbery and murder. It is no doubt true that there are many cases in which the criminal could not have known that he was breaking the law, but to admit the excuse at all would be to encourage ignorance where the law-maker has determined to make men know and obey, and justice to the individual is rightly outweighed by the larger interests on the other side of the scales. [49] If the foregoing arguments are sound, it is already manifest that liability to punishment cannot be finally and absolutely determined by considering the actual personal unworthiness of the criminal alone. That consideration will govern only so far as the public welfare permits or demands. And if we take into account the general result which the criminal law is intended to bring about, we shall see that the actual state of mind accompanying a criminal act plays a different part from what is commonly supposed. For the most part, the purpose of the criminal law is only to induce external conformity to rule. All law is directed to conditions of things manifest to the senses. And whether it brings those conditions to pass immediately by the use of force, as when it protects a house from a mob by soldiers, or appropriates private property to public use, or hangs a man in pursuance of a judicial sentence, or whether it brings them about mediately through men's fears, its object is equally an external result. In directing itself against robbery or murder, for instance, its purpose is to put a stop to the actual physical taking and keeping of other men's goods, or the actual poisoning, shooting, stabbing, and otherwise putting to death of other men. If those things are not done, the law forbidding them is equally satisfied, whatever the motive. Considering this purely external purpose of the law together with the fact that it is ready to sacrifice the individual so far as necessary in order to accomplish that purpose, we can see more readily than before that the actual degree of personal guilt involved in any particular transgression cannot be the only element, if it is an element at all, in the liability incurred. So far from its [50] being true, as is often assumed, that the condition of a man's heart or conscience ought to be more considered in determining criminal than civil liability, it might almost be said that it is the very opposite of truth. For civil liability, in its immediate working, is simply a redistribution of an existing loss between two individuals; and it will be argued in the next Lecture that sound policy lets losses lie where they fall, except where a special reason can be shown for interference. The most frequent of such reasons is, that the party who is charged has been to blame. It is not intended to deny that criminal liability, as well as civil, is founded on blameworthiness. Such a denial would shock the moral sense of any civilized community; or, to put it another way, a law which punished conduct which would not be blameworthy in the average member of the community would be too severe for that community to bear. It is only intended to point out that, when we are dealing with that part of the law which aims more directly than any other at establishing standards of conduct, we should expect there more than elsewhere to find that the tests of liability are external, and independent of the degree of evil in the particular person's motives or intentions. The conclusion follows directly from the nature of the standards to which conformity is required. These are not only external, as was shown above, but they are of general application. They do not merely require that every man should get as near as he can to the best conduct possible for him. They require him at his own peril to come up to a certain height. They take no account of incapacities, unless the weakness is so marked as to fall into well-known exceptions, such as infancy or madness. [51] They assume that every man is as able as every other to behave as they command. If they fall on any one class harder than on another, it is on the weakest. For it is precisely to those who are most likely to err by temperament, ignorance, or folly, that the threats of the law are the most dangerous. The reconciliation of the doctrine that liability is founded on blameworthiness with the existence of liability where the party is not to blame, will be worked out more fully in the next Lecture. It is found in the conception of the average man, the man of ordinary intelligence and reasonable prudence. Liability is said to arise out of such conduct as would be blameworthy in him. But he is an ideal being, represented by the jury when they are appealed to, and his conduct is an external or objective standard when applied to any given individual. That individual may be morally without stain, because he has less than ordinary intelligence or prudence. But he is required to have those qualities at his peril. If he has them, he will not, as a general rule, incur liability without blameworthiness. The next step is to take up some crimes in detail, and to discover what analysis will teach with regard to them. I will begin with murder. Murder is defined by Sir James Stephen, in his Digest of Criminal Law, /1/ as unlawful homicide with malice aforethought. In his earlier work, /2/ he explained that malice meant wickedness, and that the law had determined what states of mind were wicked in the necessary degree. Without the same preliminary he continues in his Digest as follows:-- [52] "Malice aforethought means any one or more of the following states of mind..... "(a.) An intention to cause the death of, or grievous bodily harm to, any person, whether such person is the person actually killed or not; "(b.) Knowledge that the act which causes death will probably cause the death of, or grievous bodily harm to, some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; "(c.) An intent to commit any felony whatever; "(d.) An intent to oppose by force any officer of justice on his way to, in, or returning from the execution of the duty of arresting, keeping in custody, or imprisoning any person whom he is lawfully entitled to arrest, keep in custody, or imprison, or the duty of keeping the peace or dispersing an unlawful assembly, provided that the offender has notice that the person killed is such an officer so employed." Malice, as used in common speech, includes intent, and something more. When an act is said to be done with an intent to do harm, it is meant that a wish for the harm is the motive of the act. Intent, however, is perfectly consistent with the harm being regretted as such, and being wished only as a means to something else. But when an act is said to be done maliciously, it is meant, not only that a wish for the harmful effect is the motive, but also that the harm is wished for its own sake, or, as Austin would say with more accuracy, for the sake of the pleasurable feeling which knowledge of the suffering caused by the act would excite. Now it is apparent from Sir James [53] Stephen's enumeration, that of these two elements of malice the intent alone is material to murder. It is just as much murder to shoot a sentry for the purpose of releasing a friend, as to shoot him because you hate him. Malice, in the definition of murder, has not the same meaning as in common speech, and, in view of the considerations just mentioned, it has been thought to mean criminal intention. /1/ But intent again will be found to resolve itself into two things; foresight that certain consequences will follow from an act, and the wish for those consequences working as a motive which induces the act. The question then is, whether intent, in its turn, cannot be reduced to a lower term. Sir James Stephen's statement shows that it can be, and that knowledge that the act will probably cause death, that is, foresight of the consequences of the act, is enough in murder as in tort. For instance, a newly born child is laid naked out of doors, where it must perish as a matter of course. This is none the less murder, that the guilty party would have been very glad to have a stranger find the child and save it. /2/ But again, What is foresight of consequences? It is a picture of a future state of things called up by knowledge of the present state of things, the future being viewed as standing to the present in the relation of effect to cause. Again, we must seek a reduction to lower terms. If the known present state of things is such that the act done will very certainly cause death, and the probability is a matter of common knowledge, one who does the act, [54] knowing the present state of things, is guilty of murder, and the law will not inquire whether he did actually foresee the consequences or not. The test of foresight is not what this very criminal foresaw, but what a man of reasonable prudence would have foreseen. On the other hand, there must be actual present knowledge of the present facts which make an act dangerous. The act is not enough by itself. An act, it is true, imports intention in a certain sense. It is a muscular contraction, and something more. A spasm is not an act. The contraction of the muscles must be willed. And as an adult who is master of himself foresees with mysterious accuracy the outward adjustment which will follow his inward effort, that adjustment may be said to be intended. But the intent necessarily accompanying the act ends there. Nothing would follow from the act except for the environment. All acts, taken apart from their surrounding circumstances, are indifferent to the law. For instance, to crook the forefinger with a certain force is the same act whether the trigger of a pistol is next to it or not. It is only the surrounding circumstances of a pistol loaded and cocked, and of a human being in such relation to it, as to be manifestly likely to be hit, that make the act a wrong. Hence, it is no sufficient foundation for liability, on any sound principle, that the proximate cause of loss was an act. The reason for requiring an act is, that an act implies a choice, and that it is felt to be impolitic and unjust to make a man answerable for harm, unless he might have chosen otherwise. But the choice must be made with a chance of contemplating the consequence complained of, or else it has no bearing on responsibility for that consequence. [55] If this were not true, a man might be held answerable for everything which would not have happened but for his choice at some past time. For instance, for having in a fit fallen on a man, which he would not have done had he not chosen to come to the city where he was taken ill. All foresight of the future, all choice with regard to any possible consequence of action, depends on what is known at the moment of choosing. An act cannot be wrong, even when done under circumstances in which it will be hurtful, unless those circumstances are or ought to be known. A fear of punishment for causing harm cannot work as a motive, unless the possibility of harm may be foreseen. So far, then, as criminal liability is founded upon wrong-doing in any sense, and so far as the threats and punishments of the law are intended to deter men from bringing about various harmful results, they must be confined to cases where circumstances making the conduct dangerous were known. Still, in a more limited way, the same principle applies to knowledge that applies to foresight. It is enough that such circumstances were actually known as would have led a man of common understanding to infer from them the rest of the group making up the present state of things. For instance, if a workman on a house-top at mid-day knows that the space below him is a street in a great city, he knows facts from which a man of common understanding would infer that there were people passing below. He is therefore bound to draw that inference, or, in other words, is chargeable with knowledge of that fact also, whether he draws the inference or not. If then, he throws down a heavy beam into the street, he does an act [56] which a person of ordinary prudence would foresee is likely to cause death, or grievous bodily harm, and he is dealt with as if he foresaw it, whether he does so in fact or not. If a death is caused by the act, he is guilty of murder. /1/ But if the workman has reasonable cause to believe that the space below is a private yard from which every one is excluded, and which is used as a rubbish heap, his act is not blameworthy, and the homicide is a mere misadventure. To make an act which causes death murder, then, the actor ought, on principle, to know, or have notice of the facts which make the act dangerous. There are certain exceptions to this principle which will be stated presently, but they have less application to murder than to some smaller statutory crimes. The general rule prevails for the most part in murder. But furthermore, on the same principle, the danger which in fact exists under the known circumstances ought to be of a class which a man of reasonable prudence could foresee. Ignorance of a fact and inability to foresee a consequence have the same effect on blameworthiness. If a consequence cannot be foreseen, it cannot be avoided. But there is this practical difference, that whereas, in most cases, the question of knowledge is a question of the actual condition of the defendant's consciousness, the question of what he might have foreseen is determined by the standard of the prudent man, that is, by general experience. For it is to be remembered that the object of the law is to prevent human life being endangered or taken; and that, although it so far considers blameworthiness in punishing as not to hold a man responsible for consequences which [57] no one, or only some exceptional specialist, could have foreseen, still the reason for this limitation is simply to make a rule which is not too hard for the average member of the community. As the purpose is to compel men to abstain from dangerous conduct, and not merely to restrain them from evil inclinations, the law requires them at their peril to know the teachings of common experience, just as it requires them to know the law. Subject to these explanations, it may be said that the test of murder is the degree of danger to life attending the act under the known circumstances of the case. /1/ It needs no further explanation to show that, when the particular defendant does for any reason foresee what an ordinary man of reasonable prudence would not have foreseen, the ground of exemption no longer applies. A harmful act is only excused on the ground that the party neither did foresee, nor could with proper care have foreseen harm. It would seem, at first sight, that the above analysis ought to exhaust the whole subject of murder. But it does not without some further explanation. If a man forcibly resists an officer lawfully making an arrest, and kills him, knowing him to be an officer, it may be murder, although no act is done which, but for his official function, would be criminal at all. So, if a man does an act with intent to commit a felony, and thereby accidentally kills another; for instance, if he fires at chickens, intending to steal them, and accidentally kills the owner, whom he does not see. Such a case as this last seems hardly to be reconcilable with the general principles which have been laid down. It has been argued somewhat as [58] follows:--The only blameworthy act is firing at the chickens, knowing them to belong to another. It is neither more nor less so because an accident happens afterwards; and hitting a man, whose presence could not have been suspected, is an accident. The fact that the shooting is felonious does not make it any more likely to kill people. If the object of the rule is to prevent such accidents, it should make accidental killing with firearms murder, not accidental killing in the effort to steal; while, if its object is to prevent stealing, it would do better to hang one thief in every thousand by lot. Still, the law is intelligible as it stands. The general test of murder is the degree of danger attending the acts under the known state of facts. If certain acts are regarded as peculiarly dangerous under certain circumstances, a legislator may make them punishable if done under these circumstances, although the danger was not generally known. The law often takes this step, although it does not nowadays often inflict death in such cases. It sometimes goes even further, and requires a man to find out present facts, as well as to foresee future harm, at his peril, although they are not such as would necessarily be inferred from the facts known. Thus it is a statutory offence in England to abduct a girl under sixteen from the possession of the person having lawful charge of her. If a man does acts which induce a girl under sixteen to leave her parents, he is not chargeable, if he had no reason to know that she was under the lawful charge of her parents, /1/ and it may be presumed that he would not be, if he had reasonable cause to believe that she was a boy. But if he knowingly abducts a girl from [59] her parents, he must find out her age at his peril. It is no defence that he had every reason to think her over sixteen. /1/ So, under a prohibitory liquor law, it has been held that, if a man sells "Plantation Bitters," it is no defence that he does not know them to be intoxicating. /2/ And there are other examples of the same kind. Now, if experience shows, or is deemed by the law-maker to show, that somehow or other deaths which the evidence makes accidental happen disproportionately often in connection with other felonies, or with resistance to officers, or if on any other ground of policy it is deemed desirable to make special efforts for the prevention of such deaths, the lawmaker may consistently treat acts which, under the known circumstances, are felonious, or constitute resistance to officers, as having a sufficiently dangerous tendency to be put under a special ban. The law may, therefore, throw on the actor the peril, not only of the consequences foreseen by him, but also of consequences which, although not predicted by common experience, the legislator apprehends. I do not, however, mean to argue that the rules under discussion arose on the above reasoning, any more than that they are right, or would be generally applied in this country. Returning to the main line of thought it will be instructive to consider the relation of manslaughter to murder. One great difference between the two will be found to lie in the degree of danger attaching to the act in the given state of facts. If a man strikes another with a small stick which is not likely to kill, and which he has no reason to suppose will do more than slight bodily harm, but which [60] does kill the other, he commits manslaughter, not murder. /1/ But if the blow is struck as hard as possible with an iron bar an inch thick, it is murder. /2/ So if, at the time of striking with a switch, the party knows an additional fact, by reason of which he foresees that death will be the consequence of a slight blow, as, for instance, that the other has heart disease, the offence is equally murder. /3/ To explode a barrel of gunpowder in a crowded street, and kill people, is murder, although the actor hopes that no such harm will be done. /4/ But to kill a man by careless riding in the same street would commonly be manslaughter. /5/ Perhaps, however, a case could be put where the riding was so manifestly dangerous that it would be murder. To recur to an example which has been used already for another purpose: "When a workman flings down a stone or piece of timber into the street, and kills a man; this may be either misadventure, manslaughter, or murder, according to the circumstances under which the original act was done: if it were in a country village, where few passengers are, and he calls out to all people to have a care, it is misadventure only; but if it were in London, or other populous town, where people are continually passing, it is manslaughter, though he gives loud warning; and murder, if he knows of their passing, and gives no warning at all." /6/ The law of manslaughter contains another doctrine [61] which should be referred to in order to complete the understanding of the general principles of the criminal law. This doctrine is, that provocation may reduce an offence which would otherwise have been murder to manslaughter. According to current morality, a man is not so much to blame for an act done under the disturbance of great excitement, caused by a wrong done to himself, as when he is calm. The law is made to govern men through their motives, and it must, therefore, take their mental constitution into account. It might be urged, on the other side, that, if the object of punishment is prevention, the heaviest punishment should be threatened where the strongest motive is needed to restrain; and primitive legislation seems sometimes to have gone on that principle. But if any threat will restrain a man in a passion, a threat of less than death will be sufficient, and therefore the extreme penalty has been thought excessive. At the same time the objective nature of legal standards is shown even here. The mitigation does not come from the fact that the defendant was beside himself with rage. It is not enough that he had grounds which would have had the same effect on every man of his standing and education. The most insulting words are not provocation, although to this day, and still more when the law was established, many people would rather die than suffer them without action. There must be provocation sufficient to justify the passion, and the law decides on general considerations what provocations are sufficient. It is said that even what the law admits to be "provocation does not extenuate the guilt of homicide, unless the person provoked is at the time when he does the deed [62] deprived of the power of self-control by the provocation which he has received." /1/ There are obvious reasons for taking the actual state of the defendant's consciousness into account to this extent. The only ground for not applying the general rule is, that the defendant was in such a state that he could not be expected to remember or be influenced by the fear of punishment; if he could be, the ground of exception disappears. Yet even here, rightly or wrongly, the law has gone far in the direction of adopting external tests. The courts seem to have decided between murder and manslaughter on such grounds as the nature of the weapon used, /2/ or the length of time between the provocation and the act. /3/ But in other cases the question whether the prisoner was deprived of self-control by passion has been left to the jury. /4/ As the object of this Lecture is not to give an outline of the criminal law, but to explain its general theory, I shall only consider such offences as throw some special light upon the subject, and shall treat of those in such order as seems best fitted for that purpose. It will now be useful to take up malicious mischief, and to compare the malice required to constitute that offence with the malice aforethought of murder. The charge of malice aforethought in an indictment for murder has been shown not to mean a state of the defendant's mind, as is often thought, except in the sense that he knew circumstances which did in fact make his conduct dangerous. It is, in truth, an allegation like that of negligence, which asserts that the party accused did not [63] come up to the legal standard of action under the circumstances in which he found himself, and also that there was no exceptional fact or excuse present which took the case out of the general rule. It is an averment of a conclusion of law which is permitted to abridge the facts (positive and negative) on which it is founded. When a statute punishes the "wilfully and maliciously" injuring another's property, it is arguable, if not clear, that something more is meant. The presumption that the second word was not added without some meaning is seconded by the unreasonableness of making every wilful trespass criminal. /1/ If this reasoning prevails, maliciously is here used in its popular sense, and imports that the motive for the defendant's act was a wish to harm the owner of the property, or the thing itself, if living, as an end, and for the sake of the harm. Malice in this sense has nothing in common with the malice of murder. Statutory law need not profess to be consistent with itself, or with the theory adopted by judicial decisions. Hence there is strictly no need to reconcile such a statute with the principles which have been explained. But there is no inconsistency. Although punishment must be confined to compelling external conformity to a rule of conduct, so far that it can always be avoided by avoiding or doing certain acts as required, with whatever intent or for whatever motive, still the prohibited conduct may not be hurtful unless it is accompanied by a particular state of feeling. Common disputes about property are satisfactorily settled by compensation. But every one knows that sometimes secret harm is done by neighbor to neighbor out of [64] pure malice and spite. The damage can be paid for, but the malignity calls for revenge, and the difficulty of detecting the authors of such wrongs, which are always done secretly, affords a ground for punishment, even if revenge is thought insufficient. How far the law will go in this direction it is hard to say. The crime of arson is defined to be the malicious and wilful burning of the house of another man, and is generally discussed in close connection with malicious mischief. It has been thought that the burning was not malicious where a prisoner set fire to his prison, not from a desire to consume the building, but solely to effect his escape. But it seems to be the better opinion that this is arson, /1/ in which case an intentional burning is malicious within the meaning of the rule. When we remember that arson was the subject of one of the old appeals which take us far back into the early law, /2/ we may readily understand that only intentional burnings were redressed in that way. /3/ The appeal of arson was brother to the appeal de pace et plagis. As the latter was founded on a warlike assault, the former supposed a house-firing for robbery or revenge, /4/ such as that by which Njal perished in the Icelandic Saga. But this crime seems to have had the same history as others. As soon as intent is admitted to be sufficient, the law is on the high-road to an external standard. A man who intentionally sets fire to his own house, which is so near to other houses that the fire will manifestly endanger them, is guilty of arson if one of the other houses is burned in consequence. /5/ In this case, an act which would not [65] have been arson, taking only its immediate consequences into account, becomes arson by reason of more remote consequences which were manifestly likely to follow, whether they were actually intended or not. If that may be the effect of setting fire to things which a man has a right to burn, so far as they alone are concerned, why, on principle, should it not be the effect of any other act which is equally likely under the surrounding circumstances to cause the same harm. /1/ Cases may easily be imagined where firing a gun, or making a chemical mixture, or piling up oiled rags, or twenty other things, might be manifestly dangerous in the highest degree and actually lead to a conflagration. If, in such cases, the crime is held to have been committed, an external standard is reached, and the analysis which has been made of murder applies here. There is another class of cases in which intent plays an important part, for quite different reasons from those which have been offered to account for the law of malicious mischief. The most obvious examples of this class are criminal attempts. Attempt and intent, of course, are two distinct things. Intent to commit a crime is not itself criminal. There is no law against a man's intending to commit a murder the day after tomorrow. The law only deals with conduct. An attempt is an overt act. It differs from the attempted crime in this, that the act has failed to bring about the result which would have given it the character of the principal crime. If an attempt to murder results in death within a year and a day, it is murder. If an attempt to steal results in carrying off the owner's goods, it is larceny. If an act is done of which the natural and probable [66] effect under the circumstances is the accomplishment of a substantive crime, the criminal law, while it may properly enough moderate the severity of punishment if the act has not that effect in the particular case, can hardly abstain altogether from punishing it, on any theory. It has been argued that an actual intent is all that can give the act a criminal character in such instances. /1/ But if the views which I have advanced as to murder and manslaughter are sound, the same principles ought logically to determine the criminality of acts in general. Acts should be judged by their tendency under the known circumstances, not by the actual intent which accompanies them. It may be true that in the region of attempts, as elsewhere, the law began with cases of actual intent, as those cases are the most obvious ones. But it cannot stop with them, unless it attaches more importance to the etymological meaning of the word attempt than to the general principles of punishment. Accordingly there is at least color of authority for the proposition that an act is punishable as an attempt, if, supposing it to have produced its natural and probable effect, it would have amounted to a substantive crime. /2/ But such acts are not the only punishable attempts. There is another class in which actual intent is clearly necessary, and the existence of this class as well as the name (attempt) no doubt tends to affect the whole doctrine. Some acts may be attempts or misdemeanors which [67] could not have effected the crime unless followed by other acts on the part of the wrong-doer. For instance, lighting a match with intent to set fire to a haystack has been held to amount to a criminal attempt to burn it, although the defendant blew out the match on seeing that he was watched. /1/ So the purchase of dies for making counterfeit coin is a misdemeanor, although of course the coin would not be counterfeited unless the dies were used. /2/ In such cases the law goes on a new principle, different from that governing most substantive crimes. The reason for punishing any act must generally be to prevent some harm which is foreseen as likely to follow that act under the circumstances in which it is done. In most substantive crimes the ground on which that likelihood stands is the common working of natural causes as shown by experience. But when an act is punished the natural effect of which is not harmful under the circumstances, that ground alone will not suffice. The probability does not exist unless there are grounds for expecting that the act done will be followed by other acts in connection with which its effect will be harmful, although not so otherwise. But as in fact no such acts have followed, it cannot, in general, be assumed, from the mere doing of what has been done, that they would have followed if the actor had not been interrupted. They would not have followed it unless the actor had chosen, and the only way generally available to show that he would have chosen to do them is by showing that he intended to do them when he did what he did. The accompanying intent in that case renders the otherwise [68] innocent act harmful, because it raises a probability that it will be followed by such other acts and events as will all together result in harm. The importance of the intent is not to show that the act was wicked, but to show that it was likely to be followed by hurtful consequences. It will be readily seen that there are limits to this kind of liability. The law does not punish every act which is done with the intent to bring about a crime. If a man starts from Boston to Cambridge for the purpose of committing a murder when he gets there, but is stopped by the draw and goes home, he is no more punishable than if he had sat in his chair and resolved to shoot somebody, but on second thoughts had given up the notion. On the other hand, a slave who ran after a white woman, but desisted before he caught her, has been convicted of an attempt to commit rape. /1/ We have seen what amounts to an attempt to burn a haystack; but it was said in the same case, that, if the defendant had gone no further than to buy a box of matches for the purpose, he would not have been liable. Eminent judges have been puzzled where to draw the line, or even to state the principle on which it should be drawn, between the two sets of cases. But the principle is believed to be similar to that on which all other lines are drawn by the law. Public policy, that is to say, legislative considerations, are at the bottom of the matter; the considerations being, in this case, the nearness of the danger, the greatness of the harm, and the degree of apprehension felt. When a man buys matches to fire a haystack, or starts on a journey meaning to murder at the end of it, there is still a considerable chance that he will [69] change his mind before he comes to the point. But when he has struck the match, or cocked and aimed the pistol, there is very little chance that he will not persist to the end, and the danger becomes so great that the law steps in. With an object which could not be used innocently, the point of intervention might be put further back, as in the case of the purchase of a die for coining. The degree of apprehension may affect the decision, as well as the degree of probability that the crime will be accomplished. No doubt the fears peculiar to a slaveowning community had their share in the conviction which has just been mentioned. There is one doubtful point which should not be passed over. It has been thought that to shoot at a block of wood thinking it to be a man is not an attempt to murder, /1/ and that to put a hand into an empty pocket, intending to pick it, is not an attempt to commit larceny, although on the latter question there is a difference of opinion. /2/ The reason given is, that an act which could not have effected the crime if the actor had been allowed to follow it up to all results to which in the nature of things it could have led, cannot be an attempt to commit that crime when interrupted. At some point or other, of course, the law must adopt this conclusion, unless it goes on the theory of retribution for guilt, and not of prevention of harm. But even to prevent harm effectually it will not do to be too exact. I do not suppose that firing a pistol at a man with intent to kill him is any the less an attempt to murder because the bullet misses its aim. Yet there the act has produced the whole effect possible to it in the [70] course of nature. It is just as impossible that that bullet under those circumstances should hit that man, as to pick an empty pocket. But there is no difficulty in saying that such an act under such circumstances is so dangerous, so far as the possibility of human foresight is concerned, that it should be punished. No one can absolutely know, though many would be pretty sure, exactly where the bullet will strike; and if the harm is done, it is a very great harm. If a man fires at a block, no harm can possibly ensue, and no theft can be committed in an empty pocket, besides that the harm of successful theft is less than that of murder. Yet it might be said that even such things as these should be punished, in order to make discouragement broad enough and easy to understand. There remain to be considered certain substantive crimes, which differ in very important ways from murder and the like, and for the explanation of which the foregoing analysis of intent in criminal attempts and analogous misdemeanors will be found of service. The type of these is larceny. Under this name acts are punished which of themselves would not be sufficient to accomplish the evil which the law seeks to prevent, and which are treated as equally criminal, whether the evil has been accomplished or not. Murder, manslaughter, and arson, on the other hand, are not committed unless the evil is accomplished, and they all consist of acts the tendency of which under the surrounding circumstances is to hurt or destroy person or property by the mere working of natural laws. In larceny the consequences immediately flowing from the act are generally exhausted with little or no harm to the owner. Goods are removed from his possession by [71] trespass, and that is all, when the crime is complete. But they must be permanently kept from him before the harm is done which the law seeks to prevent. A momentary loss of possession is not what has been guarded against with such severe penalties. What the law means to prevent is the loss of it wholly and forever, as is shown by the fact that it is not larceny to take for a temporary use without intending to deprive the owner of his property. If then the law punishes the mere act of taking, it punishes an act which will not of itself produce the evil effect sought to be prevented, and punishes it before that effect has in any way come to pass. The reason is plain enough. The law cannot wait until the property has been used up or destroyed in other hands than the owner's, or until the owner has died, in order to make sure that the harm which it seeks to prevent has been done. And for the same reason it cannot confine itself to acts likely to do that harm. For the harm of permanent loss of property will not follow from the act of taking, but only from the series of acts which constitute removing and keeping the property after it has been taken. After these preliminaries, the bearing of intent upon the crime is easily seen. According to Mr. Bishop, larceny is "the taking and removing, by trespass, of personal property which the trespasser knows to belong either generally or specially to another, with the intent to deprive such owner of his ownership therein; and perhaps it should be added, for the sake of some advantage to the trespasser, a proposition on which the decisions are not harmonious." /1/ There must be an intent to deprive such owner of his [72] ownership therein, it is said. But why? Is it because the law is more anxious not to put a man in prison for stealing unless he is actually wicked, than it is not to hang him for killing another? That can hardly be. The true answer is, that the intent is an index to the external event which probably would have happened, and that, if the law is to punish at all, it must, in this case, go on probabilities, not on accomplished facts. The analogy to the manner of dealing with attempts is plain. Theft may be called an attempt to permanently deprive a man of his property, which is punished with the same severity whether successful or not. If theft can rightly be considered in this way, intent must play the same part as in other attempts. An act which does not fully accomplish the prohibited result may be made wrongful by evidence that but for some interference it would have been followed by other acts co-ordinated with it to produce that result. This can only be shown by showing intent. In theft the intent to deprive the owner of his property establishes that the thief would have retained, or would not have taken steps to restore, the stolen goods. Nor would it matter that the thief afterwards changed his mind and returned the goods. From the point of view of attempt, the crime was already complete when the property was carried off. It may be objected to this view, that, if intent is only a makeshift which from a practical necessity takes the place of actual deprivation, it ought not to be required where the actual deprivation is wholly accomplished, provided the same criminal act produces the whole effect. Suppose, for instance, that by one and the same motion a man seizes and backs another's horse over a precipice. The whole evil which the law seeks to prevent is the natural and manifestly [73] certain consequence of the act under the known circumstances. In such a case, if the law of larceny is consistent with the theories here maintained, the act should be passed upon according to its tendency, and the actual intent of the wrong-doer not in any way considered. Yet it is possible, to say the least, that even in such a case the intent would make all the difference. I assume that the act was without excuse and wrongful, and that it would have amounted to larceny, if done for the purpose of depriving the owner of his horse. Nevertheless, if it was done for the sake of an experiment, and without actual foresight of the destruction, or evil design against the owner, the trespasser might not be held a thief. The inconsistency, if there is one, seems to be explained by the way in which the law has grown. The distinctions of the common law as to theft are not those of a broad theory of legislation; they are highly technical, and very largely dependent upon history for explanation. /1/ The type of theft is taking to one's own user It used to be, and sometimes still is, thought that the taking must be lucri catesa, for the sake of some advantage to the thief. In such cases the owner is deprived of his property by the thief's keeping it, not by its destruction, and the permanence of his loss can only be judged of beforehand by the intent to keep. The intent is therefore always necessary, and it is naturally stated in the form of a self-regarding intent. It was an advance on the old precedents when it was decided that the intent to deprive the owner of his property was sufficient. As late as 1815 the English judges stood only six to five in favor of the proposition [74] that it was larceny to take a horse intending to kill it for no other purpose than to destroy evidence against a friend. /1/ Even that case, however, did not do away with the universality of intent as a test, for the destruction followed the taking, and it is an ancient rule that the criminality of the act must be determined by the state of things at the time of the taking, and not afterwards. Whether the law of larceny would follow what seems to be the general principle of criminal law, or would be held back by tradition, could only be decided by a case like that supposed above, where the same act accomplishes both taking and destruction. As has been suggested already, tradition might very possibly prevail. Another crime in which the peculiarities noticed in larceny are still more clearly marked, and at the same time more easily explained, is burglary. It is defined as breaking and entering any dwelling-house by night with intent to commit a felony therein. /2/ The object of punishing such a breaking and entering is not to prevent trespasses, even when committed by night, but only such trespasses as are the first step to wrongs of a greater magnitude, like robbery or murder. /3/ In this case the function of intent when proved appears more clearly than in theft, but it is precisely similar. It is an index to the probability of certain future acts which the law seeks to prevent. And here the law gives evidence that this is the true explanation. For if the apprehended act did follow, then it is no longer necessary to allege that the breaking and entering was with that intent. An indictment for burglary which charges that [75] the defendant broke into a dwelling-house and stole certain property, is just as good as one which alleges that he broke in with intent to steal. /1/ It is believed that enough has now been said to explain the general theory of criminal liability, as it stands at common law. The result may be summed up as follows. All acts are indifferent per se. In the characteristic type of substantive crime acts are rendered criminal because they are done finder circumstances in which they will probably cause some harm which the law seeks to prevent. The test of criminality in such cases is the degree of danger shown by experience to attend that act under those circumstances. In such cases the mens rea, or actual wickedness of the party, is wholly unnecessary, and all reference to the state of his consciousness is misleading if it means anything more than that the circumstances in connection with which the tendency of his act is judged are the circumstances known to him. Even the requirement of knowledge is subject to certain limitations. A man must find out at his peril things which a reasonable and prudent man would have inferred from the things actually known. In some cases, especially of statutory crimes, he must go even further, and, when he knows certain facts, must find out at his peril whether the other facts are present which would make the act criminal. A man who abducts a girl from her parents in England must find out at his peril whether she is under sixteen. [76] In some cases it may be that the consequence of the act, under the circumstances, must be actually foreseen, if it is a consequence which a prudent man would not have foreseen. The reference to the prudent man, as a standard, is the only form in which blameworthiness as such is an element of crime, and what would be blameworthy in such a man is an element;--first, as a survival of true moral standards; second, because to punish what would not be blameworthy in an average member of the community would be to enforce a standard which was indefensible theoretically, and which practically was too high for that community. In some cases, actual malice or intent, in the common meaning of those words, is an element in crime. But it will be found that, when it is so, it is because the act when done maliciously is followed by harm which would not have followed the act alone, or because the intent raises a strong probability that an act, innocent in itself, will be followed by other acts or events in connection with which it will accomplish the result sought to be prevented by the law. [77] LECTURE III. -- TORTS.--TRESPASS AND NEGLIGENCE. The object of the next two Lectures is to discover whether there is any common ground at the bottom of all liability in tort, and if so, what that ground is. Supposing the attempt to succeed, it will reveal the general principle of civil liability at common law. The liabilities incurred by way of contract are more or less expressly fixed by the agreement of the parties concerned, but those arising from a tort are independent of any previous consent of the wrong-doer to bear the loss occasioned by his act. If A fails to pay a certain sum on a certain day, or to deliver a lecture on a certain night, after having made a binding promise to do so, the damages which he has to pay are recovered in accordance with his consent that some or all of the harms which may be caused by his failure shall fall upon him. But when A assaults or slanders his neighbor, or converts his neighbor's property, he does a harm which he has never consented to bear, and if the law makes him pay for it, the reason for doing so must be found in some general view of the conduct which every one may fairly expect and demand from every other, whether that other has agreed to it or not. Such a general view is very hard to find. The law did not begin with a theory. It has never worked one out. The point from which it started and that at which I shall [78] try to show that it has arrived, are on different planes. In the progress from one to the other, it is to be expected that its course should not be straight and its direction not always visible. All that can be done is to point out a tendency, and to justify it. The tendency, which is our main concern, is a matter of fact to be gathered from the cases. But the difficulty of showing it is much enhanced by the circumstance that, until lately, the substantive law has been approached only through the categories of the forms of action. Discussions of legislative principle have been darkened by arguments on the limits between trespass and case, or on the scope of a general issue. In place of a theory of tort, we have a theory of trespass. And even within that narrower limit, precedents of the time of the assize and jurata have been applied without a thought of their connection with a long forgotten procedure. Since the ancient forms of action have disappeared, a broader treatment of the subject ought to be possible. Ignorance is the best of law reformers. People are glad to discuss a question on general principles, when they have forgotten the special knowledge necessary for technical reasoning. But the present willingness to generalize is founded on more than merely negative grounds. The philosophical habit of the day, the frequency of legislation, and the ease with which the law may be changed to meet the opinions and wishes of the public, all make it natural and unavoidable that judges as well as others should openly discuss the legislative principles upon which their decisions must always rest in the end, and should base their judgments upon broad considerations of policy to which the traditions of the bench would hardly have tolerated a reference fifty years ago. [79] The business of the law of torts is to fix the dividing lines between those cases in which a man is liable for harm which he has done, and those in which he is not. But it cannot enable him to predict with certainty whether a given act under given circumstances will make him liable, because an act will rarely have that effect unless followed by damage, and for the most part, if not always, the consequences of an act are not known, but only guessed at as more or less probable. All the rules that the law can lay down beforehand are rules for determining the conduct which will be followed by liability if it is followed by harm--that is, the conduct which a man pursues at his peril. The only guide for the future to be drawn from a decision against a defendant in an action of tort is that similar acts, under circumstances which cannot be distinguished except by the result from those of the defendant, are done at the peril of the actor; that if he escapes liability, it is simply because by good fortune no harm comes of his conduct in the particular event. If, therefore, there is any common ground for all liability in tort, we shall best find it by eliminating the event as it actually turns out, and by considering only the principles on which the peril of his conduct is thrown upon the actor. We are to ask what are the elements, on the defendant's side, which must all be present before liability is possible, and the presence of which will commonly make him liable if damage follows. The law of torts abounds in moral phraseology. It has much to say of wrongs, of malice, fraud, intent, and negligence. Hence it may naturally be supposed that the risk of a man's conduct is thrown upon him as the result of some moral short-coming. But while this notion has been [80] entertained, the extreme opposite will be found to have been a far more popular opinion;--I mean the notion that a man is answerable for all the consequences of his acts, or, in other words, that he acts at his peril always, and wholly irrespective of the state of his consciousness upon the matter. To test the former opinion it would be natural to take up successively the several words, such as negligence and intent, which in the language of morals designate various well-understood states of mind, and to show their significance in the law. To test the latter, it would perhaps be more convenient to consider it under the head of the several forms of action. So many of our authorities are decisions under one or another of these forms, that it will not be safe to neglect them, at least in the first instance; and a compromise between the two modes of approaching the subject may be reached by beginning with the action of trespass and the notion of negligence together, leaving wrongs which are defined as intentional for the next Lecture. Trespass lies for unintentional, as well as for intended wrongs. Any wrongful and direct application of force is redressed by that action. It therefore affords a fair field for a discussion of the general principles of liability for unintentional wrongs at common law. For it can hardly be supposed that a man's responsibility for the consequences of his acts varies as the remedy happens to fall on one side or the other of the penumbra which separates trespass from the action on the case. And the greater part of the law of torts will be found under one or the other of those two heads. It might be hastily assumed that the action on the case [81] is founded on the defendant's negligence. But if that be so, the same doctrine must prevail in trespass. It might be assumed that trespass is founded on the defendant's having caused damage by his act, without regard to negligence. But if that be true, the law must apply the same criterion to other wrongs differing from trespass only in some technical point; as, for instance, that the property damaged was in the defendant's possession. Neither of the above assumptions, however, can be hastily permitted. It might very well be argued that the action on the case adopts the severe rule just suggested for trespass, except when the action is founded on a contract. Negligence, it might be said, had nothing to do with the common-law liability for a nuisance, and it might be added that, where negligence was a ground of liability, a special duty had to be founded in the defendant's super se assumpsit, or public calling. /1/ On the other hand, we shall see what can be said for the proposition, that even in trespass there must at least be negligence. But whichever argument prevails for the one form of action must prevail for the other. The discussion may therefore be shortened on its technical side, by confining it to trespass so far as may be practicable without excluding light to be got from other parts of the law. As has just been hinted, there are two theories of the common-law liability for unintentional harm. Both of them seem to receive the implied assent of popular textbooks, and neither of them is wanting in plausibility and the semblance of authority. The first is that of Austin, which is essentially the theory of a criminalist. According to him, the characteristic [82] feature of law, properly so called, is a sanction or detriment threatened and imposed by the sovereign for disobedience to the sovereign's commands. As the greater part of the law only makes a man civilly answerable for breaking it, Austin is compelled to regard the liability to an action as a sanction, or, in other words, as a penalty for disobedience. It follows from this, according to the prevailing views of penal law, that such liability ought only to be based upon personal fault; and Austin accepts that conclusion, with its corollaries, one of which is that negligence means a state of the party's mind. /1/ These doctrines will be referred to later, so far as necessary. The other theory is directly opposed to the foregoing. It seems to be adopted by some of the greatest common law authorities, and requires serious discussion before it can be set aside in favor of any third opinion which may be maintained. According to this view, broadly stated, under the common law a man acts at his peril. It may be held as a sort of set-off, that he is never liable for omissions except in consequence of some duty voluntarily undertaken. But the whole and sufficient ground for such liabilities as he does incur outside the last class is supposed to be that he has voluntarily acted, and that damage has ensued. If the act was voluntary, it is totally immaterial that the detriment which followed from it was neither intended nor due to the negligence of the actor. In order to do justice to this way of looking at the subject, we must remember that the abolition of the common-law forms of pleading has not changed the rules of substantive law. Hence, although pleaders now generally [83] allege intent or negligence, anything which would formerly have been sufficient to charge a defendant in trespass is still sufficient, notwithstanding the fact that the ancient form of action and declaration has disappeared. In the first place, it is said, consider generally the protection given by the law to property, both within and outside the limits of the last-named action. If a man crosses his neighbor's boundary by however innocent a mistake, or if his cattle escape into his neighbor's field, he is said to be liable in trespass quare clausum fregit. If an auctioneer in the most perfect good faith, and in the regular course of his business, sells goods sent to his rooms for the purpose of being sold, he may be compelled to pay their full value if a third person turns out to be the owner, although he has paid over the proceeds, and has no means of obtaining indemnity. Now suppose that, instead of a dealing with the plaintiff's property, the case is that force has proceeded directly from the defendant's body to the plaintiff's body, it is urged that, as the law cannot be less careful of the persons than of the property of its subjects, the only defences possible are similar to those which would have been open to an alleged trespass on land. You may show that there was no trespass by showing that the defendant did no act; as where he was thrown from his horse upon the plaintiff, or where a third person took his hand and struck the plaintiff with it. In such cases the defendant's body is file passive instrument of an external force, and the bodily motion relied on by the plaintiff is not his act at all. So you may show a justification or excuse in the conduct of the plaintiff himself. But if no such excuse is shown, and the defendant has voluntarily acted, he must answer [84] for the consequences, however little intended and however unforeseen. If, for instance, being assaulted by a third person, the defendant lifted his stick and accidentally hit the plaintiff, who was standing behind him, according to this view he is liable, irrespective of any negligence toward the party injured. The arguments for the doctrine under consideration are, for the most part, drawn from precedent, but it is sometimes supposed to be defensible as theoretically sound. Every man, it is said, has an absolute right to his person, and so forth, free from detriment at the hands of his neighbors. In the cases put, the plaintiff has done nothing; the defendant, on the other hand, has chosen to act. As between the two, the party whose voluntary conduct has caused the damage should suffer, rather than one who has had no share in producing it. We have more difficult matter to deal with when we turn to the pleadings and precedents in trespass. The declaration says nothing of negligence, and it is clear that the damage need not have been intended. The words vi et armis and contra pacere, which might seem to imply intent, are supposed to have been inserted merely to give jurisdiction to the king's court. Glanvill says it belongs to the sheriff, in case of neglect on the part of lords of franchise, to take cognizance of melees, blows, and even wounds, unless the accuser add a charge of breach of the king's peace (nisi accusator adjiciat de pace Domini Regis infracta). /1/ Reeves observes, "In this distinction between the sheriff's jurisdiction and that of the king, we see the reason of the allegation in modern indictments and writs, vi et amis, of 'the king's crown and dignity,' 'the king's [85] peace,' and 'the peace,'--this last expression being sufficient, after the peace of the sheriff had ceased to be distinguished as a separate jurisdiction." /1/ Again, it might be said that, if the defendant's intent or neglect was essential to his liability, the absence of both would deprive his act of the character of a trespass, and ought therefore to be admissible under the general issue. But it is perfectly well settled at common law that "Not guilty" only denies the act. /2/ Next comes the argument from authority. I will begin with an early and important case. /3/ It was trespass quare clausum. The defendant pleaded that he owned adjoining land, upon which was a thorn hedge; that he cut the thorns, and that they, against his will (ipso invito), fell on the plaintiff's land, and the defendant went quickly upon the same, and took them, which was the trespass complained of. And on demurrer judgment was given for the plaintiff. The plaintiff's counsel put cases which have been often repeated. One of them, Fairfax, said: "There is a diversity between an act resulting in a felony, and one resulting in a trespass.... If one is cutting trees, and the boughs fall on a man and wound him, in this case he shall have an action of trespass, &c., and also, sir, if one is shooting at butts, and his bow shakes in his hands, and kills a man, ipso invito, it is no felony, as has been said, [86] &c.; but if he wounds one by shooting, he shall have a good action of trespass against him, and yet the shooting was lawful, &c., and the wrong which the other receives was against his will, &c.; and so here, &c." Brian, another counsel, states the whole doctrine, and uses equally familiar illustrations. "When one does a thing, he is bound to do it in such a way that by his act no prejudice or damage shall be done to &c. As if I am building a house, and when the timber is being put up a piece of timber falls on my neighbor's house and breaks his house, he shall have a good action, &c.; and yet the raising of the house was lawful, and the timber fell, me invito, &c. And so if one assaults me and I cannot escape, and I in self-defence lift my stick to strike him, and in lifting it hit a man who is behind me, in this case he shall have an action against me, yet my raising my stick was lawful in self-defence, and I hit him, me invito, &c.; and so here, &C." "Littleton, J. to the same intent, and if a man is damaged he ought to be recompensed.... If your cattle come on my land and eat my grass, notwithstanding you come freshly and drive them out, you ought to make amends for what your cattle have done, be it more or less.... And, sir, if this should be law that he might enter and take the thorns, for the same reason, if he cut a large tree, he might come with his wagons and horses to carry the trees off, which is not reason, for perhaps he has corn or other crops growing, &c., and no more here, for the law is all one in great things and small.... Choke, C. J. to the same intent, for when the principal thing was not lawful, that which depends upon it was not lawful; for when he cut the thorns and they fell on my land, [87] this falling was not lawful, and therefore his coming to take them out was not lawful. As to what was said about their falling in ipso invito, that is no plea, but he ought to show that he could not do it in any other way, or that he did all that was in his power to keep them out." Forty years later, /1/ the Year Books report Rede, J. as adopting the argument of Fairfax in the last case. In trespass, he says, "the intent cannot be construed; but in felony it shall be. As when a man shoots at butts and kills a man, it is not felony et il ser come n'avoit l'entent de luy tuer; and so of a tiler on a house who with a stone kills a man unwittingly, it is not felony. /2/ But when a man shoots at the butts and wounds a man, though it is against his will, he shall be called a trespasser against his intent." There is a series of later shooting cases, Weaver v. Ward, /3/ Dickenson v. Watson, /4/ and Underwood v. Hewson, /5/ followed by the Court of Appeals of New York in Castle v. Duryee, /6/ in which defences to the effect that the damage was done accidentally and by misfortune, and against the will of the defendant, were held insufficient. In the reign of Queen Elizabeth it was held that where a man with a gun at the door of his house shot at a fowl, and thereby set fire to his own house and to the house of his neighbor, he was liable in an action on the case generally, the declaration not being on the custom of the realm, [88] "viz. for negligently keeping his fire." "For the injury is the same, although this mischance was not by a common negligence, but by misadventure." /1/ The above-mentioned instances of the stick and shooting at butts became standard illustrations; they are repeated by Sir Thomas Raymond, in Bessey v. Olliot, /2/ by Sir William Blackstone, in the famous squib case, /3/ and by other judges, and have become familiar through the textbooks. Sir T. Raymond, in the above case, also repeats the thought and almost the words of Littleton, J., which have been quoted, and says further: "In all civil acts the law doth not so much regard the intent of the actor, as the loss and damage of the party suffering." Sir William Blackstone also adopts a phrase from Dickenson v. Watson, just cited: "Nothing but inevitable necessity" is a justification. So Lord Ellenborough, in Leame v. Bray: /4/ "If the injury were received from the personal act of another, it was deemed sufficient to make it trespass"; or, according to the more frequently quoted language of Grose, J., in the same case: "Looking into all the cases from the Year Book in the 21 H. VII. down to the latest decision on the subject, I find the principle to be, that if the injury be done by the act of the party himself at the time, or he be the immediate cause of it, though it happen accidentally or by misfortune, yet he is answerable in trespass." Further citations are deemed unnecessary. In spite, however, of all the arguments which may be [89] urged for the rule that a man acts at his peril, it has been rejected by very eminent courts, even under the old forms of action. In view of this fact, and of the further circumstance that, since the old forms have been abolished, the allegation of negligence has spread from the action on the case to all ordinary declarations in tort which do not allege intent, probably many lawyers would be surprised that any one should think it worth while to go into the present discussion. Such is the natural impression to be derived from daily practice. But even if the doctrine under consideration had no longer any followers, which is not the case, it would be well to have something more than daily practice to sustain our views upon so fundamental a question; as it seems to me at least, the true principle is far from being articulately grasped by all who are interested in it, and can only be arrived at after a careful analysis of what has been thought hitherto. It might be thought enough to cite the decisions opposed to the rule of absolute responsibility, and to show that such a rule is inconsistent with admitted doctrines and sound policy. But we may go further with profit, and inquire whether there are not strong grounds for thinking that the common law has never known such a rule, unless in that period of dry precedent which is so often to be found midway between a creative epoch and a period of solvent philosophical reaction. Conciliating the attention of those who, contrary to most modern practitioners, still adhere to the strict doctrine, by reminding them once more that there are weighty decisions to be cited adverse to it, and that, if they have involved an innovation, the fact that it has been made by such magistrates as Chief Justice Shaw goes far to prove that the change was politic, I [90] think I may assert that a little reflection will show that it was required not only by policy, but by consistency. I will begin with the latter. The same reasoning which would make a man answerable in trespass for all damage to another by force directly resulting from his own act, irrespective of negligence or intent, would make him answerable in case for the like damage similarly resulting from the act of his servant, in the course of the latter's employment. The discussions of the company's negligence in many railway cases would therefore be wholly out of place, for although, to be sure, there is a contract which would make the company liable for negligence, that contract cannot be taken to diminish any liability which would otherwise exist for a trespass on the part of its employees. More than this, the same reasoning would make a defendant responsible for all damage, however remote, of which his act could be called the cause. So long, at least, as only physical or irresponsible agencies, however unforeseen, co-operated with the act complained of to produce the result, the argument which would resolve the case of accidentally striking the plaintiff, when lifting a stick in necessary self-defence, adversely to the defendant, would require a decision against him in every case where his act was a factor in the result complained of. The distinction between a direct application of force, and causing damage indirectly, or as a more remote consequence of one's act, although it may determine whether the form of action should be trespass or case, does not touch the theory of responsibility, if that theory be that a man acts at his peril. [91] As was said at the outset, if the strict liability is to be maintained at all, it must be maintained throughout. A principle cannot be stated which would retain the strict liability in trespass while abandoning it in case. It cannot be said that trespass is for acts alone, and case for consequences of those acts. All actions of trespass are for consequences of acts, not for the acts themselves. And some actions of trespass are for consequences more remote from the defendant's act than in other instances where the remedy would be case. An act is always a voluntary muscular contraction, and nothing else. The chain of physical sequences which it sets in motion or directs to the plaintiff's harm is no part of it, and very generally a long train of such sequences intervenes. An example or two will make this extremely clear. When a man commits an assault and battery with a pistol, his only act is to contract the muscles of his arm and forefinger in a certain way, but it is the delight of elementary writers to point out what a vast series of physical changes must take place before the harm is done. Suppose that, instead of firing a pistol, he takes up a hose which is discharging water on the sidewalk, and directs it at the plaintiff, he does not even set in motion the physical causes which must co-operate with his act to make a battery. Not only natural causes, but a living being, may intervene between the act and its effect. Gibbons v. Pepper, /1/ which decided that there was no battery when a man's horse was frightened by accident or a third person and ran away with him, and ran over the plaintiff, takes the distinction that, if the rider by spurring is the cause of [92] the accident, then he is guilty. In Scott v. Shepherd, /1/ already mentioned, trespass was maintained against one who had thrown a squib into a crowd, where it was tossed from hand to hand in self-defence until it burst and injured the plaintiff. Here even human agencies were a part of the chain between the defendant's act and the result, although they were treated as more or less nearly automatic, in order to arrive at the decision. Now I repeat, that, if principle requires us to charge a man in trespass when his act has brought force to bear on another through a comparatively short train of intervening causes, in spite of his having used all possible care, it requires the same liability, however numerous and unexpected the events between the act and the result. If running a man down is a trespass when the accident can be referred to the rider's act of spurring, why is it not a tort in every case, as was argued in Vincent v. Stinehour, /2/ seeing that it can always be referred more remotely to his act of mounting and taking the horse out? Why is a man not responsible for the consequences of an act innocent in its direct and obvious effects, when those consequences would not have followed but for the intervention of a series of extraordinary, although natural, events? The reason is, that, if the intervening events are of such a kind that no foresight could have been expected to look out for them, the defendant is not to blame for having failed to do so. It seems to be admitted by the English judges that, even on the question whether the acts of leaving dry trimmings in hot weather by the side of a railroad, and then sending an engine over the track, are [93] negligent,--that is, are a ground of liability,--the consequences which might reasonably be anticipated are material. /1/ Yet these are acts which, under the circumstances, can hardly be called innocent in their natural and obvious effects. The same doctrine has been applied to acts in violation of statute which could not reasonably have been expected to lead to the result complained of. /2/ But there is no difference in principle between the case where a natural cause or physical factor intervenes after the act in some way not to be foreseen, and turns what seemed innocent to harm, and the case where such a cause or factor intervenes, unknown, at the time; as, for the matter of that, it did in the English cases cited. If a man is excused in the one case because he is not to blame, he must be in the other. The difference taken in Gibbons v. Pepper, cited above, is not between results which are and those which are not the consequences of the defendant's acts: it is between consequences which he was bound as a reasonable man to contemplate, and those which he was not. Hard spurring is just so much more likely to lead to harm than merely riding a horse in the street, that the court thought that the defendant would be bound to look out for the consequences of the one, while it would not hold him liable for those resulting merely from the other; [94] because the possibility of being run away with when riding quietly, though familiar, is comparatively slight. If, however, the horse had been unruly, and had been taken into a frequented place for the purpose of being broken, the owner might have been liable, because "it was his fault to bring a wild horse into a place where mischief might probably be done." To return to the example of the accidental blow with a stick lifted in self-defence, there is no difference between hitting a person standing in one's rear and hitting one who was pushed by a horse within range of the stick just as it was lifted, provided that it was not possible, under the circumstances, in the one case to have known, in the other to have anticipated, the proximity. In either case there is wanting the only element which distinguishes voluntary acts from spasmodic muscular contractions as a ground of liability. In neither of them, that is to say, has there been an opportunity of choice with reference to the consequence complained of,--a chance to guard against the result which has come to pass. A choice which entails a concealed consequence is as to that consequence no choice. The general principle of our law is that loss from accident must lie where it falls, and this principle is not affected by the fact that a human being is the instrument of misfortune. But relatively to a given human being anything is accident which he could not fairly have been expected to contemplate as possible, and therefore to avoid. In the language of the late Chief Justice Nelson of New York: "No case or principle can be found, or if found can be maintained, subjecting an individual to liability for [95] an act done without fault on his part.... All the cases concede that an injury arising from inevitable accident, or, which in law or reason is the same thing, from an act that ordinary human care and foresight are unable to guard against, is but the misfortune of the sufferer, and lays no foundation for legal responsibility." /1/ If this were not so, any act would be sufficient, however remote, which set in motion or opened the door for a series of physical sequences ending in damage; such as riding the horse, in the case of the runaway, or even coming to a place where one is seized with a fit and strikes the plaintiff in an unconscious spasm. Nay, why need the defendant have acted at all, and why is it not enough that his existence has been at the expense of the plaintiff? The requirement of an act is the requirement that the defendant should have made a choice. But the only possible purpose of introducing this moral element is to make the power of avoiding the evil complained of a condition of liability. There is no such power where the evil cannot be foreseen. /2/ Here we reach the argument from policy, and I shall accordingly postpone for a moment the discussion of trespasses upon land, and of conversions, and will take up the liability for cattle separately at a later stage. A man need not, it is true, do this or that act, the term act implies a choice,--but he must act somehow. Furthermore, the public generally profits by individual activity. As action cannot be avoided, and tends to the public good, there is obviously no policy in throwing the hazard of what is at once desirable and inevitable upon the actor. [96] The state might conceivably make itself a mutual insurance company against accidents, and distribute the burden of its citizens' mishaps among all its members. There might be a pension for paralytics, and state aid for those who suffered in person or estate from tempest or wild beasts. As between individuals it might adopt the mutual insurance principle pro tanto, and divide damages when both were in fault, as in the rusticum judicium of the admiralty, or it might throw all loss upon the actor irrespective of fault. The state does none of these things, however, and the prevailing view is that its cumbrous and expensive machinery ought not to be set in motion unless some clear benefit is to be derived from disturbing the status quo. State interference is an evil, where it cannot be shown to be a good. Universal insurance, if desired, can be better and more cheaply accomplished by private enterprise. The undertaking to redistribute losses simply on the ground that they resulted from the defendant's act would not only be open to these objections, but, as it is hoped the preceding discussion has shown, to the still graver one of offending the sense of justice. Unless my act is of a nature to threaten others, unless under the circumstances a prudent man would have foreseen the possibility of harm, it is no more justifiable to make me indemnify my neighbor against the consequences, than to make me do the same thing if I had fallen upon him in a fit, or to compel me to insure him against lightning. I must now recur to the conclusions drawn from innocent trespasses upon land, and conversions, and the supposed analogy of those cases to trespasses against the person, lest the law concerning the latter should be supposed to lie between two antinomies, each necessitating with equal cogency an opposite conclusion to the other. [97] Take first the case of trespass upon land attended by actual damage. When a man goes upon his neighbor's land, thinking it is his own, he intends the very act or consequence complained of. He means to intermeddle with a certain thing in a certain way, and it is just that intended intermeddling for which he is sued. /1/ Whereas, if he accidentally hits a stranger as he lifts his staff in self defence, the fact, which is the gist of the action,--namely, the contact between the staff and his neighbor's head,--was not intended, and could not have been foreseen. It might be answered, to be sure, that it is not for intermeddling with property, but for intermeddling with the plaintiff's property, that a man is sued; and that in the supposed cases, just as much as in that of the accidental blow, the defendant is ignorant of one of the facts making up the total environment, and which must be present to make his action wrong. He is ignorant, that is to say, that the true owner either has or claims any interest in the property in question, and therefore he does not intend a wrongful act, because he does not mean to deal with his neighbor's property. But the answer to this is, that he does intend to do the damage complained of. One who diminishes the value of property by intentional damage knows it belongs to somebody. If he thinks it belongs to himself, he expects whatever harm he may do to come out of his own pocket. It would be odd if he were to get rid of the burden by discovering that it belonged to his neighbor. It is a very different thing to say that he who intentionally does harm must bear the loss, from saying that one from whose acts harm follows accidentally, as [98] a consequence which could not have been foreseen, must bear it. Next, suppose the act complained of is an exercise of dominion over the plaintiff's property, such as a merely technical trespass or a conversion. If the defendant thought that the property belonged to himself, there seems to be no abstract injustice in requiring him to know the limits of his own titles, or, if he thought that it belonged to another, in holding him bound to get proof of title before acting. Consider, too, what the defendant's liability amounts to, if the act, whether an entry upon land or a conversion of chattels, has been unattended by damage to the property, and the thing has come back to the hands of the true owner. The sum recovered is merely nominal, and the payment is nothing more than a formal acknowledgment of the owner's title; which, considering the effect of prescription and statutes of limitation upon repeated acts of dominion, is no more than right. /1/ All semblance of injustice disappears when the defendant is allowed to avoid the costs of an action by tender or otherwise. But suppose the property has not come back to the hands of the true owner. If the thing remains in the hands of the defendant, it is clearly right that he should surrender it. And if instead of the thing itself he holds the proceeds of a sale, it is as reasonable to make him pay over its value in trover or assumpsit as it would have been to compel a surrender of the thing. But the question whether the defendant has subsequently paid over the proceeds of the sale of a chattel to a third person, cannot affect the rights of the true owner of the [99] chattel. In the supposed case of an auctioneer, for instance, if he had paid the true owner, it would have been an answer to his bailor's claim. If he has paid his bailor instead, he has paid one whom he was not bound to pay, and no general principle requires that this should be held to divest the plaintiff's right. Another consideration affecting the argument that the law as to trespasses upon property establishes a general principle, is that the defendant's knowledge or ignorance of the plaintiff's title is likely to lie wholly in his own breast, and therefore hardly admits of satisfactory proof. Indeed, in many cases it cannot have been open to evidence at all at the time when the law was settled, before parties were permitted to testify. Accordingly, in Basely v. Clarkson, /1/ where the defence set up to an action of trespass quare clausum was that the defendant in mowing his own land involuntarily and by mistake mowed down some of the plaintiff's grass, the plaintiff had judgment on demurrer. "For it appears the fact was voluntary, and his intention and knowledge are not traversable; they can't be known." This language suggests that it would be sufficient to explain the law of trespass upon property historically, without attempting to justify it. For it seems to be admitted that if the defendant's mistake could be proved it might be material. /2/ It will be noticed, further, that any general argument from the law of trespass upon laud to that governing trespass against the person is shown to be misleading by the law as to cattle. The owner is bound at his peril [100] to keep them off his neighbor's premises, but he is not bound at his peril in all cases to keep them from his neighbor's person. The objections to such a decision as supposed in the case of an auctioneer do not rest on the general theory of liability, but spring altogether from the special exigencies of commerce. It does not become unjust to hold a person liable for unauthorized intermeddling with another's property, until there arises the practical necessity for rapid dealing. But where this practical necessity exists, it is not surprising to find, and we do find, a different tendency in the law. The absolute protection of property, however natural to a primitive community more occupied in production than in exchange, is hardly consistent with the requirements of modern business. Even when the rules which we have been considering were established, the traffic of the public markets was governed by more liberal principles. On the continent of Europe it was long ago decided that the policy of protecting titles must yield to the policy of protecting trade. Casaregis held that the general principle nemo plus juris in alium transferre potest quam ipse habet must give way in mercantile transactions to possession vaut titre. /1/ In later times, as markets overt have lost their importance, the Factors' Acts and their successive amendments have tended more and more in the direction of adopting the Continental doctrine. I must preface the argument from precedent with a reference to what has been said already in the first Lecture about early forms of liability, and especially about [101] the appeals. It was there shown that the appeals de pace et plagis and of mayhem became the action of trespass, and that those appeals and the early actions of trespass were always, so far as appears, for intentional wrongs. /1/ The contra pacem in the writ of trespass was no doubt inserted to lay a foundation for the king's writ; but there seems to be no reason to attribute a similar purpose to vi et armis, or cum vi sua, as it was often put. Glanvill says that wounds are within the sheriff's jurisdiction, unless the appellor adds a charge of breach of the king's peace. /2/ Yet the wounds are given vi et armis as much in the one case as in the other. Bracton says that the lesser wrongs described by him belong to the king's jurisdiction, "because they are sometimes against the peace of our lord the king," /3/ while, as has been observed, they were supposed to be always committed intentionally. It might even perhaps be inferred that the allegation contra pacem was originally material, and it will be remembered that trespasses formerly involved the liability to pay a fine to the king. /4/ If it be true that trespass was originally confined to intentional wrongs, it is hardly necessary to consider the argument drawn from the scope of the general issue. In form it was a mitigation of the strict denial de verbo in verbum of the ancient procedure, to which the inquest given by the king's writ was unknown. /5/ The strict form seems to have lasted in England some time after the trial of the issue by recognition was introduced. /6/ When [102] a recognition was granted, the inquest was, of course, only competent to speak to the facts, as has been said above. /1/ When the general issue was introduced, trespass was still confined to intentional wrongs. We may now take up the authorities. It will be remembered that the earlier precedents are of a date when the assize and jurata had not given place to the modern jury. These bodies spoke from their own knowledge to an issue defined by the writ, or to certain familiar questions of fact arising in the trial of a cause, but did not hear the whole case upon evidence adduced. Their function was more limited than that which has been gained by the jury, and it naturally happened that, when they had declared what the defendant had done, the judges laid down the standard by which those acts were to be measured without their assistance. Hence the question in the Year Books is not a loose or general inquiry of the jury whether they think the alleged trespasser was negligent on such facts as they may find, but a well-defined issue of law, to be determined by the court, whether certain acts set forth upon the record are a ground of liability. It is possible that the judges may have dealt pretty strictly with defendants, and it is quite easy to pass from the premise that defendants have been held trespassers for a variety of acts, without mention of neglect, to the conclusion that any act by which another was damaged will make the actor chargeable. But a more exact scrutiny of the early books will show that liability in general, then as later, was [103] founded on the opinion of the tribunal that the defendant ought to have acted otherwise, or, in other words, that he was to blame. Returning first to the case of the thorns in the Year Book, /1/ it will be seen that the falling of the thorns into the plaintiff's close, although a result not wished by the defendant, was in no other sense against his will. When he cut the thorns, he did an act which obviously and necessarily would have that consequence, and he must be taken to have foreseen and not to have prevented it. Choke, C. J. says, "As to what was said about their falling in, ipso invito, that is no plea, but he ought to show that he could not do it in any other way, or that he did all in his power to keep them out"; and both the judges put the unlawfulness of the entry upon the plaintiff's land as a consequence of the unlawfulness of dropping the thorns there. Choke admits that, if the thorns or a tree had been blown over upon the plaintiff's land, the defendant might have entered to get them. Chief Justice Crew says of this case, in Millen v. Fawdry, /2/ that the opinion was that "trespass lies, because he did not plead that he did his best endeavor to hinder their falling there; yet this was a hard case." The statements of law by counsel in argument may be left on one side, although Brian is quoted and mistaken for one of the judges by Sir William Blackstone, in Scott v. Shepherd. The principal authorities are the shooting cases, and, as shooting is an extra-hazardous act, it would not be surprising if it should be held that men do it at their peril in public places. The liability has been put on the general ground of fault, however, wherever the line of necessary [104] precaution may be drawn. In Weaver v. Ward, /1/ the defendant set up that the plaintiff and he were skirmishing in a trainband, and that when discharging his piece he wounded the plaintiff by accident and misfortune, and against his own will. On demurrer, the court says that "no man shall be excused of a trespass,... except it may be judged utterly without his fault. As if a man by force take my hand and strike you, or if here the defendant had said, that the plaintiff ran cross his piece when it was discharging, or had set forth the case with the circumstances so as it had appeared to the court that it had been inevitable, and that the defendant had committed no negligence to give occasion to the hurt." The later cases simply follow Weaver v. Ward. The quotations which were made above in favor of the strict doctrine from Sir T. Raymond, in Bessey v. Olliot, and from Sir William Blackstone, in Scott v. Shepherd, are both taken from dissenting opinions. In the latter case it is pretty clear that the majority of the court considered that to repel personal danger by instantaneously tossing away a squib thrown by another upon one's stall was not a trespass, although a new motion was thereby imparted to the squib, and the plaintiff's eye was put out in consequence. The last case cited above, in stating the arguments for absolute responsibility, was Leame v. Bray. /2/ The question under discussion was whether the action (for running down the plaintiff) should not have been case rather than trespass, the defendant founding his objection to trespass on the ground that the injury happened through his neglect, but was not done wilfully. There was therefore no question of absolute responsibility for one's acts [105] before the court, as negligence was admitted; and the language used is all directed simply to the proposition that the damage need not have been done intentionally. In Wakeman v. Robinson, /1/another runaway case, there was evidence that the defendant pulled the wrong rein, and that he ought to have kept a straight course. The jury were instructed that, if the injury was occasioned by an immediate act of the defendant, it was immaterial whether the act was wilful or accidental. On motion for a new trial, Dallas, C. J. said, "If the accident happened entirely without default on the part of the defendant, or blame imputable to him, the action does not lie ....The accident was clearly occasioned by the default of the defendant. The weight of evidence was all that way. I am now called upon to grant a new trial, contrary to the justice of the case, upon the ground, that the jury were not called on to consider whether the accident was unavoidable, or occasioned by the fault of the defendant. There can be no doubt that the learned judge who presided would have taken the opinion of the jury on that ground, if he had been requested so to do." This language may have been inapposite under the defendant's plea (the general issue), but the pleadings were not adverted to, and the doctrine is believed to be sound. In America there have been several decisions to the point. In Brown v. Kendall, /2/ Chief Justice Shaw settled the question for Massachusetts. That was trespass for assault and battery, and it appeared that the defendant, while trying to separate two fighting dogs, had raised his stick over his shoulder in the act of striking, and had accidentally hit the plaintiff in the eye, inflicting upon him a [106] severe injury. The case was stronger for the plaintiff than if the defendant had been acting in self-defence; but the court held that, although the defendant was bound by no duty to separate the dogs, yet, if he was doing a lawful act, he was not liable unless he was wanting in the care which men of ordinary prudence would use under the circumstances, and that the burden was on the plaintiff to prove the want of such care. In such a matter no authority is more deserving of respect than that of Chief Justice Shaw, for the strength of that great judge lay in an accurate appreciation of the requirements of the community whose officer he was. Some, indeed many, English judges could be named who have surpassed him in accurate technical knowledge, but few have lived who were his equals in their understanding of the grounds of public policy to which all laws must ultimately be referred. It was this which made him, in the language of the late Judge Curtis, the greatest magistrate which this country has produced. Brown v. Kendall has been followed in Connecticut, /1/ in a case where a man fired a pistol, in lawful self-defence as he alleged, and hit a bystander. The court was strongly of opinion that the defendant was not answerable on the general principles of trespass, unless there was a failure to use such care as was practicable under the circumstances. The foundation of liability in trespass as well as case was said to be negligence. The Supreme Court of the United States has given the sanction of its approval to the same doctrine. /2/ The language of Harvey v. Dunlop /3/ has been [107] quoted, and there is a case in Vermont which tends in the same direction. /1/ Supposing it now to be conceded that the general notion upon which liability to an action is founded is fault or blameworthiness in some sense, the question arises, whether it is so in the sense of personal moral shortcoming, as would practically result from Austin's teaching. The language of Rede, J., which has been quoted from the Year Book, gives a sufficient answer. "In trespass the intent" (we may say more broadly, the defendant's state of mind) "cannot be construed." Suppose that a defendant were allowed to testify that, before acting, he considered carefully what would be the conduct of a prudent man under the circumstances, and, having formed the best judgment he could, acted accordingly. If the story was believed, it would be conclusive against the defendant's negligence judged by a moral standard which would take his personal characteristics into account. But supposing any such evidence to have got before the jury, it is very clear that the court would say, Gentlemen, the question is not whether the defendant thought his conduct was that of a prudent man, but whether you think it was. /2/ Some middle point must be found between the horns of this dilemma. [108 The standards of the law are standards of general application. The law takes no account of the infinite varieties of temperament, intellect, and education which make the internal character of a given act so different in different men. It does not attempt to see men as God sees them, for more than one sufficient reason. In the first place, the impossibility of nicely measuring a man's powers and limitations is far clearer than that of ascertaining his knowledge of law, which has been thought to account for what is called the presumption that every man knows the law. But a more satisfactory explanation is, that, when men live in society, a certain average of conduct, a sacrifice of individual peculiarities going beyond a certain point, is necessary to the general welfare. If, for instance, a man is born hasty and awkward, is always having accidents and hurting himself or his neighbors, no doubt his congenital defects will be allowed for in the courts of Heaven, but his slips are no less troublesome to his neighbors than if they sprang from guilty neglect. His neighbors accordingly require him, at his proper peril, to come up to their standard, and the courts which they establish decline to take his personal equation into account. The rule that the law does, in general, determine liability by blameworthiness, is subject to the limitation that minute differences of character are not allowed for. The law considers, in other words, what would be blameworthy in the average man, the man of ordinary intelligence and prudence, and determines liability by that. If we fall below the level in those gifts, it is our misfortune; so much as that we must have at our peril, for the reasons just given. But he who is intelligent and prudent does not act at his peril, in theory of law. On the contrary, it is [109] only when he fails to exercise the foresight of which he is capable, or exercises it with evil intent, that he is answerable for the consequences. There are exceptions to the principle that every man is presumed to possess ordinary capacity to avoid harm to his neighbors, which illustrate the rule, and also the moral basis of liability in general. When a man has a distinct defect of such a nature that all can recognize it as making certain precautions impossible, he will not be held answerable for not taking them. A blind man is not required to see at his peril; and although he is, no doubt, bound to consider his infirmity in regulating his actions, yet if he properly finds himself in a certain situation, the neglect of precautions requiring eyesight would not prevent his recovering for an injury to himself, and, it may be presumed, would not make him liable for injuring another. So it is held that, in cases where he is the plaintiff, an infant of very tender years is only bound to take the precautions of which an infant is capable; the same principle may be cautiously applied where he is defendant. /1/ Insanity is a more difficult matter to deal with, and no general rule can be laid down about it. There is no doubt that in many cases a man may be insane, and yet perfectly capable of taking the precautions, and of being influenced by the motives, which the circumstances demand. But if insanity of a pronounced type exists, manifestly incapacitating the sufferer from complying with the rule which he has broken, good sense would require it to be admitted as an excuse. Taking the qualification last established in connection with the general proposition previously laid down, it will [110] now be assumed that, on the one hand, the law presumes or requires a man to possess ordinary capacity to avoid harming his neighbors, unless a clear and manifest incapacity be shown; but that, on the other, it does not in general hold him liable for unintentional injury, unless, possessing such capacity, he might and ought to have foreseen the danger, or, in other words, unless a man of ordinary intelligence and forethought would have been to blame for acting as he did. The next question is, whether this vague test is all that the law has to say upon the matter, and the same question in another form, by whom this test is to be applied. Notwithstanding the fact that the grounds of legal liability are moral to the extent above explained, it must be borne in mind that law only works within the sphere of the senses. If the external phenomena, the manifest acts and omissions, are such as it requires, it is wholly indifferent to the internal phenomena of conscience. A man may have as bad a heart as he chooses, if his conduct is within the rules. In other words, the standards of the law are external standards, and, however much it may take moral considerations into account, it does so only for the purpose of drawing a line between such bodily motions and rests as it permits, and such as it does not. What the law really forbids, and the only thing it forbids, is the act on the wrong side of the line, be that act blameworthy or otherwise. Again, any legal standard must, in theory, be one which would apply to all men, not specially excepted, under the same circumstances. It is not intended that the public force should fall upon an individual accidentally, or at the whim of any body of men. The standard, that is, [111] must be fixed. In practice, no doubt, one man may have to pay and another may escape, according to the different feelings of different juries. But this merely shows that the law does not perfectly accomplish its ends. The theory or intention of the law is not that the feeling of approbation or blame which a particular twelve may entertain should be the criterion. They are supposed to leave their idiosyncrasies on one side, and to represent the feeling of the community. The ideal average prudent man, whose equivalent the jury is taken to be in many cases, and whose culpability or innocence is the supposed test, is a constant, and his conduct under given circumstances is theoretically always the same. Finally, any legal standard must, in theory, be capable of being known. When a man has to pay damages, he is supposed to have broken the law, and he is further supposed to have known what the law was. If, now, the ordinary liabilities in tort arise from failure to comply with fixed and uniform standards of external conduct, which every man is presumed and required to know, it is obvious that it ought to be possible, sooner or later, to formulate these standards at least to some extent, and that to do so must at last be the business of the court. It is equally clear that the featureless generality, that the defendant was bound to use such care as a prudent man would do under the circumstances, ought to be continually giving place to the specific one, that he was bound to use this or that precaution under these or those circumstances. The standard which the defendant was bound to come up to was a standard of specific acts or omissions, with reference to the specific circumstances in which he found himself. If in the whole department of [112] unintentional wrongs the courts arrived at no further utterance than the question of negligence, and left every case, without rudder or compass, to the jury, they would simply confess their inability to state a very large part of the law which they required the defendant to know, and would assert, by implication, that nothing could be learned by experience. But neither courts nor legislatures have ever stopped at that point. From the time of Alfred to the present day, statutes and decisions have busied themselves with defining the precautions to be taken in certain familiar cases; that is, with substituting for the vague test of the care exercised by a prudent man, a precise one of specific acts or omissions. The fundamental thought is still the same, that the way prescribed is that in which prudent men are in the habit of acting, or else is one laid down for cases where prudent men might otherwise be in doubt. It will be observed that the existence of the external tests of liability which will be mentioned, while it illustrates the tendency of the law of tort to become more and more concrete by judicial decision and by statute, does not interfere with the general doctrine maintained as to the grounds of liability. The argument of this Lecture, although opposed to the doctrine that a man acts or exerts force at his peril, is by no means opposed to the doctrine that he does certain particular acts at his peril. It is the coarseness, not the nature, of the standard which is objected to. If, when the question of the defendant's negligence is left to a jury, negligence does not mean the actual state of the defendant's mind, but a failure to act as a prudent man of average intelligence would have done, he is required to conform to an objective standard at his [113] peril, even in that case. When a more exact and specific rule has been arrived at, he must obey that rule at his peril to the same extent. But, further, if the law is wholly a standard of external conduct, a man must always comply with that standard at his peril. Some examples of the process of specification will be useful. In LL. Alfred, 36, /1/ providing for the case of a man's staking himself on a spear carried by another, we read, "Let this (liability) be if the point be three fingers higher than the hindmost part of the shaft; if they be both on a level,... be that without danger." The rule of the road and the sailing rules adopted by Congress from England are modern examples of such statutes. By the former rule, the question has been narrowed from the vague one, Was the party negligent? to the precise one, Was he on the right or left of the road? To avoid a possible misconception, it may be observed that, of course, this question does not necessarily and under all circumstances decide that of liability; a plaintiff may have been on the wrong side of the road, as he may have been negligent, and yet the conduct of the defendant may have been unjustifiable, and a ground of liability. /2/ So, no doubt, a defendant could justify or excuse being on the wrong side, under some circumstances. The difference between alleging that a defendant was on the wrong side of the road, and that he was negligent, is the difference between an allegation of facts requiring to be excused by a counter allegation of further facts to prevent their being a ground of liability, and an allegation which involves a conclusion of law, and denies in advance the existence of an [114] excuse. Whether the former allegation ought not to be enough, and whether the establishment of the fact ought not to shift the burden of proof, are questions which belong to the theory of pleading and evidence, and could be answered either way consistently with analogy. I should have no difficulty in saying that the allegation of facts which are ordinarily a ground of liability, and which would be so unless excused, ought to be sufficient. But the forms of the law, especially the forms of pleading, do not change with every change of its substance, and a prudent lawyer would use the broader and safer phrase. The same course of specification which has been illustrated from the statute-book ought also to be taking place in the growth of judicial decisions. That this should happen is in accordance with the past history of the law. It has been suggested already that in the days of the assize and jurata the court decided whether the facts constituted a ground of liability in all ordinary cases. A question of negligence might, no doubt, have gone to the jury. Common sense and common knowledge are as often sufficient to determine whether proper care has been taken of an animal, as they are to say whether A or B owns it. The cases which first arose were not of a kind to suggest analysis, and negligence was used as a proximately simple element for a long time before the need or possibility of analysis was felt. Still, when an issue of this sort is found, the dispute is rather what the acts or omissions of the defendant were than on the standard of conduct. /1/ The [115] distinction between the functions of court and jury does not come in question until the parties differ as to the standard of conduct. Negligence, like ownership, is a complex conception. Just as the latter imports the existence of certain facts, and also the consequence (protection against all the world) which the law attaches to those facts; the former imports the existence of certain facts (conduct) and also the consequence (liability) which the law attaches to those facts. In most cases the question is upon the facts, and it is only occasionally that one arises on the consequence. It will have been noticed how the judges pass on the defendant's acts (on grounds of fault and public policy) in the case of the thorns, and that in Weaver v. Ward /1/it is said that the facts constituting an excuse, and showing that the defendant was free from negligence, should have been spread upon the record, in order that the court might judge. A similar requirement was laid down with regard to the defence of probable cause in an action for malicious prosecution. /2/ And to this day the question of probable cause is always passed on by the court. Later evidence will be found in what follows. There is, however, an important consideration, which has not yet been adverted to. It is undoubtedly possible that those who have the making of the law should deem it wise to put the mark higher in some cases than the point established by common practice at which blameworthiness begins. For instance, in Morris v. Platt, /2/ the court, while declaring in the strongest terms that, in general, [116] negligence is the foundation of liability for accidental trespasses, nevertheless hints that, if a decision of the point were necessary, it might hold a defendant to a stricter rule where the damage was caused by a pistol, in view of the danger to the public of the growing habit of carrying deadly weapons. Again, it might well seem that to enter a man's house for the purpose of carrying a present, or inquiring after his health when he was ill, was a harmless and rather praiseworthy act, although crossing the owner's boundary was intentional. It is not supposed that an action would lie at the present day for such a cause, unless the defendant had been forbidden the house. Yet in the time of Henry VIII. it was said to be actionable if without license, "for then under that color my enemy might be in my house and kill me." /1/ There is a clear case where public policy establishes a standard of overt acts without regard to fault in any sense. In like manner, policy established exceptions to the general prohibition against entering another's premises, as in the instance put by Chief Justice Choke in the Year Book, of a tree being blown over upon them, or when the highway became impassable, or for the purpose of keeping the peace. /2/ Another example may perhaps be found in the shape which has been given in modern times to the liability for animals, and in the derivative principle of Rylands v. Fletcher, /3/ that when a person brings on his lands, and collects and keeps there, anything likely to do mischief if it escapes, he must keep it in at his peril; and, if he does not do so, is prima facie answerable for all the [117] damage which is the natural consequence of its escape. Cases of this sort do not stand on the notion that it is wrong to keep cattle, or to have a reservoir of water, as might have been thought with more plausibility when fierce and useless animals only were in question. /1/ It may even be very much for the public good that the dangerous accumulation should be made (a consideration which might influence the decision in some instances, and differently in different jurisdictions); but as there is a limit to the nicety of inquiry which is possible in a trial, it may be considered that the safest way to secure care is to throw the risk upon the person who decides what precautions shall be taken. The liability for trespasses of cattle seems to lie on the boundary line between rules based on policy irrespective of fault, and requirements intended to formulate the conduct of a prudent man. It has been shown in the first Lecture how this liability for cattle arose in the early law, and how far the influence of early notions might be traced in the law of today, Subject to what is there said, it is evident that the early discussions turn on the general consideration whether the owner is or is not to blame. /2/ But they do not stop there: they go on to take practical distinctions, based on common experience. Thus, when the defendant chased sheep out of his land with a dog, and as soon as the sheep were out called in his dog, but the dog pursued them into adjoining land, the chasing of the sheep beyond the defendant's line was held no trespass, because "the nature of a dog is such that he cannot be ruled suddenly." /3/ [118] It was lawful in ploughing to turn the horses on adjoining land, and if while so turning the beasts took a mouthful of grass, or subverted the soil with the plough, against the will of the driver, he had a good justification, because the law will recognize that a man cannot at every instant govern his cattle as he will. /1/ So it was said that, if a man be driving cattle through a town, and one of them goes into another man's house, and he follows him, trespass does not lie for this. /2/ So it was said by Doderidge, J., in the same case, that if deer come into my land out of the forest, and I chase them with dogs, it is excuse enough for me to wind my horn to recall the dogs, because by this the warden of the forest has notice that a deer is being chased. /3/ The very case of Mason v. Keeling, /4/ which is referred to in the first Lecture for its echo of primitive notions, shows that the working rules of the law had long been founded on good sense. With regard to animals not then treated as property, which in the main were the wilder animals, the law was settled that, "if they are of a tame nature, there must be notice of the ill quality; and the law takes notice, that a dog is not of a fierce nature, but rather the contrary." /5/ If the animals "are such as are naturally [119] mischievous in their kind, he shall answer for hurt done by them, without any notice." /1/ The latter principle has been applied to the case of a bear, /2/ and amply accounts for the liability of the owner of such animals as horses and oxen in respect of trespasses upon land, although, as has been seen, it was at one time thought to stand upon his ownership. It is said to be the universal nature of cattle to stray, and, when straying in cultivated land, to do damage by trampling down and eating the crops, whereas a dog does no harm. It is also said to be usual and easy to restrain them. /3/ If, as has been suggested, the historical origin of the rule was different, it does not matter. Following the same line of thought, the owner of cattle is not held absolutely answerable for all damage which they may do the person. According to Lord Holt in the alcove opinion, these animals, "which are not so familiar to mankind" as dogs, "the owner ought to confine, and take all reasonable caution that they do no mischief.... But... if the owner puts a horse or an ox to grass in his field, which is adjoining to the highway, and the horse or the ox breaks the hedge and runs into the highway, and kicks or gores some passenger, an action will not lie against the owner; otherwise, if he had notice that they had done such a thing before." [120] Perhaps the most striking authority for the position that the judge's duties are not at an end when the question of negligence is reached, is shown by the discussions concerning the law of bailment. Consider the judgment in Coggs v. Bernard, /1/ the treatises of Sir William Jones and Story, and the chapter of Kent upon the subject. They are so many attempts to state the duty of the bailee specifically, according to the nature of the bailment and of the object bailed. Those attempts, to be sure, were not successful, partly because they were attempts to engraft upon the native stock a branch of the Roman law which was too large to survive the process, but more especially because the distinctions attempted were purely qualitative, and were therefore useless when dealing with a jury. /2/ To instruct a jury that they must find the defendant guilty of gross negligence before he can be charged, is open to the reproach that for such a body the word "gross" is only a vituperative epithet. But it would not be so with a judge sitting in admiralty without a jury. The Roman law and the Supreme Court of the United States agree that the word means something. /3/ Successful or not, it is enough for the present argument that the attempt has been made. The principles of substantive law which have been established by the courts are believed to have been somewhat obscured by having presented themselves oftenest in the form of rulings upon the sufficiency of evidence. When a judge rules that there is no evidence of negligence, he does something more than is embraced in an ordinary ruling that there is no evidence of a fact. He rules that [121] acts or omissions proved or in question do not constitute a ground of legal liability, and in this way the law is gradually enriching itself from daily life, as it should. Thus, in Crafton v. Metropolitan Railway Co., /1/ the plaintiff slipped on the defendant's stairs and was severely hurt. The cause of his slipping was that the brass nosing of the stairs had been worn smooth by travel over it, and a builder testified that in his opinion the staircase was unsafe by reason of this circumstance and the absence of a hand-rail. There was nothing to contradict this except that great numbers of persons had passed over the stairs and that no accident had happened there, and the plaintiff had a verdict. The court set the verdict aside, and ordered a nonsuit. The ruling was in form that there was no evidence of negligence to go to the jury; but this was obviously equivalent to saying, and did in fact mean, that the railroad company had done all that it was bound to do in maintaining such a staircase as was proved by the plaintiff. A hundred other equally concrete instances will be found in the text-books. On the other hand, if the court should rule that certain acts or omissions coupled with damage were conclusive evidence of negligence unless explained, it would, in substance and in truth, rule that such acts or omissions were a ground of liability, /2/ or prevented a recovery, as the case might be. Thus it is said to be actionable negligence to let a house for a dwelling knowing it to be so infected with small-pox as to be dangerous to health, and concealing the knowledge. /3/ To explain the acts or omissions in such a [122] case would be to prove different conduct from that ruled upon, or to show that they were not, juridically speaking, the cause of the damage complained of. The ruling assumes, for the purposes of the ruling, that the facts in evidence are all the facts. The cases which have raised difficulties needing explanation are those in which the court has ruled that there was prima facie evidence of negligence, or some evidence of negligence to go to the jury. Many have noticed the confusion of thought implied in speaking of such cases as presenting mixed questions of law and fact. No doubt, as has been said above, the averment that the defendant has been guilty of negligence is a complex one: first, that he has done or omitted certain things; second, that his alleged conduct does not come up to the legal standard. And so long as the controversy is simply on the first half, the whole complex averment is plain matter for the jury without special instructions, just as a question of ownership would be where the only dispute was as to the fact upon which the legal conclusion was founded. /1/ But when a controversy arises on the second half, the question whether the court or the jury ought to judge of the defendant's conduct is wholly unaffected by the accident, whether there is or is not also a dispute as to what that conduct was. If there is such a dispute, it is entirely possible to give a series of hypothetical instructions adapted to every state of facts which it is open to the jury to find. If there is no such dispute, the court may still take their opinion as to the standard. The problem is [123] to explain the relative functions of court and jury with regard to the latter. When a case arises in which the standard of conduct, pure and simple, is submitted to the jury, the explanation is plain. It is that the court, not entertaining any clear views of public policy applicable to the matter, derives the rule to be applied from daily experience, as it has been agreed that the great body of the law of tort has been derived. But the court further feels that it is not itself possessed of sufficient practical experience to lay down the rule intelligently. It conceives that twelve men taken from the practical part of the community can aid its judgment. /1/ Therefore it aids its conscience by taking the opinion of the jury. But supposing a state of facts often repeated in practice, is it to be imagined that the court is to go on leaving the standard to the jury forever? Is it not manifest, on the contrary, that if the jury is, on the whole, as fair a tribunal as it is represented to be, the lesson which can be got from that source will be learned? Either the court will find that the fair teaching of experience is that the conduct complained of usually is or is not blameworthy, and therefore, unless explained, is or is not a ground of liability; or it will find the jury oscillating to and fro, and will see the necessity of making up its mind for itself. There is no reason why any other such question should not be settled, as well as that of liability for stairs with smooth strips of brass upon their edges. The exceptions would mainly be found where the standard was rapidly changing, as, for instance, in some questions of medical treatment. /2/ [124] If this be the proper conclusion in plain cases, further consequences ensue. Facts do not often exactly repeat themselves in practice; but cases with comparatively small variations from each other do. A judge who has long sat at nisi prius ought gradually to acquire a fund of experience which enables him to represent the common sense of the community in ordinary instances far better than an average jury. He should be able to lead and to instruct them in detail, even where he thinks it desirable, on the whole, to take their opinion. Furthermore, the sphere in which he is able to rule without taking their opinion at all should be continually growing. It has often been said, that negligence is pure matter of fact, or that, after the court has declared the evidence to be such that negligence may be inferred from it, the jury are always to decide whether the inference shall be drawn. /1/ But it is believed that the courts, when they lay down this broad proposition, are thinking of cases where the conduct to be passed upon is not proved directly, and the main or only question is what that conduct was, not what standard shall be applied to it after it is established. Most cases which go to the jury on a ruling that there is evidence from which they may find negligence, do not go to them principally on account of a doubt as to the standard, but of a doubt as to the conduct. Take the case where the fact in proof is an event such as the dropping of a brick from a railway bridge over a highway upon the plaintiff, the fact must be inferred that the dropping was [125] due, not to a sudden operation of weather, but to a gradual falling out of repair which it was physically possible for the defendant to have prevented, before there can be any question as to the standard of conduct. /1/ So, in the case of a barrel falling from a warehouse window, it must be found that the defendant or his servants were in charge of it, before any question of standard can arise. /2/ It will be seen that in each of these well-known cases the court assumed a rule which would make the defendant liable if his conduct was such as the evidence tended to prove. When there is no question as to the conduct established by the evidence, as in the case of a collision between two trains belonging to the same company, the jury have, sometimes at least, been told in effect that, if they believed the evidence, the defendant was liable. /3/ The principal argument that is urged in favor of the view that a more extended function belongs to the jury as matter of right, is the necessity of continually conforming our standards to experience. No doubt the general foundation of legal liability in blameworthiness, as determined by the existing average standards of the community, should always be kept in mind, for the purpose of keeping such concrete rules as from time to time may be laid down conformable to daily life. No doubt this conformity is the practical justification for requiring a man to know the civil law, as the fact that crimes are also generally sins is one of the practical justifications for requiring a man to know the criminal law. But these considerations only lead to [126] the conclusion that precedents should be overruled when they become inconsistent with present conditions; and this has generally happened, except with regard to the construction of deeds and wills. On the other hand, it is very desirable to know as nearly as we can the standard by which we shall be judged at a given moment, and, moreover, the standards for a very large part of human conduct do not vary from century to century. The considerations urged in this Lecture are of peculiar importance in this country, or at least in States where the law is as it stands in Massachusetts. In England, the judges at nisi prius express their opinions freely on the value and weight of the evidence, and the judges in banc, by consent of parties, constantly draw inferences of fact. Hence nice distinctions as to the province of court and jury are not of the first necessity. But when judges are forbidden by statute to charge the jury with respect to matters of fact, and when the court in banc will never hear a case calling for inferences of fact, it becomes of vital importance to understand that, when standards of conduct are left to the jury, it is a temporary surrender of a judicial function which may be resumed at any moment in any case when the court feels competent to do so. Were this not so, the almost universal acceptance of the first proposition in this Lecture, that the general foundation of liability for unintentional wrongs is conduct different from that of a prudent man under the circumstances, would leave all our rights and duties throughout a great part of the law to the necessarily more or less accidental feelings of a jury. It is perfectly consistent with the views maintained in this Lecture that the courts have been very slow to withdraw questions of negligence from the jury, without distinguishing [127] nicely whether the doubt concerned the facts or the standard to be applied. Legal, like natural divisions, however clear in their general outline, will be found on exact scrutiny to end in a penumbra or debatable land. This is the region of the jury, and only cases falling on this doubtful border are likely to be carried far in court. Still, the tendency of the law must always be to narrow the field of uncertainty. That is what analogy, as well as the decisions on this very subject, would lead us to expect. The growth of the law is very apt to take place in this way. Two widely different cases suggest a general distinction, which is a clear one when stated broadly. But as new eases cluster around the opposite poles, and begin to approach each other, the distinction becomes more difficult to trace; the determinations are made one way or the other on a very slight preponderance of feeling, rather than of articulate reason; and at last a mathematical line is arrived at by the contact of contrary decisions, which is so far arbitrary that it might equally well have been drawn a little farther to the one side or to the other, but which must have been drawn somewhere in the neighborhood of where it falls. /1/ In this way exact distinctions have been worked out upon questions in which the elements to be considered are few. For instance, what is a reasonable time for presenting negotiable paper, or what is a difference in kind and what a difference only in quality, or the rule against perpetuities. An example of the approach of decisions towards each other from the opposite poles, and of the function of the jury midway, is to be found in the Massachusetts adjudications, [128] that, if a child of two years and four months is unnecessarily sent unattended across and down a street in a large city, he cannot recover for a negligent injury; /1/ that to allow a boy of eight to be abroad alone is not necessarily negligent; /2/ and that the effect of permitting a boy of ten to be abroad after dark is for the jury; /3/ a coupled with the statement, which may be ventured on without authority, that such a permission to a young man of twenty possessed of common intelligence has no effect whatever. Take again the law of ancient lights in England. An obstruction to be actionable must be substantial. Under ordinary circumstances the erection of a structure a hundred yards off, and one foot above the ground, would not be actionable. One within a foot of the window, and covering it, would be, without any finding of a jury beyond these facts. In doubtful cases midway, the question whether the interference was substantial has been left to the jury. /4/ But as the elements are few and permanent, an inclination has been shown to lay down a definite rule, that, in ordinary cases, the building complained of must not be higher than the distance of its base from the dominant windows. And although this attempt to work out an exact line requires much caution, it is entirely philosophical in spirit. /5/ The same principle applies to negligence. If the whole evidence in the case was that a party, in full command of [129] senses and intellect, stood on a railway track, looking at an approaching engine until it ran him down, no judge would leave it to the jury to say whether the conduct was prudent. If the whole evidence was that he attempted to cross a level track, which was visible for half a mile each way, and on which no engine was in sight, no court would allow a jury to find negligence. Between these extremes are cases which would go to the jury. But it is obvious that the limit of safety in such cases, supposing no further elements present, could be determined to a foot by mathematical calculation. The trouble with many cases of negligence is, that they are of a kind not frequently recurring, so as to enable any given judge to profit by long experience with juries to lay down rules, and that the elements are so complex that courts are glad to leave the whole matter in a lump for the jury's determination. I reserve the relation between negligent and other torts for the next Lecture. LECTURE IV. -- FRAUD, MALICE, AND INTENT.--THE THEORY OF TORTS. [130] The next subjects to be considered are fraud, malice, and intent. In the discussion of unintentional wrongs, the greatest difficulty to be overcome was found to be the doctrine that a man acts always at his peril. In what follows, on the other hand, the difficulty will be to prove that actual wickedness of the kind described by the several words just mentioned is not an element in the civil wrongs to which those words are applied. It has been shown, in dealing with the criminal law, that, when we call an act malicious in common speech, we mean that harm to another person was intended to come of it, and that such harm was desired for its own sake as an end in itself. For the purposes of the criminal law, however, intent alone was found to be important, and to have the same consequences as intent with malevolence superadded. Pursuing the analysis, intent was found to be made up of foresight of the harm as a consequence, coupled with a desire to bring it about, the latter being conceived as the motive for the act in question. Of these, again, foresight only seemed material. As a last step, foresight was reduced to its lowest term, and it was concluded that, subject to exceptions which were explained, the general basis of criminal liability was knowledge, at the time of action, [131] of facts from which common experience showed that certain harmful results were likely to follow. It remains to be seen whether a similar reduction is possible on the civil side of the law, and whether thus fraudulent, malicious, intentional, and negligent wrongs can be brought into a philosophically continuous series. A word of preliminary explanation will be useful. It has been shown in the Lecture just referred to that an act, although always importing intent, is per se indifferent to the law. It is a willed, and therefore an intended coordination of muscular contractions. But the intent necessarily imported by the act ends there. And all muscular motions or co-ordinations of them are harmless apart from concomitant circumstances, the presence of which is not necessarily implied by the act itself. To strike out with the fist is the same act, whether done in a desert or in a crowd. The same considerations which have been urged to show that an act alone, by itself, does not and ought not to impose either civil or criminal liability, apply, at least frequently, to a series of acts, or to conduct, although the series shows a further co-ordination and a further intent. For instance, it is the same series of acts to utter a sentence falsely stating that a certain barrel contains No. 1 Mackerel, whether the sentence is uttered in the secrecy of the closet, or to another man in the course of a bargain. There is, to be sure, in either case, the further intent, beyond the co-ordination of muscles for a single sound, to allege that a certain barrel has certain contents,--an intent necessarily shown by the ordering of the words. But both the series of acts and the intent are per se indifferent. They are innocent when spoken in solitude, and [132] are only a ground of liability when certain concomitant circumstances are shown. The intent which is meant when spoken of as an element of legal liability is an intent directed toward the harm complained of, or at least toward harm. It is not necessary in every case to carry the analysis back to the simple muscular contractions out of which a course of conduct is made up. On the same principle that requires something more than an act followed by damage to make a man liable, we constantly find ourselves at liberty to assume a co-ordinated series of acts as a proximately simple element, per se indifferent, in considering what further circumstances or facts must be present before the conduct in question is at the actor's peril. It will save confusion and the need of repetition if this is borne in mind in the following discussion. The chief forms of liability in which fraud, malice, and intent are said to be necessary elements, are deceit, slander and libel, malicious prosecution, and conspiracy, to which, perhaps, may be added trover. Deceit is a notion drawn from the moral world, and in its popular sense distinctly imports wickedness. The doctrine of the common law with regard to it is generally stated in terms which are only consistent with actual guilt, and all actual guilty intent. It is said that a man is liable to an action for deceit if he makes a false representation to another, knowing it to be false, but intending that the other should believe and act upon it, if the person addressed believes it, and is thereby persuaded to act to his own harm. This is no doubt the typical case, and it is a case of intentional moral wrong. Now, what is the party's conduct here. It consists in uttering certain words, [133] so ordered that the utterance of them imports a knowledge of the meaning which they would convey if heard. But that conduct with only that knowledge is neither moral nor immoral. Go one step further, and add the knowledge of another's presence within hearing, still the act has no determinate character. The elements which make it immoral are the knowledge that the statement is false, and the intent that it shall be acted on. The principal question then is, whether this intent can be reduced to the same terms as it has been in other cases. There is no difficulty in the answer. It is perfectly clear that the intent that a false representation should be acted on would be conclusively established by proof that the defendant knew that the other party intended to act upon it. If the defendant foresaw the consequence of his acts, he is chargeable, whether his motive was a desire to induce the other party to act, or simply an unwillingness for private reasons to state the truth. If the defendant knew a present fact (the other party's intent), which, according to common experience, made it likely that his act would have the harmful consequence, he is chargeable, whether he in fact foresaw the consequence or not. In this matter the general conclusion follows from a single instance. For the moment it is admitted that in one case knowledge of a present fact, such as the other party's intent to act on the false statement, dispenses with proof of an intent to induce him to act upon it, it is admitted that the lesser element is all that is necessary in the larger compound. For intent embraces knowledge sufficing for foresight, as has been shown. Hence, when you prove intent you prove knowledge, and intent may often [134] be the easier to prove of the two. But when you prove knowledge you do not prove intent. It may be said, however, that intent is implied or presumed in such a case as has been supposed. But this is only helping out a false theory by a fiction. It is very much like saying that a consideration is presumed for an instrument under seal; which is merely a way of reconciling the formal theory that all contracts must have a consideration with the manifest fact that sealed instruments do not require one. Whenever it is said that a certain thing is essential to liability, but that it is conclusively presumed from something else, there is always ground for suspicion that the essential clement is to be found in that something else, and not in what is said to be presumed from it. With regard to the intent necessary to deceit, we need not stop with the single instance which has been given. The law goes no farther than to require proof either of the intent, or that the other party was justified in inferring such intention. So that the whole meaning of the requirement is, that the natural and manifest tendency of the representation, under the known circumstances, must have been to induce the opinion that it was made with a view to action, and so to induce action on the faith of it. The standard of what is called intent is thus really an external standard of conduct under the known circumstances, and the analysis of the criminal law holds good here. Nor is this all. The law pursuing its course of specification, as explained in the last Lecture, decides what is the tendency of representations in certain cases,--as, for instance, that a horse is sound at the time of making a [135] sale; or, in general, of any statement of fact which it is known the other party intends to rely on. Beyond these scientific rules lies the vague realm of the jury. The other moral element in deceit is knowledge that the statement was false. With this I am not strictly concerned, because all that is necessary is accomplished when the elements of risk are reduced to action and knowledge. But it will aid in the general object of showing that the tendency of the law everywhere is to transcend moral and reach external standards, if this knowledge of falsehood can be transmuted into a formula not necessarily importing guilt, although, of course, generally accompanied by it in fact. The moment we look critically at it, we find the moral side shade away. The question is, what known circumstances are enough throw the risk of a statement upon him who makes it, if it induces another man to act, and it turns out untrue. Now, it is evident that a man may take the risk of his statement by express agreement, or by an implied one which the law reads into his bargain. He may in legal language warrant the truth of it, and if it is not true, the law treats it as a fraud, just as much when he makes it fully believing it, as when he knows that it is untrue, and means to deceive. If, in selling a horse, the seller warranted him to be only five years old, and in fact he was thirteen, the seller could be sued for a deceit at common law, although he thought the horse was only five. /1/ The common-law liability for the truth of statements is, therefore, more extensive than the sphere of actual moral fraud. But, again, it is enough in general if a representation [136] is made recklessly, without knowing whether it is true or false. Now what does "recklessly" mean. It does not mean actual personal indifference to the truth of the statement. It means only that the data for the statement were so far insufficient that a prudent man could not have made it without leading to the inference that he was indifferent. That is to say, repeating an analysis which has been gone through with before, it means that the law, applying a general objective standard, determines that, if a man makes his statement on those data, he is liable, whatever was the state of his mind, and although he individually may have been perfectly free from wickedness in making it. Hence similar reasoning to that which has been applied already to intent may be applied to knowledge of falsity. Actual knowledge may often be easier to prove than that the evidence was insufficient to warrant the statement, and when proved it contains the lesser element. But as soon as the lesser element is shown to be enough, it is shown that the law is ready to apply an external or objective standard here also. Courts of equity have laid down the doctrine in terms which are so wholly irrespective of the actual moral condition of the defendant as to go to an opposite extreme. It is said that "when a representation in a matter of business is made by one man to another calculated to induce him to adapt his conduct to it, it is perfectly immaterial whether the representation is made knowing it to be untrue, or whether it is made believing it to be true, if, in fact, it was untrue." /1/ Perhaps the actual decisions could be reconciled on a [137] narrower principle, but the rule just stated goes the length of saying that in business matters a man makes every statement (of a kind likely to be acted on) at his peril. This seems hardly justifiable in policy. The moral starting point of liability in general should never be forgotten, and the law cannot without disregarding it hold a man answerable for statements based on facts which would have convinced a wise and prudent man of their truth. The public advantage and necessity of freedom in imparting information, which privileges even the slander of a third person, ought a fortiori, it seems to me, to privilege statements made at the request of the party who complains of them. The common law, at any rate, preserves the reference to morality by making fraud the ground on which it goes. It does not hold that a man always speaks at his peril. But starting from the moral ground, it works out an external standard of what would be fraudulent in the average prudent member of the community, and requires every member at his peril to avoid that. As in other cases, it is gradually accumulating precedents which decide that certain statements under certain circumstances are at the peril of the party who makes them. The elements of deceit which throw the risk of his conduct upon a party are these. First, making a statement of facts purporting to be serious. Second, the known presence of another within hearing. Third, known facts sufficient to warrant the expectation or suggest the probability that the other party will act on the statement. (What facts are sufficient has been specifically determined by the courts in some instances; in others, no doubt, the question would go to the jury on the principles heretofore explained.) Fourth, the [138] falsehood of the statement. This must be known, or else the known evidence concerning the matter of the statement must be such as would not warrant belief according to the ordinary course of human experience. (On this point also the court may be found to lay down specific rules in some cases. /1/) I next take up the law of slander. It has often been said that malice is one of the elements of liability, and the doctrine is commonly stated in this way: that malice must exist, but that it is presumed by law from the mere speaking of the words; that again you may rebut this presumption of malice by showing that the words were spoken under circumstances which made the communication privileged,--as, for instance, by a lawyer in the necessary course of his argument, or by a person answering in good faith to inquiries as to the character of a former servant,-- and then, it is said, the plaintiff may meet this defence in some cases by showing that the words were spoken with actual malice. All this sounds as if at least actual intent to cause the damage complained of, if not malevolence, were at the bottom of this class of wrongs. Yet it is not so. For although the use of the phrase "malice" points as usual to an original moral standard, the rule that it is presumed upon proof of speaking certain words is equivalent to saying that the overt conduct of speaking those words may be actionable whether the consequence of damage to the plaintiff was intended or not. And this fails in with the general theory, because the manifest tendency of slanderous words is to harm the person of whom they are spoken. Again, the real substance of the defence is not that the damage [139] was not intended,--that would be no defence at all; but that, whether it was intended or not,--that is, even if the defendant foresaw it and foresaw it with pleasure,--the manifest facts and circumstances under which he said it were such that the law considered the damage to the plaintiff of less importance than the benefit of free speaking. It is more difficult to apply the same analysis to the last stage of the process, but perhaps it is not impossible. It is said that the plaintiff may meet a case of privilege thus made out on the part of the defendant, by proving actual malice, that is, actual intent to cause the damage complained of. But how is this actual malice made out? It is by showing that the defendant knew the statement which he made was false, or that his untrue statements were grossly in excess of what the occasion required. Now is it not very evident that the law is looking to a wholly different matter from the defendant's intent? The fact that the defendant foresaw and foresaw with pleasure the damage to the plaintiff, is of no more importance in this case than it would be where the communication was privileged. The question again is wholly a question of knowledge, or other external standard. And what makes even knowledge important? It is that the reason for which a man is allowed in the other instances to make false charges against his neighbors is wanting. It is for the public interest that people should be free to give the best information they can under certain circumstances without fear, but there is no public benefit in having lies told at any time; and when a charge is known to be false, or is in excess of what is required by the occasion, it is not necessary to make that charge in order to speak freely, and [140] therefore it falls under the ordinary rule, that certain charges are made at the party's peril in case they turn out to be false, whether evil consequences were intended or not. The defendant is liable, not because his intent was evil, but because he made false charges without excuse. It will be seen that the peril of conduct here begins farther back than with deceit, as the tendency of slander is more universally harmful. There must be some concomitant circumstances. There must at least be a human being in existence whom the statement designates. There must be another human being within hearing who understands the statement, and the statement must be false. But it is arguable that the latter of these facts need not be known, as certainly the falsity of the charge need not be, and that a man must take the risk of even an idle statement being heard, unless he made it under known circumstances of privilege. It would be no great curtailment of freedom to deny a man immunity in attaching a charge of crime to the name of his neighbor, even when he supposes himself alone. But it does not seem clear that the law would go quite so far as that. The next form of liability is comparatively insignificant. I mean the action for malicious prosecution. A man may recover damages against another for maliciously and without probable cause instituting a criminal, or, in some cases, a civil prosecution against him upon a false charge. The want of probable cause refers, of course, only to the state of the defendant's knowledge, not to his intent. It means the absence of probable cause in the facts known to the defendant when he instituted the suit. But the standard applied to the defendant's consciousness is external to it. The question is not whether he thought the [141] facts to constitute probable cause, but whether the court thinks they did. Then as to malice. The conduct of the defendant consists in instituting proceedings on a charge which is in fact false, and which has not prevailed. That is the root of the whole matter. If the charge was true, or if the plaintiff has been convicted, even though he may be able now to prove that he was wrongly convicted, the defendant is safe, however great his malice, and however little ground he had for his charge. Suppose, however, that the charge is false, and does not prevail. It may readily be admitted that malice did originally mean a malevolent motive, an actual intent to harm the plaintiff by making a false charge. The legal remedy here, again, started from the moral basis, the occasion for it, no doubt, being similar to that which gave rise to the old law of conspiracy, that a man's enemies would sometimes seek his destruction by setting the criminal law in motion against him. As it was punishable to combine for such a purpose, it was concluded, with some hesitation, that, when a single individual wickedly attempted the same thing, he should be liable on similar grounds. /1/ I must fully admit that there is weighty authority to the effect that malice in its ordinary sense is to this day a distinct fact to be proved and to be found by the jury. But this view cannot be accepted without hesitation. It is admitted that, on the one side, the existence of probable cause, believed in, is a justification notwithstanding malice; /2/ that, on the other, "it is not enough to show [142] that the case appeared sufficient to this particular party, but it must be sufficient to induce a sober, sensible and discreet person to act upon it, or it must fail as a justification for the proceeding upon general grounds." /1/ On the one side, malice alone will not make a man liable for instituting a groundless prosecution; on the other, his justification will depend, not on his opinion of the facts, but on that of the court. When his actual moral condition is disregarded to this extent, it is a little hard to believe that the existence of an improper motive should be material. Yet that is what malice must mean in this case, if it means anything. /2/ For the evil effects of a successful indictment are of course intended by one who procures all other to be indicted. I cannot but think that a jury would be told that knowledge or belief that the charge was false at the time of making it was conclusive evidence of malice. And if so, on grounds which need not be repeated, malice is not the important thing, but the facts known to the defendant. Nevertheless, as it is obviously treading on delicate ground to make it actionable to set the regular processes of the law in motion, it is, of course, entirely possible to say that the action shall be limited to those cases where the charge was preferred from improper motives, at least if the defendant thought that there was probable cause. Such a limitation would stand almost alone in the law of civil liability. But the nature of the wrong is peculiar, and, moreover, it is quite consistent with the theory of liability here advanced that it should be confined in any given instance to actual wrong-doing in a moral sense. The only other cause of action in which the moral condition [143] of the defendant's consciousness might seem to be important is conspiracy. The old action going by that name was much like malicious prosecution, and no doubt was originally confined to cases where several persons had conspired to indict another from malevolent motives. But in the modern action on the case, where conspiracy is charged, the allegation as a rule only means that two or more persons were so far co-operating in their acts that the act of any one was the act of all. Generally speaking, the liability depends not on the co-operation or conspiring, but on the character of the acts done, supposing them all to be done by one man, or irrespective of the question whether they were done by one or several. There may be cases, to be sure, in which the result could not be accomplished, or the offence could not ordinarily be proved, without a combination of several; as, for instance, the removal of a teacher by a school board. The conspiracy would not affect the case except in a practical way, but the question would be raised whether, notwithstanding the right of the board to remove, proof that they were actuated by malevolence would not make a removal actionable. Policy, it might be said, forbids going behind their judgment, but actual evil motives coupled with the absence of grounds withdraw this protection, because policy, although it does not require them to take the risk of being right, does require that they should judge honestly on the merits. /1/ Other isolated instances like the last might, perhaps, be found in different parts of the law, in which actual malevolence would affect a man's liability for his conduct. Again, in trover for the conversion of another's chattel, where the dominion exercised over it was of a slight and ambiguous [144] nature, it has been said that the taking must be "with the intent of exercising an ownership over the chattel inconsistent with the real owner's right of possession." /1/ But this seems to be no more than a faint shadow of the doctrine explained with regard to larceny, and does not require any further or special discussion. Trover is commonly understood to go, like larceny, on the plaintiff's being deprived of his property, although in practice every possessor has the action, and, generally speaking, the shortest wrongful withholding of possession is a conversion. Be the exceptions more or less numerous, the general purpose of the law of torts is to secure a man indemnity against certain forms of harm to person, reputation, or estate, at the hands of his neighbors, not because they are wrong, but because they are harms. The true explanation of the reference of liability to a moral standard, in the sense which has been explained, is not that it is for the purpose of improving men's hearts, but that it is to give a man a fair chance to avoid doing the harm before he is held responsible for it. It is intended to reconcile the policy of letting accidents lie where they fall, and the reasonable freedom of others with the protection of the individual from injury. But the law does not even seek to indemnify a man from all harms. An unrestricted enjoyment of all his possibilities would interfere with other equally important enjoyments on the part of his neighbors. There are certain things which the law allows a man to do, notwithstanding the fact that he foresees that harm to another will follow from them. He may charge a man with crime if the charge is true. He may establish himself in business where he foresees that [145] of his competition will be to diminish the custom of another shopkeeper, perhaps to ruin him. He may a building which cuts another off from a beautiful prospect, or he may drain subterranean waters and thereby drain another's well; and many other cases might be put. As any of these things may be done with foresight of their evil consequences, it would seem that they might be done with intent, and even with malevolent intent, to produce them. The whole argument of this Lecture and the preceding tends to this conclusion. If the aim of liability is simply to prevent or indemnify from harm so far as is consistent with avoiding the extreme of making a man answer for accident, when the law permits the harm to be knowingly inflicted it would be a strong thing if the presence of malice made any difference in its decisions. That might happen, to be sure, without affecting the general views maintained here, but it is not to be expected, and the weight of authority is against it. As the law, on the one hand, allows certain harms to be inflicted irrespective of the moral condition of him who inflicts them, so, at the other extreme, it may on grounds of policy throw the absolute risk of certain transactions on the person engaging in them, irrespective of blameworthiness in any sense. Instances of this sort have been mentioned in the last Lecture, /1/ and will be referred to again. Most liabilities in tort lie between these two extremes, and are founded on the infliction of harm which the defendant had a reasonable opportunity to avoid at the time of the acts or omissions which were its proximate cause. Rut as fast as specific rules are worked out in place of the [146] vague reference to the conduct of the average man, they range themselves alongside of other specific rules based on public policy, and the grounds from which they spring cease to be manifest. So that, as will be seen directly, rules which seem to lie outside of culpability in any sense have sometimes been referred to remote fault, while others which started from the general notion of negligence may with equal ease be referred to some extrinsic ground of policy. Apart from the extremes just mentioned, it is now easy to see how the point at which a man's conduct begins to be at his own peril is generally fixed. When the principle is understood on which that point is determined by the law of torts, we possess a common ground of classification, and a key to the whole subject, so far as tradition has not swerved the law from a consistent theory. It has been made pretty clear from what precedes, that I find that ground in knowledge of circumstances accompanying an act or conduct indifferent but for those circumstances. But it is worth remarking, before that criterion is discussed, that a possible common ground is reached at the preceding step in the descent from malice through intent and foresight. Foresight is a possible common denominator of wrongs at the two extremes of malice and negligence. The purpose of the law is to prevent or secure a man indemnity from harm at the hands of his neighbors, so far as consistent with other considerations which have been mentioned, and excepting, of course, such harm as it permits to be intentionally inflicted. When a man foresees that harm will result from his conduct, the principle which exonerates him from accident no longer applies, and he is liable. But, as has been shown, he is bound to foresee [147] whatever a prudent and intelligent man would have foreseen, and therefore he is liable for conduct from which such a man would have foreseen that harm was liable to follow. Accordingly, it would be possible to state all cases of negligence in terms of imputed or presumed foresight. It would be possible even to press the presumption further, applying the very inaccurate maxim, that every man is presumed to intend the natural consequences of his own acts; and this mode of expression will, in fact, be found to have been occasionally used, /1/ more especially in the criminal law, where the notion of intent has a stronger foothold. /2/ The latter fiction is more remote and less philosophical than the former; but, after all, both are equally fictions. Negligence is not foresight, but precisely the want of it; and if foresight were presumed, the ground of the presumption, and therefore the essential element, would be the knowledge of facts which made foresight possible. Taking knowledge, then, as the true starting-point, the next question is how to determine the circumstances necessary to be known in any given case in order to make a man liable for the consequences of his act. They must be such as would have led a prudent man to perceive danger, although not necessarily to foresee the specific harm. But this is a vague test. How is it decided what those circumstances are? The answer must be, by experience. But there is one point which has been left ambiguous in the preceding Lecture and here, and which must be touched upon. It has been assumed that conduct which [148] the man of ordinary intelligence would perceive to be dangerous under the circumstances, would be blameworthy if pursued by him. It might not be so, however. Suppose that, acting under the threats of twelve armed men, which put him in fear of his life, a man enters another's close and takes a horse. In such a case, he actually contemplates and chooses harm to another as the consequence of his act. Yet the act is neither blameworthy nor punishable. But it might be actionable, and Rolle, C. J. ruled that it was so in Gilbert v. Stone. /1/ If this be law, it goes the full length of deciding that it is enough if the defendant has had a chance to avoid inflicting the harm complained of. And it may well be argued that, although he does wisely to ransom his life as he best may, there is no reason why he should be allowed to intentionally and permanently transfer his misfortunes to the shoulders of his neighbors. It cannot be inferred, from the mere circumstance that certain conduct is made actionable, that therefore the law regards it as wrong, or seeks to prevent it. Under our mill acts a man has to pay for flowing his neighbor's lands, in the same way that he has to pay in trover for converting his neighbor's goods. Yet the law approves and encourages the flowing of lands for the erection of mills. Moral predilections must not be allowed to influence our minds in settling legal distinctions. If we accept the test of the liability alone, how do we distinguish between trover and the mill acts? Or between conduct which is prohibited, and that which is merely taxed? The only distinction which I can see is in the difference of the collateral consequences attached to the two classes of conduct. In the one, the maxim in pari delicto potior est [149] conditio defendentis, and the invalidity of contracts contemplating it, show that the conduct is outside the protection of the law. In the other, it is otherwise. /1/ This opinion is confirmed by the fact, that almost the only cases in which the distinction between prohibition and taxation comes up concern the application of these maxims. But if this be true, liability to an action does not necessarily import wrong-doing. And this may be admitted without at all impairing the force of the argument in the foregoing Lecture, which only requires that people should not be made to pay for accidents which they could not have avoided. It is doubtful, however, whether the ruling of Chief Justice Rolle would now be followed. The squib case, Scott v. Shepherd, and the language of some text-books, are more or less opposed to it. /2/ If the latter view is law, then an act must in general not only be dangerous, but one which would be blameworthy on the part of the average man, in order to make the actor liable. But, aside from such exceptional cases as Gilbert v. Stone, the two tests agree, and the difference need not be considered in what follows. I therefore repeat, that experience is the test by which it is decided whether the degree of danger attending given conduct under certain known circumstances is sufficient to throw the risk upon the party pursuing it. For instance, experience shows that a good many guns supposed to be unloaded go off and hurt people. The ordinarily intelligent and prudent member of the community [150] would foresee the possibility of danger from pointing a gun which he had not inspected into a crowd, and pulling the trigger, although it was said to be unloaded. Hence, it may very properly be held that a man who does such a thing does it at his peril, and that, if damage ensues, he is answerable for it. The co-ordinated acts necessary to point a gun and pull a trigger, and the intent and knowledge shown by the co-ordination of those acts, are all consistent with entire blamelessness. They threaten harm to no one without further facts. But the one additional circumstance of a man in the line and within range of the piece makes the conduct manifestly dangerous to any one who knows the fact. There is no longer any need to refer to the prudent man, or general experience. The facts have taught their lesson, and have generated a concrete and external rule of liability. He who snaps a cap upon a gun pointed in the direction of another person, known by him to be present, is answerable for the consequences. The question what a prudent man would do under given circumstances is then equivalent to the question what are the teachings of experience as to the dangerous character of this or that conduct under these or those circumstances; and as the teachings of experience are matters of fact, it is easy to see why the jury should be consulted with regard to them. They are, however, facts of a special and peculiar function. Their only bearing is on the question, what ought to have been done or omitted under the circumstances of the case, not on what was done. Their function is to suggest a rule of conduct. Sometimes courts are induced to lay down rules by facts of a more specific nature; as that the legislature passed a certain statute, and that the case at bar is within [151] the fair meaning of its words; or that the practice of a specially interested class, or of the public at large, has generated a rule of conduct outside the law which it is desirable that the courts should recognize and enforce. These are matters of fact, and have sometimes been pleaded as such. But as their only importance is, that, if believed, they will induce the judges to lay down a rule of conduct, or in other words a rule of law, suggested by them, their tendency in most instances is to disappear as fast as the rules suggested by them become settled. /1/ While the facts are uncertain, as they are still only motives for decision upon the law,--grounds for legislation, so to speak,--the judges may ascertain them in any way which satisfies their conscience. Thus, courts recognize the statutes of the jurisdiction judicially, although the laws of other jurisdictions, with doubtful wisdom, are left to the jury. /2/ They may take judicial cognizance of a custom of merchants. /3/ In former days, at least, they might inquire about it in pais after a demurrer. /4/ They may act on the statement of a special jury, as in the time of Lord Mansfield and his successors, or upon the finding of a common jury based on the testimony of witnesses, as is the practice to-day in this country. But many instances will be found the text-books which show that, when the facts are ascertained, they soon cease to be referred to, and give place to a rule of law. [152] The same transition is noticeable with regard to the teachings of experience. There are many cases, no doubt, in which the court would lean for aid upon a jury; but there are also many in which the teaching has been formulated in specific rules. These rules will be found to vary considerably with regard to the number of concomitant circumstances necessary to throw the peril of conduct otherwise indifferent on the actor. As the circumstances become more numerous and complex, the tendency to cut the knot with the jury becomes greater. It will be useful to follow a line of cases up from the simple to the more complicated, by way of illustration. The difficulty of distinguishing rules based on other grounds of policy from those which have been worked out in the field of negligence, will be particularly noticed. In all these cases it will be found that there has been a voluntary act on the part of the person to be charged. The reason for this requirement was shown in the foregoing Lecture. Unnecessary though it is for the defendant to have intended or foreseen the evil which he has caused, it is necessary that he should have chosen the conduct which led to it. But it has also been shown that a voluntary act is not enough, and that even a co-ordinated series of acts or conduct is often not enough by itself. But the co-ordination of a series of acts shows a further intent than is necessarily manifested by any single act, and sometimes proves with almost equal certainty the knowledge of one or more concomitant circumstances. And there are cases where conduct with only the intent and knowledge thus necessarily implied is sufficient to throw the risk of it on the actor. For instance, when a man does the series of acts called [153] walking, it is assumed for all purposes of responsibility that he knows the earth is under his feet. The conduct per se is indifferent, to be sure. A man may go through the motions of walking without legal peril, if he chooses to practise on a private treadmill; but if he goes through the same motions on the surface of the earth, it cannot be doubted that he knows that the earth is there. With that knowledge, he acts at his peril in certain respects. If he crosses his neighbor's boundary, he is a trespasser. The reasons for this strict rule have been partially discussed in the last Lecture. Possibly there is more of history or of past or present notions of policy its explanation than is there suggested, and at any rate I do not care to justify the rule. But it is intelligible. A man who walks knows that he is moving over the surface of the earth, he knows that he is surrounded by private estates which he has no right to enter, and he knows that his motion, unless properly guided, will carry him into those estates. He is thus warned, and the burden of his conduct is thrown upon himself. But the act of walking does not throw the peril of all possible consequences upon him. He may run a man down in the street, but he is not liable for that unless he does it negligently. Confused as the law is with cross-lights of tradition, and hard as we may find it to arrive at perfectly satisfactory general theory, it does distinguish in a pretty sensible way, according to the nature and degree of the different perils incident to a given situation. From the simple case of walking we may proceed to the more complex cases of dealings with tangible objects of property. It may be said that, generally speaking, a man meddles with such things at his own risk. It does not [154] matter how honestly he may believe that they belong to himself, or are free to the public, or that he has a license from the owner, or that the case is one in which the law has limited the rights of ownership; he takes the chance of how the fact may turn out, and if the fact is otherwise than as he supposes, he must answer for his conduct. As has been already suggested, he knows that he is exercising more or less dominion over property, or that he is injuring it; he must make good his right if it is challenged. Whether this strict rule is based on the common grounds of liability, or upon some special consideration of past or present policy, policy has set some limits to it, as was mentioned in the foregoing Lecture. Another case of conduct which is at the risk of the party without further knowledge than it necessarily imports, is the keeping of a tiger or bear, or other animal of a species commonly known to be ferocious. If such an animal escapes and does damage, the owner is liable simply on proof that he kept it. In this instance the comparative remoteness of the moment of choice in the line of causation from the effect complained of, will be particularly noticed. Ordinary cases of liability arise out of a choice which was the proximate cause of the harm upon which the action is founded. But here there is usually no question of negligence in guarding the beast. It is enough in most, if not in all cases, that the owner has chosen to keep it. Experience has shown that tigers and bears are alert to find means of escape, and that, if they escape, they are very certain to do harm of a serious nature. The possibility of a great danger has the same effect as the probability of a less one, and the law throws the risk of [155] the venture on the person who introduces the peril into the community. This remoteness of the opportunity of choice goes far to show that this risk is thrown upon the owner for other reasons than the ordinary one of imprudent conduct. It has been suggested that the liability stood upon remote inadvertence. /1/ But the law does not forbid a man to keep a menagerie, or deem it in any way blameworthy. It has applied nearly as strict a rule to dealings which are even more clearly beneficial to the community than a show of wild beasts. This seems to be one of those cases where the ground of liability is to be sought in policy coupled with tradition, rather than in any form of blameworthiness, or the existence of such a chance to avoid doing the harm as a man is usually allowed. But the fact that remote inadvertence has been suggested for an explanation illustrates what has been said about the difficulty of deciding whether a given rule is founded on special grounds, or has been worked out within the sphere of negligence, when once a special rule has been laid down. It is further to be noticed that there is no question of the defendant's knowledge of the nature of tigers, although without that knowledge he cannot be said to have intelligently chosen to subject the community to danger. Here again even in the domain of knowledge the law applies its principle of averages. The fact that tigers and bears are dangerous is so generally known, that a man who keeps them is presumed to know their peculiarities. In other words, he does actually know that he has an animal with certain teeth, claws, and so forth, and he must find out the [156] rest of what an average member of the community would know, at his peril. What is true as to damages in general done by ferocious wild beasts is true as to a particular class of damages done by domestic cattle, namely, trespasses upon another's land. This has been dealt with in former Lectures, and it is therefore needless to do more than to recall it here, and to call attention to the distinction based on experience and policy between damage which is and that which is not of a kind to be expected. Cattle generally stray and damage cultivated land when they get upon it. They only exceptionally hurt human beings. I need not recur to the possible historical connection of either of these last forms of liability with the noxoe deditio, because, whether that origin is made out or not, the policy of the rule has been accepted as sound, and carried further in England within the last few years by the doctrine that a man who brings upon his land and keeps there anything likely to do mischief if it escape, must keep it in at his peril. /1/ The strictness of this principle will vary in different jurisdictions, as the balance varies between the advantages to the public and the dangers to individuals from the conduct in question. Danger of harm to others is not the only thing to be considered, as has been said already. The law allows some harms to be intentionally inflicted, and a fortiori some risks to be intentionally run. In some Western States a man is not required to keep his cattle fenced in. Some courts have refused to follow Rylands v. Fletcher. /2/ On the other hand, the principle has been applied to artificial [157] reservoirs of water, to cesspools, to accumulations of snow and ice upon a building by reason of the form of its roof, and to party walls. /1/ In these cases, as in that of ferocious animals, it is no excuse that the defendant did not know, and could not have found out, the weak point from which the dangerous object escaped. The period of choice was further back, and, although he was not to blame, he was bound at his peril to know that the object was a continual threat to his neighbors, and that is enough to throw the risk of the business on him. I now pass to cases one degree more complex than those so far considered. In these there must be another concomitant circumstance known to the party in addition to those of which the knowledge is necessarily or practically proved by his conduct. The cases which naturally suggest themselves again concern animals. Experience as interpreted by the English law has shown that dogs, rams, and bulls are in general of a tame and mild nature, and that, if any one of them does by chance exhibit a tendency to bite, butt, or gore, it is an exceptional phenomenon. Hence it is not the law that a man keeps dogs, rams, bulls, and other like tame animals at his peril as to the personal damages which they may inflict, unless he knows or has notice that the particular animal kept by him has the abnormal tendency which they do sometimes show. The law has, however, been brought a little nearer to actual experience by statute in many jurisdictions. Now let us go one step farther still. A man keeps an unbroken and unruly horse, knowing it to be so. That is not enough to throw the risk of its behavior on him. The [158] tendency of the known wildness is not dangerous generally, but only under particular circumstances. Add to keeping, the attempt to break the horse; still no danger to the public is disclosed. But if the place where the owner tries to break it is a crowded thoroughfare, the owner knows an additional circumstance which, according to common experience, makes this conduct dangerous, and therefore must take the risk of what harm may be done. /1/ On the other hand, if a man who was a good rider bought a horse with no appearance of vice and mounted it to ride home, there would be no such apparent danger as to make him answerable if the horse became unruly and did damage. /2/ Experience has measured the probabilities and draws the line between the two cases. Whatever may be the true explanation of the rule applied to keeping tigers, or the principle of Rylands v. Fletcher, in the last cases we have entered the sphere of negligence, and, if we take a case lying somewhere between the two just stated, and add somewhat to the complexity of the circumstances, we shall find that both conduct and standard would probably be left without much discrimination to the jury, on the broad issue whether the defendant had acted as a prudent man would have done under the circumstances. As to wrongs called malicious or intentional it is not necessary to mention the different classes a second time, and to find them a place in this series. As has been seen, they vary in the number of circumstances which must be known. Slander is conduct which is very generally at the risk of [159] the speaker, because, as charges of the kind with which it deals are manifestly detrimental, the questions which practically arise for the most part concern the defence of truth or privilege. Deceit requires more, but still simple facts. Statements do not threaten the harm in question unless they are made under such circumstances as to naturally lead to action, and are made on insufficient grounds. It is not, however, without significance, that certain wrongs are described in language importing intent. The harm in such cases is most frequently done intentionally, if intent to cause a certain harm is shown, there need to prove knowledge of facts which made it that harm would follow. Moreover, it is often much easier to prove intent directly, than to prove the knowledge which would make it unnecessary. The cases in which a man is treated as the responsible cause of a given harm, on the one hand, extend beyond those in which his conduct was chosen in actual contemplation of that result, and in which, therefore, he may be to have chosen to cause that harm; and, on the other hand, they do not extend to all instances where the damages would not have happened but for some remote election his part. Generally speaking, the choice will be found to have extended further than a simple act, and to co-ordinated acts into conduct. Very commonly it will have extended further still, to some external consequence. But generally, also, it will be found to have stopped short of the consequence complained of. The question in each case is whether the actual choice, or, in other words, the actually contemplated result, was near enough to the remoter result complained of to throw the peril of it upon the actor. [160] Many of the cases which have been put thus far are cases where the proximate cause of the loss was intended to be produced by the defendant. But it will be seen that the same result may be caused by a choice at different points. For instance, a man is sued for having caused his neighbor's house to burn down. The simplest case is, that he actually intended to burn it down. If so, the length of the chain of physical causes intervening is of no importance, and has no bearing on the case. But the choice may have stopped one step farther back. The defendant may have intended to light a fire on his own land, and may not have intended to burn the house. Then the nature of the intervening and concomitant physical causes becomes of the highest importance. The question will be the degree of danger attending the contemplated (and therefore chosen) effect of the defendant's conduct under the circumstances known to him. If this was very plain and very great, as, for instance, if his conduct consisted in lighting stubble near a haystack close to the house, and if the manifest circumstances were that the house was of wood, the stubble very dry, and the wind in a dangerous quarter, the court would probably rule that he was liable. If the defendant lighted an ordinary fire in a fireplace in an adjoining house, having no knowledge that the fireplace was unsafely constructed, the court would probably rule that he was not liable. Midway, complicated and doubtful cases would go to the jury. But the defendant may not even have intended to set the fire, and his conduct and intent may have been simply to fire a gun, or, remoter still, to walk across a room, in doing which he involuntarily upset a bottle of acid. So that cases may go to the jury by reason of the remoteness [161] of the choice in the series of events, as well as because of the complexity of the circumstances attending the act or conduct. The difference is, perhaps, rather dramatic than substantial. But the philosophical analysis of every wrong begins by determining what the defendant has actually chosen, that is to say, what his voluntary act or conduct has been, and what consequences he has actually contemplated as flowing from them, and then goes on to determine what dangers attended either the conduct under the known circumstances, or its contemplated consequence under the contemplated circumstances. Take a case like the glancing of Sir Walter Tyrrel's arrow. If an expert marksman contemplated that the arrow would hit a certain person, cadit qucoestio. If he contemplated that it would glance in the direction of another person, but contemplated no more than that, in order to judge of his liability we must go to the end of his fore-sight, and, assuming the foreseen event to happen, consider what the manifest danger was then. But if no such event was foreseen, the marksman must be judged by the circumstances known to him at the time of shooting. The theory of torts may be summed up very simply. At the two extremes of the law are rules determined by policy without reference of any kind to morality. Certain harms a man may inflict even wickedly; for certain others he must answer, although his conduct has been prudent and beneficial to the community. But in the main the law started from those intentional wrongs which are the simplest and most pronounced cases, as well as the nearest to the feeling of revenge which leads to self-redress. It thus naturally adopted the vocabulary, [162] and in some degree the tests, of morals. But as the law has grown, even when its standards have continued to model themselves upon those of morality, they have necessarily become external, because they have considered, not the actual condition of the particular defendant, but whether his conduct would have been wrong in the fair average member of the community, whom he is expected to equal at his peril. In general, this question will be determined by considering the degree of danger attending the act or conduct under the known circumstances. If there is danger that harm to another will follow, the act is generally wrong in the sense of the law. But in some cases the defendant's conduct may not have been morally wrong, and yet he may have chosen to inflict the harm, as where he has acted in fear of his life. In such cases he will be liable, or not, according as the law makes moral blameworthiness, within the limits explained above, the ground of liability, or deems it sufficient if the defendant has had reasonable warning of danger before acting. This distinction, however, is generally unimportant, and the known tendency of the act under the known circumstances to do harm may be accepted as the general test of conduct. The tendency of a given act to cause harm under given circumstances must be determined by experience. And experience either at first hand or through the voice of the jury is continually working out concrete rules, which in form are still more external and still more remote from a reference to the moral condition of the defendant, than even the test of the prudent man which makes the first stage of the division between law and morals. It does this in the domain [163] of wrongs described as intentional, as systematically as in those styled unintentional or negligent. But while the law is thus continually adding to its specific rules, it does not adopt the coarse and impolitic principle that a man acts always at his peril. On the contrary, its concrete rules, as well as the general questions addressed to the jury, show that the defendant must have had at least a fair chance of avoiding the infliction of harm before he becomes answerable for such a consequence of his conduct. And it is certainly arguable that even a fair chance to avoid bringing harm to pass is not sufficient to throw upon a person the peril of his conduct, unless, judged by average standards, he is also to blame for what he does. [164] LECTURE V. -- THE BAILEE AT COMMON LAW. So far the discussion has been confined to the general principles of liability, and to the mode of ascertaining the point at which a man begins to act at his own peril. But it does not matter to a man whether he acts at his own peril or not, unless harm comes of it, and there must always be some one within reach of the consequences of the act before any harm can be done. Furthermore, and more to the point, there are certain forms of harm which are not likely to be suffered, and which can never be complained of by any one except a person who stands in a particular relation to the actor or to some other person or thing. Thus it is neither a harm nor a wrong to take fish from a pond unless the pond is possessed or owned by some one, and then only to the possessor or owner. It is neither a harm nor a wrong to abstain from delivering a bale of wool at a certain time and place, unless a binding promise has been made so to deliver it, and then it is a wrong only to the promisee. The next thing to be done is to analyze those special relations out of which special rights and duties arise. The chief of them--and I mean by the word "relations" relations of fact simply--are possession and contract, and I shall take up those subjects successively. The test of the theory of possession which prevails in any system of law is to be found in its mode of dealing [165] who have a thing within their power, but not own it, or assert the position of an owner for with regard to it, bailees, in a word. It is therefore, as a preliminary to understanding the common-law theory of possession, to study the common law with regard to bailees. The state of things which prevailed on the border between England and Scotland within recent times, and which is brought back in the flesh by the ballad of the Fray O'Suport, is very like that which in an earlier century left its skeleton in the folk-laws of Germany and England. Cattle were the principal property known, and cattle-stealing the principal form of wrongful taking of property. Of law there was very little, and what there was depended almost wholly upon the party himself to enforce. The Salic Law of the fifth century and the Anglo-Saxon laws of Alfred are very full in their directions about following the trail. If the cattle were come up with before three days were gone, the pursuer had the fight to take and keep them, subject only to swearing that he lost them against his will. If more than three days went by before the cattle were found, the defendant might swear, if he could, to facts which would disprove the claimant's loss. This procedure was in truth a legal procedure; but it depended for its beginning and for its execution on the party making the claim. From its "executive" nature, it could hardly have been started by any other than the person on the spot, in whose keeping the cattle were. The oath was to the effect that the party had lost possession against his will. But if all that a man had to swear was that he had lost possession against his will, it is a natural conclusion that the right to take the oath and make use of [166] the procedure depended on possession, and not on ownership. Possession was not merely sufficient, but it was essential. Only he who was in possession could say that he had lost the property against his will, just as only he who was on the spot could follow the cattle. /1/ This, so far as known, was the one means afforded by the early law of our race for the recovery of property lost against one's will. So that, in a word, this procedure, modelled on the self-redress natural to the case which gave rise to it, was the only remedy, was confined to the man in possession, and was not open to the owner unless he was that man. To this primitive condition of society has been traced a rule which maintained itself to later times and a more civilized procedure, that, if chattels were intrusted by their owner to another person, the bailee, and not the bailor, was the proper party to sue for their wrongful appropriation by a third. It followed that if the bailee, or person [167] so intrusted, sold or gave the goods in his charge to another, the owner could only look to the bailee, and could not sue the stranger; not from any principle in favor of trade, intended to protect those who bought in good faith from parties in possession, but because there was no form of action known which was open to him. But as the remedies were all in the bailee's hands, it also followed that he was bound to hold his bailor harmless. If the goods were lost, it was no excuse that they were stolen without his fault. He alone could recover the lost property, and therefore he was bound to do so. In the course of time this reason ceased to exist. An owner out of possession could sue the wrongful taker of his property, as well as one who had possession. But the strict liability of the bailee remained, as such rules do remain in the law, long after the causes which gave rise to it had disappeared, and at length we find cause and effect inverted. We read in Beaumanoir (A.D. 1283) that, if a hired thing is stolen, the suit belongs to the bailee, because he is answerable to the person from whom he hired. /1/ At first the bailee was answerable to the owner, because he was the only person who could sue. Now it was said he could sue because he was answerable to the owner. All the above peculiarities reappear in the Anglo-Norman law, and from that day to this all kinds of bailees have been treated as having possession in a legal sense, as I shall presently show. It is desirable to prove the native origin of our law of bailment, in order that, when theory comes to be considered, modern German opinion may not be valued at more than its true worth. The only existing theories on [168] the subject come from Germany. The German philosophers who have written upon law have known no other system than the Roman, and the German lawyers who have philosophized have been professors of Roman law. Some rules which we think clear are against what the German civilians would regard as first principles. To test the value of those principles, or at least to prevent the hasty assumption that they are universal, toward which there is a slight tendency among English writers, it is well to realize that we are dealing with a new system, of which philosophy has not yet taken account. In the first place, we find an action to recover stolen property, which, like the Salic procedure, was based on possession, not on title. Bracton says that one may sue for his chattel as stolen, by the testimony of good men, and that it does not matter whether the thing thus taken was his own property or another's, provided it was in his custody. /1/ The point of especial importance, it will be remembered, was the oath. The oath of the probi homines would seem from the letter of Bracton to have been that the thing was lost (adirata), and this we are expressly told was the fact in a report of the year 1294. "Note that where a man's chattel is lost (ou la chosse de un home est endire), he may count that he [the finder] tortiously detains it, &c., and tortiously for this that whereas he lost the said thing on such a day, &c., he [the loser] came on such a day, &c. [169] (la vynt yl e en jour), and found it in the house of such an one, and told him, &c., and prayed him to restore the Sing, but that he would not restore it, &c., to his damage, &c.; and if he, &c. In this case, the demandant must prove (his own hand the twelfth) that he lost the thing." /1/ Assuming that as the first step we find a procedure kindred to that of the early German folk-laws, the more important question is whether we find any principles similar to those which have just been explained. One of these, it will be remembered, concerned wrongful transfer by the bailee. We find it laid down in the Year Books that, if I deliver goods to a bailee to keep for me, and he sells or gives them to a stranger, the property is vested in the stranger by the gift, and I cannot maintain trespass against him; but that I have a good remedy against the bailee by writ of detinue (for his failure to return the goods). /2/ These cases have been understood, and it would seem on the whole rightly, not merely to deny trespass to the bailor, but any action whatever. Modern writers have added, however, the characteristically modern qualification, that the purchase must be bona fide, and without notice. /3/ It may be answered, that the proposition extends to gifts as well as to sales by the bailee, that there is no such condition in the old books, and that it is contrary to the spirit of the strict doctrines of the common law to read it in. No lawyer needs to be told that, even so qualified, this is no [170] longer the law. /1/ The doctrine of the Year Books must be regarded as a survival from the primitive times when we have seen the same rule in force, unless we are prepared to believe that in the fifteenth century they had a nicer feeling for the rights of bona fide purchasers than at present. The next point in logical order would be the degree of responsibility to which the bailee was held as towards his bailor who intrusted him. But for convenience I will consider first the explanation which was given of the bailee's right of action against third persons wrongfully taking the goods from his possession. The inverted explanation of Beaumanoir will be remembered, that the bailee could sue because he was answerable over, in place of the original rule, that he was answerable over so strictly because only he could sue. We find the same reasoning often repeated in the Year Books, and, indeed, from that day to this it has always been one of the commonplaces of the law. Thus Hankford, then a judge of the Common Bench, says (circa A.D. 1410), /2/ "If a stranger takes beasts in my custody, I shall have a writ of trespass against him, and shall recover the value of the beasts, because I am chargeable for the beasts to my bailor, who has the property." There are cases in which this reasoning was pushed to the conclusion, that if, by the terms of the trust, the bailee was not answerable for the goods if stolen, he would not have an action against the thief. /3/ The same explanation is repeated to this day. Thus we read in a well- known textbook, [171] "For the bailee being responsible to the bailor, if the goods be lost or damaged by negligence, or if he do not deliver them up on lawful demand, it is therefore reasonable that he should have a right of action," &c. /1/ In general, nowadays, a borrower or hirer of property is not answerable if it is taken from him against his will, and if the reason offered were a true one, it would follow that, as he was not answerable over, he could not sue the wrong-doer. It would only be necessary for the wrong-doer to commit a wrong so gross as to free the bailee from responsibility, in order to deprive him of his right of action. The truth is, that any person in possession, whether intrusted and answerable over or not, a finder of property as well as a bailee, can sue any one except the true owner for interfering with his possession, as will be shown more particularly at the end of the next Lecture. The bailor also obtained a right of action against the wrong-doer at a pretty early date. It is laid down by counsel in 48 Edward III., /2/ in an action of trespass by an agister of cattle, that, "in this case, he who has the property may have a writ of trespass, and he who has the custody another writ of trespass. Persay: Sir, it is true. But [172] he who recovers first shall oust the other of the action, and so it shall be in many cases, as if tenant by elegit is ousted, each shall have the assize, and, if the one recover first, the writ of the other is abated, and so here." It would seem from other books that this was spoken of bailments generally, and was not limited to those which are terminable at the pleasure of the bailor. Thus in 22 Edward IV., counsel say, "If I bail to you my goods, and another takes them out of your possession, I shall have good action of trespass quare vi et armis." /1/ And this seems to have been Rolle's understanding in the passage usually relied on by modern courts. /2/ It was to be expected that some action should be given to the bailor as soon as the law had got machinery which could be worked without help from the fresh pursuit and armed hands of the possessor and his friends. To allow the bailor to sue, and to give him trespass, were pretty nearly the same thing before the action on the case was heard of. Many early writs will be found which show that trespass had not always the clear outline which it developed later. The point which seems to be insisted on in the Year Books is, as Brooke sums it up in the margin of his Abridgment, that two shall have an action for a single act,--not that both shall have trespass rather than case. /3/ It should be added that the Year Books quoted do not go beyond the case of a wrongful taking out of the custody of the bailee, the old case of the folk-laws. /4/ Even thus [173] the right to maintain trespass is now denied where bailee has the exclusive right to the goods by lease or lien; /1/ although the doctrine has been repeated with reference to bailments terminable at the pleasure of the bailor. /2/ But the modified rule does not concern the present discussion, any more than the earlier form, because it still leaves open the possessory remedies to all bailees without exception. This appears from the relation of the modified rule to the ancient law; from the fact that Baron Parke, in the just cited case of Manders v. Williams, hints that he would have been prepared to apply the old rule to its full extent but for Gordon v. Harper, and still more obviously from the fact, that the bailee's right to trespass and trover is asserted in the same breath with that of the bailor, as well as proved by express decisions to be cited. It is true that in Lotan v. Cross, /3/ Lord Ellenborough ruled at nisi prius that a lender could maintain trespass for damage done to a chattel in the hands of a borrower, and that the case is often cited as authority without remark. Indeed, it is sometimes laid down generally, in reputable text-books, that a gratuitous bailment does not change the possession, but leaves it in the bailor; /4/ that a gratuitous bailee is quasi a servant of the bailor, and the possession of one is the possession of the other; and that it is for this reason that, although the bailee may sue on [174] his possession, the bailor has the same actions. /1/ A part of this confusion has already been explained, and the rest will be when I come to speak of servants, between whom and all bailees there is a broad and well-known distinction. But on whatever ground Lotan v. Cross may stand, if on any, it cannot for a moment be admitted that borrowers in general have not trespass and trover. A gratuitous deposit for the sole benefit of the depositor is a much stronger case for the denial of these remedies to the depositary; yet we have a decision by the full court, in which Lord Ellenborough also took part, that a depositary has case, the reasoning implying that a fortiori a borrower would have trespass. And this has always been the law. /2/ It has been seen that a similar doctrine necessarily resulted from the nature of the early German procedure; and the cases cited in the note show that, in this as in other respects, the English followed the traditions of their race. The meaning of the rule that all bailees have the possessory remedies is, that in the theory of the common law every bailee has a true possession, and that a bailee recovers on the strength of his possession, just as a finder does, and as even a wrongful possessor may have full damages or a return of the specific thing from a stranger to the title. On the other hand, so far as the possessory actions are still allowed to bailors, it is not on the ground that they also have possession, but is probably by a survival, which [175] explained, and which in the modern form of the an anomaly. /1/ The reason usually given is, that a right of immediate possession is sufficient,--a reason which the notion that the bailor is actually possessed. The point which is essential to understanding the common-law theory of possession is now established: that all bailees from time immemorial have been regarded by the English law as possessors, and entitled to the possessory remedies. It is not strictly necessary to go on and complete the proof that our law of bailment is of pure German descent. But, apart from curiosity, the doctrine remaining to be discussed has had such important influence upon the law of the present day, that I shall follow it out with some care. That doctrine was the absolute responsibility of the bailee to the bailor, if the goods were wrongfully taken from him. /2/ The early text-writers are not as instructive as might be hoped, owing to the influence of the Roman law. Glanvil, however, says in terms that, if a borrowed thing be destroyed or lost in any way while in the borrower's custody, he is absolutely bound to return a reasonable price. /3/ So does Bracton, who partially repeats but modifies the language of Justinian as to commodatum, depositum, and pignus; /4/ and as to the duty of the hirer to use the care of a diligentissimus paterfamilias. /5/ [176] The language and decisions of the courts are perfectly clear; and there we find the German tradition kept alive for several centuries. I begin with the time of Edward II., about 1315. In detinue the plea was that the plaintiff delivered the defendant a chest locked with his key, that the chattels were in the chest, and that they were taken from the defendant together with his own goods by robbery. The replication was that the goods were delivered to the defendant out of enclosure, and Fitzherbert says the party was driven to that issue; /1/ which implies that, if not in the chest, but in the defendant's custody, he was liable. Lord Holt, in Coggs v. Bernard, /2/ denies that the chest would make any difference; but the old books agree that there is no delivery if the goods are under lock and key; and this is the origin of the distinction as to carriers breaking bulk in modern criminal law. /3/ In the reign of Edward III., /4/ the case of a pledge came up, which seems always to have been regarded as a special bailment to keep as one's own goods. The defence was, that the goods were stolen with the defendant's own. The plaintiff was driven to reply a tender before the theft, which would have put an end to the pledge, and left the defendant a general bailee. /5/ Issue was taken thereon, which confirms the other cases, by implying that in that event the defendant would be liable. Next I take a case of the time of Henry VI., A.D. 1455. /6/ [177] was an action of debt against the Marshal of the Marshalsea, or jailer of the King's Bench prison, for an escape of a prisoner. Jailers in charge of prisoners were governed by the same law as bailees in charge of cattle. The body of the prisoner was delivered to the jailer to keep under the same liabilities that cows or goods might have been. /1/ He set up in defence that enemies of the king broke into the prison and carried off the prisoner, against the will of the defendant. The question was whether this was a good defence. The court said that, if alien enemies of the king, for instance the French, released the prisoner, or perhaps if the burning of the prison gave him a chance to escape, the excuse would be good, "because then [the defendant] has remedy against no one." But if subjects of the king broke the prison, the defendant would be liable, for they are not enemies, but traitors, and then, it is implied, the defendant would have a right of action against them, and therefore would himself be answerable. In this case the court got very near to the original ground of liability, and distinguished accordingly. The person intrusted was liable in those cases where he had a remedy over against the wrong-doer (and in which, originally, he was the only person who had such a remedy); and, on the other hand, his liability, being founded on that circumstance, ceased where the remedy ceased. The jailer could not sue the soldiers of an invading army of Frenchmen; but in theory he could sue any British subject who carried off the prisoner, however little it was likely that he would get much satisfaction in that way. A few years later the law is stated the same way by the famous Littleton. He says that, if goods are delivered to [178] a man, he shall have an action of trespass if they are carried off, for he is chargeable over. /1/ That is, he is bound to make the loss good to the party who intrusted him. In 9 Edward IV., /2/ Danby says if a bailee received goods to keep as his proper goods, then robbery shall excuse him, otherwise not. Again, in a later case /3/ robbery is said not to be an excuse. There may have been some hesitation as to robbery when the robber was unknown, and so the bailee had no remedy over, /4/ or even as to robbery generally, on the ground that by reason of the felony the bailee could not go against either the robber's body or his estate; for the one was hanged and the other forfeited. /5/ But there is not a shadow of doubt that the bailee was not excused by an ordinary wrongful taking. "If the goods are taken by a trespasser, of whom the bailee has conusance, he shall be chargeable to his bailor, and shall have his action over against his trespasser." /6/ The same point was touched in other passages of the Year Books, /7/ and the rule of law is clearly implied by the reason which was given for the bailee's right to sue in the cases cited above. The principle was directly decided in accordance with the ancient law in the famous case of Southcote v. Bennet. /8/ This was detinue of goods delivered to the defendant to [179] keep safely. The defendant confessed the delivery, and set up he was robbed of the goods by J.S. "And, after argument at the bar, Gawdy and Clench, ceteris absentibus, held that the plaintiff ought to recover, because it was not a special bailment; that the defendant accepted them to keep as his proper goods, and not otherwise; but it is a delivery, which chargeth him to keep them at his peril. And it is not any plea in a detinue to say that he was robbed by one such; for he hath his remedy over by trespass, or appeal, to have them again." The above from Croke's report implies, what Lord Coke expressly says, that "to be kept, and to be kept safe, is all one," and both reports agree that the obligation was founded on the delivery alone. Croke's report confirms the caution which Lord Coke adds to his report: "Note, reader, it is good policy for him who takes any goods to keep, to take them in special manner, scil. to keep them as he keeps his own goods,... or if they happen to be stolen or purloined, that he shall not be answerable for them; for he who accepted them ought to take them in such or the like manner, or otherwise he may be charged by his general acceptance." Down to this time, at least, it was clear law that, if a person accepted the possession of goods to keep for another even as a favor, and lost them by wrongful taking, wholly without his fault, he was bound to make good the loss, unless when he took possession he expressly stipulated against such a responsibility. The attempts of Lord Holt in Coggs v. Bernard, and of Sir William Jones in his book on Bailments, to show that Southcote v. Bennet was not sustained by authority, were futile, as any one who will Study the Year Books for himself may see. The same principle was laid down seven years before by Peryam, [180] C. B., in Drake v. Royman, /1/ and Southcote's Case was followed as a leading precedent without question for a hundred years. Thus the circle of analogies between the English and the early German law is complete. There is the same procedure for lost property, turning on the single question whether the plaintiff had lost possession against his will; the same principle that, if the person intrusted with the property parted with it to another, the owner could not recover it, but must get his indemnity from his bailee; the same inverted explanation, that the bailee could sue because he was answerable over, but the substance of the true doctrine in the rule that when he had no remedy he was not answerable; and, finally, the same absolute responsibility for loss, even when happening without fault on the part of the person intrusted. The last and most important of these principles is seen in force as late as the reign of Queen Elizabeth. We have now to follow its later fortunes. A common carrier is liable for goods which are stolen from him, or otherwise lost from his charge except by the act of God or the public enemy. Two notions have been entertained with regard to the source of this rule: one, that it was borrowed from the Roman law; /2/ the other, that it was introduced by custom, as an exception to the general law of bailment, in the reigns of Elizabeth and James I. /3/ I shall try to show that both these notions are wrong, that this strict responsibility is a fragmentary survival from the general law of bailment which I have just explained; [181] the modifications which the old law has undergone were due in part to a confusion of ideas which came the displacement of detinue by the action on the case, in part to conceptions of public policy which were read into the precedents by Lord Holt, and in part to still later conceptions of policy which have been read into the reasonings of Lord Holt by later judges. Southcote's Case was decided in the forty-third year of Queen Elizabeth (A.D. 1601). I think the first mention of a carrier, pertinent to the question, occurs in Woodlife's Case, /1/ decided four or five years earlier (38 or 39 Eliz., A.D. 1596 or 1597). It was an action of account for merchandise delivered to the defendant, it would seem as a factor ("pur merchandizer")--clearly not as a carrier. Plea, robbery at sea with defendant's own goods. Gawdy, one of the judges who decided Southcote's Case, thought the plea bad; but Popham, C. J. said that, though it would not be a good plea for a carrier because he is paid for his carriage, there was a difference in this respect between carriers and other servants and factors. This is repeated in Southcote's Case, and appears to involve a double distinction,--first between paid and unpaid bailees, next between bailees and servants. If the defendant was a servant not having control over the goods, he might not fall within the law of bailment, and factors are treated on the footing of servants in the early law. The other diversity marked the entrance of the doctrine of consideration into the law of bailment. Consideration originally meant quid pro quo, as will be explained hereafter. It was thus dealt with in Doctor and Student /2/ when the principle was still young. Chief Justice [183] Popham probably borrowed his distinction between paid and unpaid bailees from that work, where common carriers are mentioned as an example of the former class. A little earlier, reward made no difference. /1/ But in Woodlife's Case, in reply to what the Chief Justice had said, Gawdy cited the case of the Marshal of the King's Bench, /2/ stated above, whereupon Popham fell back on the old distinction that the jailer had a remedy over against the rebels, but that there was no remedy over in the case at bar. The other cases relied on were some of those on general bailment collected above; the same authorities, in short, on which Southcote's Case was founded. The principle adopted was the same as in Southcote's Case, subject only to the question whether the defendant fell within it. Nothing was said of any custom of the realm, or ever had been in any reported case before this time; and I believe this to be the first instance in which carriers are in any way distinguished from any other class of persons intrusted with goods. There is no hint of any special obligation peculiar to them in the old books; and it certainly is not true, that this case introduced one. It will be noticed, with reference to what follows, that Popham does not speak of common carriers, but of carriers. Next came Southcote's Case /3/ (43 Eliz., A.D. 1601), which presented the old law pure and simple, irrespective of reward or any modern innovation. In this and the earlier instances of loss by theft, the action was detinue, counting, we may presume, simply on a delivery and wrongful detainer. [183] But about this time important changes took place in the procedure usually adopted, which must be explained. If the chattel could be returned in specie, detinue afforded no satisfaction for damage which it might have suffered through the bailee's neglect. /1/ The natural remedy for such damage was the action on the case. But before this could be made entirely satisfactory, there were certain difficulties to be overcome. The neglect which occasioned the damage might be a mere omission, and what was there akin to trespass in a nonfeasance to sustain the analogy upon which trespass on the case was founded? Moreover, to charge a man for not acting, you must show that it was his duty to act. As pleadings were formerly construed, it would not have been enough to allege that the plaintiff's goods were damaged by the defendant's negligence. /2/ These troubles had been got over by the well-known words, super se assumpsit, which will be explained later. Assumpsit did not for a long time become an independent action of contract, and the allegation was simply the inducement to an action of tort. The ground of liability was that the defendant had started upon the undertaking, so that his negligent omission, which let in the damage, could be connected with his acts as a part of his dealing with the thing. /3/ We shall find Lord Holt recognizing this original purport of assumpsit when we come to Coggs v. Bernard. Of course it was not confined to cases of bailment. But there was another way besides this by which the defendant could be charged with a duty and made liable [184] in case, and which, although less familiar to lawyers, has a special bearing on the law of carriers in later times. If damage had been done or occasioned by the act or omission of the defendant in the pursuit of some of the more common callings, such as that of a farrier, it seems that the action could be maintained, without laying an assumpsit, on the allegation that he was a "common" farrier. /1/ The latter principle was also wholly independent of bailment. It expressed the general obligation of those exercising a public or "common" business to practise their art on demand, and show skill in it. "For," as Fitzherbert says, "it is the duty of every artificer to exercise his art rightly and truly as he ought." /2/ When it had thus been established that case would lie for damage when occasioned by the omission, as well as when caused by the act, of the defendant, there was no reason for denying it, even if the negligent custody had resulted in the destruction of the property. /3/ From this it was but a step to extend the same form of action to all cases of loss by a bailee, and so avoid the defendant's right to wage his law. Detinue, the primitive remedy, retained that mark of primitive procedure. The last extension was made about the time of Southcote's Case. /4/ But when the [185] same form of action thus came to be used alike for damage or destruction by the bailee's neglect and for loss by a wrong-doer against whom the bailee had a remedy over, a source was opened for confusion with regard to the foundation and nature of the defendant's duty. In truth, there were two sets of duties,--one not peculiar to bailees, arising from the assumpsit or public calling of the defendant, as just explained; the other, the ancient obligation, peculiar to them as such, of which Southcote's Case was an example. But any obligation of a bailee might be conceived of as part of a contract of bailment, after assumpsit had become appropriated to contract, the doctrine of consideration had been developed, (both of which had happened in Lord Coke's time,) it seemed unnecessary to distinguish nicely between the two sets of duties just mentioned, provided a consideration and special promise could be alleged. Furthermore, as formerly the defendant's public calling had the same effect as an assumpsit for the purpose of charging him in tort, it seems now to have been thought an equally good substitute for a special promise, in order to charge him in assumpsit. In Rogers v. Head, /1/ the argument was, that to charge one in assumpsit you must show either his public calling at the time of the delivery, or a special promise on sufficient consideration. This argument assumes that a bailee who received goods in the course of a public employment, [186] for instance as a common carrier, could be charged in this form of action for a breach of either of the above sets of duties, by alleging either his public calling or his reward and a special promise. It seems to have been admitted, as was repeatedly decided before and since that case, that one who was not a common carrier could have been charged for non-delivery in a special action; that is, in case as distinguished from assumpsit. Suppose, next, that the plaintiff sued in case for a tort. As before, the breach of duty complained of might be such damage to property as had always been sued for in that form of action, or it might be a loss by theft for which detinue would formerly have been brought, and which fell on the bailee only by reason of the bailment. If the goods had been stolen, the bailee's liability rested neither on his common calling nor on his assumpsit and his neglect, but arose from the naked facts that he had accepted a delivery and that the goods were gone, and in such cases it ought to have been enough to allege those facts in the declaration. /1/ But it was very natural that the time-honored foundations for the action on the case in its more limited application should still be laid in the pleadings, even after the scope of the action had been enlarged. We shall have to inquire, later, whether the principles of Southcote's Case were not also extended in the opposite direction to cases not falling within it. The reasons for the rule which it laid down had lost their meaning centuries before Gawdy and Clench were born, when owners had acquired the right to sue for the wrongful taking of property in the hands [187] and the rule itself was a dry precedent likely to be followed according to the letter because the spirit had departed. It had begun to totter when the reporter cautioned bailees to accept in such terms as to get rid of it. /1/ Accordingly, although that decision was the main authority relied on for the hundred years between it and Coggs v. Bernard whenever a peculiar responsibility was imposed upon bailees, we find that sometimes an assumpsit was laid as in the early precedents, /2/ or more frequently that the bailee was alleged to be a common bargeman, or common carrier, or the like, without much reference to the special nature of the tort in question; and that the true bearing of the allegation was sometimes lost sight of. At first, however, there were only some slight signs of confusion in the language of one or two cases, and if the duty was conceived to fall within the principle of Southcote's Case, pleaders did not always allege the common or public calling which was held unnecessary. /3/ But they also adopted other devices from the precedents in case, or to strengthen an obligation which they did not well understand. Chief Justice Popham had sanctioned a distinction between paid and unpaid bailees, hence it was deemed prudent to lay a reward. Negligence was of course averred; and finally it became frequent to allege an obligation by the law and custom of the realm. This last deserves a little further attention. There is no writ in the Register alleging any special obligation of common carriers by the custom of the realm. But the writ against innkeepers did lay a duly "by the [188] law and custom of England," and it was easy to adopt the phrase. The allegation did not so much imply the existence of a special principle, as state a proposition of law in the form which was then usual. There are other writs of trespass which allege a common-law duty in the same way, and others again setting forth a statutory obligation. /1/ So "the judges were sworn to execute justice according to law and the custom of England." /2/ The duties of a common carrier, so far as the earlier evidence goes, were simply those of bailees in general, coupled with the liabilities generally attached to the exercise of a public calling. The word "common" addressed itself only to the latter point, as has been shown above. This is further illustrated by the fact that, when the duty was thus set forth, it was not alleged as an obligation peculiar to common carriers as such, but was laid as the custom of law of common hoymen, or lightermen, &c., according to the business of the party concerned. It will be noticed that Chief Justice Holt in Coggs v. Bernard states the liability as applicable to all bailees for reward, exercising a public employment, and mentions common hoymen and masters of ships alongside of, not as embraced under, common carriers. It will also be noticed in the cases before that time, that there is no settled formula for the obligation in question, but that it is set forth in each case that the defendant was answerable for what he was said to have done or omitted in the particular instance. /3/ [189] Returning now to the succession of the cases, Rich v. Kneeland is the next in order (11 Jac. I., A.D. 1613). It was an action on the case (tort), against a common hoyman. In Croke's report nothing is said of custom; but the declaration avers that the defendant was a common bargeman, that the plaintiff delivered him a portmanteau, &c. to carry, and paid him for it, and that the defendant tam negligenter custodivit, that it was taken from him by persons unknown,--like the second count in Morse v. Slue, below. The plea was demurred to, and adjudged for the plaintiff. A writ of error being brought, it was assigned that "this action lies not against a common bargeman without special promise. But all the Justices and Barons held, that it well lies as against a common carrier upon the land." If we follow this report, it seems at the first glance that importance was attributed to the common calling. But as the loss was clearly within the principle of Southcote's Case, which required neither special promise nor common calling for its application, and which remained unquestioned law for three quarters of a century later, the court must have referred to the form of action employed (case), and not to the liability of the defendant in some form of action (detinue). The objection was that "this action lies not," not that the defendant not liable, "without special promise." Even thus narrowed, it rather countenances the notion that allegations which were necessary to charge a man for damage happening through his neglect, in the more ancient and use of this action, were also necessary in this new [190] extension of it to a different class of wrongs. As it was now pretty clear that case would lie for a nonfeasance, the notion was mistaken, and we shall see that it was denied in subsequent decisions. /1/ According to Hobart's report, it was alleged that the defendant was a common hoyman, to carry goods by water, for hire, &c., that by the custom of England such carriers ought to keep the goods, &c., so as they should not be lost by the default of them or their servants, &c. "And it was resolved that, though it was laid as a custom of the realm, yet indeed it is common law." This last resolution may only mean that the custom of the realm and the common law are the same thing, as had been said concerning innkeepers long before. /2/ But the law as to innkeepers, which was called the custom of the realm in the writ, had somewhat the air of a special principle extending beyond the law of bailment, inasmuch as their liability extended to goods within the inn, of which they had not the custody, and the court may have meant to make an antithesis between such a special principle and the common law or general law of bailment governing the present case. Whatever doubts some of Croke's language might raise, standing alone, the fact remains indisputable, that for nearly a century from Woodlife's Case the liability of carriers for loss of goods, whether the custom of the realm or the defendant's common calling was alleged or not, was placed upon the authority and was intended to be decided on the principle of Southcote's Case. [191] Symons v. Darknell 1 (4 Car. I., A.D. 1628) is precisely in point. The declaration was, that, by the common law, every lighterman ought so to manage his lighter that the goods carried therein should not perish. "And although no promise laid, it seemed to the court that the plaintiff should recover; and not alleging that defendant was common lighterman was no harm. Hyde, C. J., delivery makes the contract." This did not mean that delivery was a good consideration for a promise; but, as was laid down in Southcote's Case, that delivery, without a special acceptance to keep only as one's own goods, bound the bailee to keep safely, and therefore made it unnecessary to allege either an assumpsit or the defendant's common calling. Whitlock, J. called attention to the fact that the action was tort, not contract. "Et en cest case... Southcote's Case fuit cite." The same rule is stated as to bailments in general, the same year, by Sergeant Maynard arguendo in Williams v. Hide, /2/ again citing Southcote's Case. In Kenrig v. Eggleston /3/ (24 Car. I., A.D. 1648), "case against a country carrier for not delivering a box," &c., of which he was robbed, nothing was said about custom, nor being a common carrier, unless the above words imply that he was; but it was laid down, as in Southcote's Case, that "it must come on the carrier's part acceptance" if he would lessen his liability as bailee. Nichols v. Moore /4/ (13 Car. II., A.D. 1661) was case against a "water carrier," between Hull and London, laying a delivery to him at York. It was moved in arrest of [192] judgment, that the defendant did not undertake to carry the goods from York to Hull. "But notwithstanding this per totam curiam, the defendant shall be charged on his general receipt at York, according to Southcote's Case." It is fair to mention that in Matthews v. Hopkins /1/ (17 Car. II.)the declaration was on the custom of the realm against a common carrier, and there was a motion in arrest of judgment, because there was a misrecital of the custom of the realm, and the defendant was not alleged to have been a carrier at the time of the receipt, and also because counts in trover, and in case on the custom, were joined. Judgment was arrested, it would seem on the latter ground, but the court continued: "And, although the declaration may be good without recital of the custom of the realm, as Hobart says, still it is the better way to recite it." We now come to the great case of Morse v. Slue /2/ (23 & 24 Car. II., A.D. 1671, 1672). This was an action against the master of a ship lying in the river Thames, for the loss of goods intrusted to him. The goods in question were taken away by robbers, and it was found that the ship had the usual guard at the time. There seem to have been two counts, one on the law and custom of England (1 Vent. 190), for masters of ships "carefully to govern, preserve, and defend goods shipped, so long as said ship should remain in the river Thames" (2 Keb. 866); "to keep safely [goods shipped to be carried from London beyond sea] without loss or subtraction, ita quodpro defectu of them they may not come to any damage" (1 Vent. 190); "to keep safely goods delivered to them to carry, dangers [193] of the sea excepted" (2 Levinz, 69; the exception last was perhaps drawn by the reporter from the usual bills of lading referred to in argument). The second count, which is usually overlooked, was a special count "on delivery and being stolen by his neglect." /1/ The case was twice argued, and all the reports agree, as far as they go, in their statements of the points insisted on. Holt, for the plaintiff, maintained: /2/ 1. That the master receives goods generally, citing Southcote's Case, and that in "only guardian in socage who hath the custody by law, who factor who is servant at the master's dispose, and so cannot take care, are exempt." 2. That the master has a reward for his keeping, and is therefore a proper person to be sued. 3. That the master has a remedy over, citing the case of the Marshal of the King's Bench. /3/ That the mischief would be great if the master were not liable, as merchants put their trust in him, and no particular default be shown, as appears by the bill of lading, and, finally, that neglect appeared. On the other side, it was urged that no neglect was found, and that the master was only a servant; so that, if any one was liable, the owners were. /4/ It was also suggested that, as there would have been no liability if the goods had been taken at sea, when the case would have within the admiralty law, it was absurd that a different rule should govern the beginning of the voyage from would have governed the rest of it. /5/ [194] On the second argument, it was again maintained for the plaintiff that the defendant was liable "at the common law on the general bailment," citing Southcote's Case, and also that, by the Roman and maritime law, he was liable as a public carrier and master of a ship. The opinion of the court was delivered by Chief Justice Hale. It was held that, the ship being within the body of the county, the admiralty law did not apply; or, according to 1 Mod. 85, note a, "the master could not avail himself of the rules of the civil law, by which masters are not chargeable pro damno fatali"; that the master was liable to an action because he took a reward; that "he might have made a caution for himself, which he omitting and taking in the goods generally, he shall answer for what happens." /1/ The case of Kenrig v. Eggleston /2/ seems also to have been referred to. It was further said that the master was rather an officer than a servant, and in effect received his wages from the merchant who paid freight. Finally, on the question of negligence, that it was not sufficient to have the usual number of men to guard the ship, but that it was neglect not to have enough to guard the goods, unless in case of the common enemies, citing the case of the Marshal, which it will be remembered was merely the principle of Southcote's Case and the common law of bailment in another form. /3/ It will be observed that this case did not go on any special custom, either as to common carriers or shipmasters, but that all the arguments and the opinion of the court assumed that, if the case was to be governed by the common law, and not by the milder provisions of the civil [195] law relied on for the defence, and if the defendant could be regarded as a bailee, and not merely a servant of the owners, then the general law of bailment would apply, and the defendant would be charged, as in Southcote's Case, "by his general acceptance." It can hardly be supposed, however, that so enlightened a judge as Sir Matthew Hale would not have broken away the Year Books, if a case had arisen before him where property had been received as a pure favor to the plaintiff, without consideration or reward, and was taken from the defendant by robbery. Such a case was tried before Chief Justice Pemberton, and he very sensibly ruled that no action lay, declining to follow the law of Lord Coke's time to such extreme results /1/ (33 Car. II., A.D. 1681). About the same time, the defendant's common calling began to assume a new importance. The more important alternative allegation, the assumpsit, had the effect in the end of introducing the not intrinsically objectionable doctrine that all duties arising from a bailment are founded on contract. /2/ But this allegation, having now a special action to which it had given rise, was not much used where the action was tort, while the other averment occurs with increasing frequency. The notion was evidently gaining ground that the liability of common carriers for loss of [196] goods, whatever the cause of the loss might be, arose from a special principle peculiar to them, and not applicable to bailees in general. The confusion of independent duties which has been explained, and of which the first trace was seen in Rich v. Kneeland, was soon to become complete. /1/ Holt became Chief Justice. Three of the cases in the last note were rulings of his. In Lane v. Cotton /2/ (13 Will. III., A.D. 1701), he showed his disapproval of Southcote's Case, and his impression that the common law of bailment was borrowed from Rome. The overthrow of Southcote's Case and the old common law may be said to date from Coggs v. Bernard /3/ (2 Anne, A.D. 1703). Lord Holt's famous opinion in the latter case quotes largely from the Roman law as it filtered to him through Bracton; but, whatever influence that may have had upon his general views, the point decided and the distinctions touching common carriers were of English growth. The action did not sound in contract. The cause was for damage to the goods, and the plaintiff sued for a tort, laying an assumpsit by way of inducement to a charge of negligence, as in the days of Henry VI. The plea was not guilty. But after verdict for the plaintiff, there was a motion in arrest of judgment, "for that it was not alleged in the declaration that the defendant was a common porter, nor averred that he had anything for his pains." Consideration was never alleged or thought of in the primitive assumpsit, but in the modern action of contract in that form [197] it was required. Hence, it was inferred that, wherever an assumpsit was laid, even in all action of tort for damage to property, it was the allegation of a contract, and that a consideration must be shown for the undertaking, although the contrary had been decided in the reign of Queen Elizabeth. /1/ But the motion did not prevail, and judgment was given for the plaintiff. Lord Holt was well aware that the use of an assumpsit was not confined to contract. It is true that he said, "The owner's trusting [the defendant] with the goods is a sufficient consideration to oblige him to a careful management," or to return them; but this means as distinguished from a consideration sufficient to oblige him to carry them, which he thought the defendant would not have been bound to do. He then expressly says, "This is a different case, for assumpsit does not only signify a future agreement, but, in such cases as this, it signifies an actual entry upon the thing and taking the trust upon himself"; following the earlier cases in the Year Books. /2/ This was enough for the decision, and the rule in Southcote's Case had nothing to do with the matter. But as the duty of common carriers by reason of their calling was now supposed to extend to all kinds of losses, and the doctrine of Southcote's Case was probably supposed to extend to many kinds of damage, it became necessary, in a general discussion, to reconcile or elect between the two principles. The Chief Justice therefore proceeded to distinguish between [198] bailees for reward exercising a public employment, such as common carriers, common hoymen, masters of ships, &c., and other bailees; denied the rule in Southcote's Case as to the latter; said that the principle of strict responsibility was confined to the former class, and was applied to them on grounds of public policy, and that factors were exonerated, not because they were mere servants, as had always been laid down (among others, by himself in arguing Morse v. Slue), but because they were not within the reason of the rule. The reader who has followed the argument so far, will hardly need to be convinced that this did not mean the adoption of the Praetor's Edict. There is further evidence at hand if required. In the first place, as we have seen, there was a century of precedents ending with Morse v. Slue, argued by Holt himself, in which the liability of masters of ships, hoymen, carriers, &c. had been adjudicated. Morse v. Slue is cited and relied on, and there is no hint of dissatisfaction with the other cases. On the contrary, they furnished the examples of bailees for reward exercising a public calling. The distinction between bailees for reward and others is Chief Justice Popham's; the latter qualification (exercising a public calling) was also English, as has partly appeared already, and as will be explained further on. In the next place, the strict rule is not confined to nautae, caupones, and stabularii, nor even to common carriers; but is applied to all bailees for reward, exercising a public calling. In the next place, the degree of responsibility is precisely that of bailees in general, as worked out by the previous decisions; but quite unlike and much more severe [199] than that imposed by the Roman law, as others have observed. /1/ And, finally, the exemption from liability for acts of God or the public enemy is characteristically English, as will be proved further on. But it has been partially shown in this Lecture that the law of to-day has made the carrier's burden heavier than it was in the time of the Year Books. Southcote's Case, and the earlier authorities which have been cited, all refer to a loss by robbery, theft, or trespass, and hold the bailee liable, where, in theory at least, he has a remedy over. It was with reference to such cases, as has been seen, that the rule arose, although it is not improbable that it would have been applied to an unexplained loss; the writ against innkeepers reads absque subtractionie seu amissione custodire. In later times, the principle may have been extended from loss by theft to loss by destruction. In Symons v. Darknoll /2/ (4 Car. I.), already cited as decided on the authority of Southcote's Case, the goods were spoiled, not stolen, and probably had not even perished in specie. Before this time, the old rule had become an arbitrary precedent, followed according to its form with little thought of its true intent. The language of Coggs v. Bernard is, that "the law charges the person thus intrusted to carry goods as against all events but acts of God and the enemies of the king." This was adopted by solemn decision in Lord Mansfield's time, and it is now settled that the common carrier "is liable for all losses which do not fall within the excepted [200] cases." /1/ That is to say, he has become an insurer to that extent, not only against the disappearance or destruction, but against all forms of damage to the goods except as excepted above. The process by which this came to pass has been traced above, but a few words may be added here. The Year Books, even in dealing with the destruction (as distinguished from the conversion) of chattels in the hands of a bailee, always state his liability as based upon his fault, although it must be admitted that the language is used alio intuitu. /2/ A jettison, in tempest, seems to have been a good plea for a factor in the time of Edward III.; /3/ but that cannot be relied on for an analogy. The argument from the Marshal's case /4/ is stronger. There it appears to have been thought that burning of the prison was as good an excuse for an escape as a release by alien enemies. This must refer to an accidental fire, and would seem to imply that he was not liable in that event, if not in fault. The writs in the Register against bailees to keep or carry goods, all have the general allegation of negligence, and so do the older precedents of declarations, so far as I have observed, whether stating the custom of the realm or not. /5/ But a bailee was answerable for goods wrongfully taken from him, as an innkeeper was for goods stolen from his inn, irrespective of negligence. /6/ It is true that the Marshal's case speaks of his negligent [201] keeping when the prisoners were released by rebels, (although that was far less likely to result from negligence, one would think, than a fire in the prison,) and that after Lord Coke's time negligence was alleged, although the goods had been lost by wrongful taking. So the writ against innkeepers is pro defectu hujusmodi hospitatorum. In these instances, neglect only means a failure de facto to keep safely. As was said at a much later date, "everything is a negligence in a carrier or hoyman that the law does not excuse." /1/ The allegation is simply the usual allegation of actions on the case, and seems to have extended itself from the earlier declarations for damage, when case supplanted detinue and the use of the former action became universal. It can hardly have been immaterial to the case for which it was first introduced. But the short reason for disbelieving that there was any warrant in the old law for making the carrier an insurer against damage is, that there seem to be no early cases in which bailees were held to such a responsibility, and that it was not within the principle on which they were made answerable for a loss by theft. Having traced the process by which a common carrier has been made an insurer, it only remains to say a word upon the origin of the admitted exceptions from the risk assumed. It has been seen already how loss by the public enemy came to be mentioned by Chief Justice Holt. It is the old distinction taken in the Marshal's case that there the bailee has no remedy over. With regard to the act of God, it was a general principle, not peculiar to carriers nor to bailees, that a duty was [202] discharged if an act of God made it impossible of performance. Lord Coke mentions the case of jettison from a Gravesend barge, /1/ and another of a party bound to keep and maintain sea-walls from overflowing, as subject to the same limitation, /2/ and a similar statement as to contracts in general will be found in the Year Books. /3/ It is another form of the principle which has been laboriously reargued in our own day, that parties are excused from the performance of a contract which has become impossible before breach from the perishing of the thing, or from change of circumstances the continued existence of which was the foundation of the contract, provided there was no warranty and no fault on the part of the contractor. Whether the act of God has now acquired a special meaning with regard to common carriers may be left for others to consider. It appears, from the foregoing evidence, that we cannot determine what classes of bailees are subject to the strict responsibility imposed on common carriers by referring to the Praetor's Edict and then consulting the lexicons under Nautoe, Caupones, or Stabularii. The question of precedent is simply to what extent the old common law of bailment still survives. We can only answer it by enumerating the decisions in which the old law is applied; and we shall find it hard to bring them together under a general principle. The rule in Southcote's Case has been done away with for bailees in general: that is clear. But it is equally clear that it has not maintained itself, even within the limits of the public policy invented by Chief Justice [203] Holt. It is not true to-day that all bailees for reward exercising a public calling are insurers. No such doctrine is applied to grain-elevators or deposit-vaults. /1/ How Lord Holt came to distinguish between bailees for reward and others has been shown above. It is more pertinent here to notice that his further qualification, exercising a public calling, was part of a protective system which has passed away. One adversely inclined might say that it was one of many signs that the law was administered in the interest of the upper classes. It has been shown above that if a man was a common farrier he could be charged for negligence without an assumpsit. The same judge who threw out that intimation established in another case that he could be sued if he refused to shoe a horse on reasonable request. /2/ Common carriers and common innkeepers were liable in like case, and Lord Holt stated the principle: "If a man takes upon him a public employment, he is bound to serve the public as far as the employment extends, and for refusal an action lies." /3/ An attempt to apply this doctrine generally at the present day would be thought monstrous. But it formed part of a consistent scheme for holding those who followed useful callings up to the mark. Another part was the liability of persons exercising a public employment for loss or damage, enhanced in cases of bailment by what remained of the rule in Southcote's Case. The scheme has given way to more liberal notions; but the disjecta membra still move. Lord Mansfield stated his views of public policy in terms [204] not unlike those used by Chief Justice Holt in Coggs v. Bernard, but distinctly confines their application to common carriers. "But there is a further degree of responsibility by the custom of the realm, that is, by the common law; a carrier is in the nature of an insurer.... To prevent litigation, collusion, and the necessity of going into circumstances impossible to be unravelled, the law presumes against the carrier, unless," &c. /1/ At the present day it is assumed that the principle is thus confined, and the discussion is transferred to the question who are common carriers. It is thus conceded, by implication, that Lord Holt's rule has been abandoned. But the trouble is, that with it disappear not only the general system which we have seen that Lord Holt entertained, but the special reasons repeated by Lord Mansfield. Those reasons apply to other bailees as well as to common carriers. Besides, hoymen and masters of ships were not originally held because they were common carriers, and they were all three treated as co-ordinate species, even in Coggs v. Bernard, where they were mentioned only as so many instances of bailees exercising a public calling. We do not get a new and single principle by simply giving a single name to all the cases to be accounted for. If there is a sound rule of public policy which ought to impose a special responsibility upon common carriers, as those words are now understood, and upon no others, it has never yet been stated. If, on the other hand, there are considerations which apply to a particular class among those so designated,--for instance, to railroads, who may have a private individual at their mercy, or exercise a power too vast for the common welfare,--we do not prove that the [205] reasoning extends to a general ship or a public cab by calling all three common carriers. If there is no common rule of policy, and common carriers remain a merely empirical exception from general doctrine, courts may well hesitate to extend the significance of those words. Furthermore, notions of public policy which would not leave parties free to make their own bargains are somewhat discredited in most departments of the law. /1/ Hence it may perhaps be concluded that, if any new case should arise, the degree of responsibility, and the validity and interpretation of any contract of bailment that there may be, should stand open to argument on general principles, and that the matter has been set at large so far as early precedent is concerned. I have treated of the law of carriers at greater length than is proportionate, because it seems to me an interesting example of the way in which the common law has grown up, and, especially, because it is an excellent illustration of the principles laid down at the end of the first Lecture. I now proceed to the discussion for the sake of which an account of the law of bailment was introduced, and to which an understanding of that part of the law is a necessary preliminary. [206] LECTURE VI. -- POSSESSION. POSSESSION is a conception which is only less important than contract. But the interest attaching to the theory of possession does not stop with its practical importance in the body of English law. The theory has fallen into the hands of the philosophers, and with them has become a corner-stone of more than one elaborate structure. It will be a service to sound thinking to show that a far more civilized system than the Roman is framed upon a plan which is irreconcilable with the a priori doctrines of Kant and Hegel. Those doctrines are worked out in careful correspondence with German views of Roman law. And most of the speculative jurists of Germany, from Savigny to Ihering, have been at once professors of Roman law, and profoundly influenced if not controlled by some form of Kantian or post-Kantian philosophy. Thus everything has combined to give a special bent to German speculation, which deprives it of its claim to universal authority. Why is possession protected by the law, when the possessor is not also an owner? That is the general problem which has much exercised the German mind. Kant, it is well known, was deeply influenced in his opinions upon ethics and law by the speculations of Rousseau. Kant, Rousseau, and the Massachusetts Bill of Rights agree that all men are born free and equal, and one or the other branch of that declaration has afforded the answer to the [207] question why possession should be protected from that day to this. Kant and Hegel start from freedom. The freedom of the will, Kant said, is the essence of man. It is an end in itself; it is that which needs no further explanation, which is absolutely to be respected, and which it is the very end and object of all government to realize and affirm. Possession is to be protected because a man by taking possession of an object has brought it within the sphere of his will. He has extended his personality into or over that object. As Hegel would have said, possession is the objective realization of free will. And by Kant's postulate, the will of any individual thus manifested is entitled to absolute respect from every other individual, and can only be overcome or set aside by the universal will, that is, by the state, acting through its organs, the courts. Savigny did not follow Kant on this point. He said that every act of violence is unlawful, and seemed to consider protection of possession a branch of protection to the person. /1/ But to this it was answered that possession was protected against disturbance by fraud as well as by force, and his view is discredited. Those who have been contented with humble grounds of expediency seem to have been few in number, and have recanted or are out of favor. The majority have followed in the direction pointed out by Kant. Bruns, an admirable writer, expresses a characteristic yearning of the German mind, when he demands an internal juristic necessity drawn from the nature of possession itself, and therefore rejects empirical reasons. /2/ He finds the necessity he seeks in the freedom of the human will, which the whole legal system does but recognize [208] and carry out. Constraint of it is a wrong, which must be righted without regard to conformity of the will to law, and so on in a Kantian vein. /1/ So Gans, a favorite disciple of Hegel, "The will is of itself a substantial thing to be protected, and this individual will has only to yield to the higher common will." /2/ So Puchta, a great master, "The will which wills itself, that is, the recognition of its own personality, is to be protected." /3/ The chief variation from this view is that of Windscheid, a writer now in vogue. He prefers the other branch of the declaration in the Bill of Rights. He thinks that the protection to possession stands on the same grounds as protection against injuria, that every one is the equal of every other in the state, and that no one shall raise himself over the other. /4/ Ihering, to be sure, a man of genius, took an independent start, and said that possession is ownership on the defensive; and that, in favor of the owner, he who is exercising ownership in fact (i. e. the possessor) is freed from the necessity of proving title against one who is in an unlawful position. But to this it was well answered by Bruns, in his later work, that it assumes the title of disseisors to be generally worse than that of disseisees, which cannot be taken for granted, and which probably is not true in fact. /5/ It follows from the Kantian doctrine, that a man in possession is to be confirmed and maintained in it until he is put out by an action brought for the purpose. Perhaps [209] another fact besides those which have been mentioned has influenced this reasoning, and that is the accurate division between possessory and petitory actions or defences in Continental procedure. /1/ When a defendant in a possessory action is not allowed to set up title in himself, a theorist readily finds a mystical importance in possession. But when does a man become entitled to this absolute protection? On the principle of Kant, it is not enough that he has the custody of a thing. A protection based on the sacredness of man's personality requires that the object should have been brought within the sphere of that personality, that the free will should have unrestrainedly set itself into that object. There must be then an intent to appropriate it, that is, to make it part of one's self, or one's own. Here the prevailing view of the Roman law comes in to fortify principle with precedent. We are told that, of the many who might have the actual charge or custody of a thing, the Roman law recognized as possessor only the owner, or one holding as owner and on his way to become one by lapse of time. In later days it made a few exceptions on practical grounds. But beyond the pledgee and the sequester (a receiver appointed by the court) these exceptions are unimportant and disputed. /2/ Some of the Roman jurists state in terms that depositaries and borrowers have not possession of the things intrusted to them. /3/ Whether the German interpretation of the sources goes too far or not, it must be taken account of in the examination of German theories. [210] Philosophy by denying possession to bailees in general cunningly adjusted itself to the Roman law, and thus put itself in a position to claim the authority of that law for the theory of which the mode of dealing with bailees was merely a corollary. Hence I say that it is important to show that a far more developed, more rational, and mightier body of law than the Roman, gives no sanction to either premise or conclusion as held by Kant and his successors. In the first place, the English law has always had the good sense /1/ to allow title to be set up in defence to a possessory action. In the assize of novel disseisin, which which was a true possessory action, the defendant could always rely on his title. /2/ Even when possession is taken or kept in a way which is punished by the criminal law, as in case of forcible entry and detainer, proof of title allows the defendant to retain it, and in many cases has been held an answer to an action of trespass. So in trespass for taking goods the defendant may set up title in himself. There might seem to be a trace of the distinction in the general rule, that the title cannot be tried in trespass quare clausum. But this is an exception commonly put on the ground that the judgment cannot change the property, as trespass for chattels or trover can. /3/ The rule that you cannot go into title in a possessory action presupposes great difficulty in the proof, the probatio diabolica of the Canon law, delays in the process, and importance of possession [211] ad interim,--all of which mark a stage of society which has long been passed. In ninety-nine cases out of a hundred, it is about as easy and cheap to prove at least a prima facie title as it is to prove possession. In the next place, and this was the importance of the last Lecture to this subject, the common law has always given the possessory remedies to all bailees without exception. The right to these remedies extends not only to pledgees, lessees, and those having a lien, who exclude their bailor, but to simple bailees, as they have been called, who have no interest in the chattels, no right of detention as against the owner, and neither give nor receive a reward. /1/ Modern German statutes have followed in the same path so far as to give the possessory remedies to tenants and some others. Bruns says, as the spirit of the Kantian theory required him to say, that this is a sacrifice of principle to convenience. /2/ But I cannot see what is left of a principle which avows itself inconsistent with convenience and the actual course of legislation. The first call of a theory of law is that it should fit the facts. It must explain the observed course of legislation. And as it is pretty certain that men will make laws which seem to them convenient without troubling themselves very much what principles are encountered by their legislation, a principle which defies convenience is likely to wait some time before it finds itself permanently realized. It remains, then, to seek for some ground for the protection of possession outside the Bill of Rights or the Declaration of Independence, which shall be consistent with the larger scope given to the conception in modern law. [212] The courts have said but little on the subject. It was laid down in one case that it was an extension of the protection which the law throws around the person, and on that ground held that trespass quare clausum did not pass to an assignee in bankruptcy. /1/ So it has been said, that to deny a bankrupt trover against strangers for goods coming to his possession after his bankruptcy would be "an invitation to all the world to scramble for the possession of them"; and reference was made to "grounds of policy and convenience." /2/ I may also refer to the cases of capture, some of which will be cited again. In the Greenland whale-fishery, by the English custom, if the first striker lost his hold on the fish, and it was then killed by another, the first had no claim; but he had the whole if he kept fast to the whale until it was struck by the other, although it then broke from the first harpoon. By the custom in the Gallipagos, on the other hand, the first striker had half the whale, although control of the line was lost. /3/ Each of these customs has been sustained and acted on by the English courts, and Judge Lowell has decided in accordance with still a third, which gives the whale to the vessel whose iron first remains in it, provided claim be made before cutting in. /4/ The ground as put by Lord Mansfield is simply that, were it not for such customs, there must be a sort of warfare perpetually subsisting between the adventurers. /5/ If courts adopt different rules on similar facts, according to the point at which men will fight in the [213] several cases, it tends, so far as it goes, to shake an a priori theory of the matter. Those who see in the history of law the formal expression of the development of society will be apt to think that the proximate ground of law must be empirical, even when that ground is the fact that a certain ideal or theory of government is generally entertained. Law, being a practical thing, must found itself on actual forces. It is quite enough, therefore, for the law, that man, by an instinct which he shares with the domestic dog, and of which the seal gives a most striking example, will not allow himself to be dispossessed, either by force or fraud, of what he holds, without trying to get it back again. /1/ Philosophy may find a hundred reasons to justify the instinct, but it would be totally immaterial if it should condemn it and bid us surrender without a murmur. As long as the instinct remains, it will be more comfortable for the law to satisfy it in an orderly manner, than to leave people to themselves. If it should do otherwise, it would become a matter for pedagogues, wholly devoid of reality. I think we are now in a position to begin the analysis of possession. It will be instructive to say a word in the first place upon a preliminary question which has been debated with much zeal in Germany. Is possession a fact or a right? This question must be taken to mean, by possession and right, what the law means by those words, and not something else which philosophers or moralists may mean by them; for as lawyers we have nothing to do with either, except in a legal sense. If this had always been borne steadily in mind, the question would hardly have been asked. [214] A legal right is nothing but a permission to exercise certain natural powers, and upon certain conditions to obtain protection, restitution, or compensation by the aid of the public force. Just so far as the aid of the public force is given a man, he has a legal right, and this right is the same whether his claim is founded in righteousness or iniquity. Just so far as possession is protected, it is as much a source of legal rights as ownership is when it secures the same protection. Every right is a consequence attached by the law to one or more facts which the law defines, and wherever the law gives any one special rights not shared by the body of the people, it does so on the ground that certain special facts, not true of the rest of the world, are true of him. When a group of facts thus singled out by the law exists in the case of a given person, he is said to be entitled to the corresponding rights; meaning, thereby, that the law helps him to constrain his neighbors, or some of them, in a way in which it would not, if all the facts in question were not true of him. Hence, any word which denotes such a group of facts connotes the rights attached to it by way of legal consequences, and any word which denotes the rights attached to a group of facts connotes the group of facts in like manner. The word "possession" denotes such a group of facts. Hence, when we say of a man that he has possession, we affirm directly that all the facts of a certain group are true of him, and we convey indirectly or by implication that the law will give him the advantage of the situation. Contract, or property, or any other substantive notion of the law, may be analyzed in the same way, and should be treated in the same order. The only difference is, that, [215] while possession denotes the facts and connotes the consequence, property always, and contract with more uncertainty and oscillation, denote the consequence and connote the facts. When we say that a man owns a thing, we affirm directly that he has the benefit of the consequences attached to a certain group of facts, and, by implication, that the facts are true of him. The important thing to grasp is, that each of these legal compounds, possession, property, and contract, is to be analyzed into fact and right, antecedent and consequent, in like manner as every other. It is wholly immaterial that one element is accented by one word, and the other by the other two. We are not studying etymology, but law. There are always two things to be asked: first, what are the facts which make up the group in question; and then, what are the consequences attached by the law to that group. The former generally offers the only difficulties. Hence, it is almost tautologous to say that the protection which the law attaches by way of consequence to possession, is as truly a right in a legal sense as those consequences which are attached to adverse holding for the period of prescription, or to a promise for value or under seal. If the statement is aided by dramatic reinforcement, I may add that possessory rights pass by descent or devise, as well as by conveyance, /1/ and that they are taxed as property in some of the States. /2/ We are now ready to analyze possession as understood by the common law. In order to discover the facts which constitute it, it will be found best to study them at the moment when possession is first gained. For then they must [216] all be present in the same way that both consideration and promise must be present at the moment of making a contract. But when we turn to the continuance of possessory rights, or, as is commonly said, the continuance of possession, it will be agreed by all schools that less than all the facts required to call those rights into being need continue presently true in order to keep them alive. To gain possession, then, a man must stand in a certain physical relation to the object and to the rest of the world, and must have a certain intent. These relations and this intent are the facts of which we are in search. The physical relation to others is simply a relation of manifested power coextensive with the intent, and will need to have but little said about it when the nature of the intent is settled. When I come to the latter, I shall not attempt a similar analysis to that which has been pursued with regard to intent as an element of liability. For the principles developed as to intent in that connection have no relation to the present subject, and any such analysis so far as it did not fail would be little more than a discussion of evidence. The intent inquired into here must be overtly manifested, perhaps, but all theories of the grounds on which possession is protected would seem to agree in leading to the requirement that it should be actual, subject, of course, to the necessary limits of legal investigation. But, besides our power and intent as towards our fellow-men, there must be a certain degree of power over the object. If there were only one other man in the world, and he was safe under lock and key in jail, the person having the key would not possess the swallows that flew over the prison. This element is illustrated by cases of capture, [217] although no doubt the point at which the line is drawn is affected by consideration of the degree of power obtained as against other people, as well as by that which has been gained over the object. The Roman and the common law agree that, in general, fresh pursuit of wild animals does not give the pursuer the rights of possession. Until escape has been made impossible by some means, another may step in and kill or catch and carry off the game if he can. Thus it has been held that an action does not lie against a person for killing and taking a fox which had been pursued by another, and was then actually in the view of the person who had originally found, started, and chased it. /1/ The Court of Queen's Bench even went so far as to decide, notwithstanding a verdict the other way, that when fish were nearly surrounded by a seine, with an opening of seven fathoms between the ends, at which point boats were stationed to frighten them from escaping, they were not reduced to possession as against a stranger who rowed in through the opening and helped himself. /2/ But the difference between the power over the object which is sufficient for possession, and that which is not, is clearly one of degree only, and the line may be drawn at different places at different times on grounds just referred to. Thus we are told that the legislature of New York enacted, in 1844, that any one who started and pursued deer in certain counties of that State should be deemed in possession of the game so long as he continued in fresh pursuit of it, /3/ and to that extent modified the New York decisions just cited. So, while Justinian decided that a wild beast so [218] badly wounded that it might easily be taken must be actually taken before it belongs to the captors, /1/ Judge Lowell, with equal reason, has upheld the contrary custom of the American whalemen in the Arctic Ocean, mentioned above, which gives a whale to the vessel whose iron first remains in it, provided claim be made before cutting in. /2/ We may pass from the physical relation to the object with these few examples, because it cannot often come into consideration except in the case of living and wild things. And so we come to the intent, which is the really troublesome matter. It is just here that we find the German jurists unsatisfactory, for reasons which I have already explained. The best known theories have been framed as theories of the German interpretation of the Roman law, under the influence of some form of Kantian or post-Kantian philosophy. The type of Roman possession, according to German opinion, was that of an owner, or of one on his way to become owner. Following this out, it was said by Savigny, the only writer on the subject with whom English readers are generally acquainted, that the animus domini, or intent to deal with the thing as owner, is in general necessary to turn a mere physical detention into juridical possession. /3/ We need not stop to inquire whether this modern form or the [Greek characters] (animus dominantis, animus dominandi) of Theophilus /4/ and the Greek sources is more exact; for either excludes, as the civilians and canonists do, and as the [219] German theories must, most bailees and termors from the list of possessors. /1/ The effect of this exclusion as interpreted by the Kantian philosophy of law, has been to lead the German lawyers to consider the intent necessary to possession as primarily self-regarding. Their philosophy teaches them that a man's physical power over an object is protected because he has the will to make it his, and it has thus become a part of his very self, the external manifestation of his freedom. /2/ The will of the possessor being thus conceived as self-regarding, the intent with which he must hold is pretty clear: he must hold for his own benefit. Furthermore, the self-regarding intent must go to the height of an intent to appropriate; for otherwise, it seems to be implied, the object would not truly be brought under the personality of the possessor. The grounds for rejecting the criteria of the Roman law have been shown above. Let us begin afresh. Legal duties are logically antecedent to legal rights. What may be their relation to moral rights if there are any, and whether moral rights are not in like manner logically the offspring of moral duties, are questions which do not concern us here. These are for the philosopher, who approaches the law from without as part of a larger series of human manifestations. The business of the jurist is to make known the content of the law; that is, to work upon it from within, or logically, arranging and distributing it, in order, from its stemmum genus to its infima species, so far as practicable. Legal duties then come before legal [220] rights. To put it more broadly, and avoid the word duty, which is open to objection, the direct working of the law is to limit freedom of action or choice on the part of a greater or less number of persons in certain specified ways; while the power of removing or enforcing this limitation which is generally confided to certain other private persons, or, in other words, a right corresponding to the burden, is not a necessary or universal correlative. Again, a large part of the advantages enjoyed by one who has a right are not created by the law. The law does not enable me to use or abuse this book which lies before me. That is a physical power which I have without the aid of the law. What the law does is simply to prevent other men to a greater or less extent from interfering with my use or abuse. And this analysis and example apply to the case of possession, as well as to ownership. Such being the direct working of the law in the case of possession, one would think that the animus or intent most nearly parallel to its movement would be the intent of which we are in search. If what the law does is to exclude others from interfering with the object, it would seem that the intent which the law should require is an intent to exclude others. I believe that such an intent is all that the common law deems needful, and that on principle no more should be required. It may be asked whether this is not simply the animus domini looked at from the other side. If it were, it would nevertheless be better to look at the front of the shield than at the reverse. But it is not the same if we give to the animus domini the meaning which the Germans give it, and which denies possession to bailees in general. The intent to appropriate or deal with a thing as owner can [221] hardly exist without an intent to exclude others, and something more; but the latter may very well be where there is no intent to hold as owner. A tenant for years intends to exclude all persons, including the owner, until the end of his term; yet he has not the animus domini in the sense explained. Still less has a bailee with a lien, who does not even mean to use, but only to detain the thing for payment. But, further, the common law protects a bailee against strangers, when it would not protect him against the owner, as in the case of a deposit or other bailment terminable at pleasure; and we may therefore say that the intent even to exclude need not be so extensive as would be implied in the animus domini. If a bailee intends to exclude strangers to the title, it is enough for possession under our law, although he is perfectly ready to give the thing up to its owner at any moment; while it is of the essence of the German view that the intent must not be relative, but an absolute, self-regarding intent to take the benefit of the thing. Again, if the motives or wishes, and even the intentions, most present to the mind of a possessor, were all self-regarding, it would not follow that the intent toward others was not the important thing in the analysis of the law. But, as we have seen, a depositary is a true possessor under the common-law theory, although his intent is not self-regarding, and he holds solely for the benefit of the owner. There is a class of cases besides those of bailees and tenants, which will probably, although not necessarily, be decided one way or the other, as we adopt the test of an intent to exclude, or of the animus domini. Bridges v. Hawkesworth /1/ will serve as a starting-point. There, [222] a pocket-book was dropped on the floor of a shop by a customer, and picked up by another customer before the shopkeeper knew of it. Common-law judges and civilians would agree that the finder got possession first, and so could keep it as against the shopkeeper. For the shopkeeper, not knowing of the thing, could not have the intent to appropriate it, and, having invited the public to his shop, he could not have the intent to exclude them from it. But suppose the pocket-book had been dropped in a private room, how should the case be decided? There can be no animus domini unless the thing is known of; but an intent to exclude others from it may be contained in the larger intent to exclude others from the place where it is, without any knowledge of the object's existence. In McAvoy v. Medina, /1/ a pocket-book had been left upon a barber's table, and it was held that the barber had a better right than the finder. The opinion is rather obscure. It takes a distinction between things voluntarily placed on a table and things dropped on the floor, and may possibly go on the ground that, when the owner leaves a thing in that way, there is an implied request to the shopkeeper to guard it, which will give him a better right than one who actually finds it before him. This is rather strained, however, and the court perhaps thought that the barber had possession as soon as the customer left the shop. A little later, in a suit for a reward offered to the finder of a pocket-book, brought by one who discovered it where the owner had left it, on a desk for the use of customers in a bank outside the teller's counter, the same court said that this was not the finding of a lost article, and that "the occupants of the banking house, and not [223] the plaintiff, were the proper depositaries of an article so left." /1/ This language might seem to imply that the plaintiff was not the person who got possession first after the defendant, and that, although the floor of a shop may be likened to a street, the public are to be deemed excluded from the shop's desks, counters, and tables except for the specific use permitted. Perhaps, however, the case only decides that the pocket-book was not lost within the condition of the offer. I should not have thought it safe to draw any conclusion from wreck cases in England, which are mixed up with questions of prescription and other rights. But the precise point seems to have been adjudicated here. For it has been held that, if a stick of timber comes ashore on a man's land, he thereby acquires a "right of possession" as against an actual finder who enters for the purpose of removing it. /2/ A right of possession is said to be enough for trespass; but the court seems to have meant possession by the phrase, inasmuch as Chief Justice Shaw states the question to be which of the parties had "the preferable claim, by mere naked possession, without other title," and as there does not seem to have been any right of possession in the case unless there was actual possession. In a criminal case, the property in iron taken from the bottom of a canal by a stranger was held well laid in the canal company, although it does not appear that the company knew of it, or had any lien upon it. /3/ [224] The only intent concerning the thing discoverable in such instances is the general intent which the occupant of land has to exclude the public from the land, and thus, as a consequence, to exclude them from what is upon it. The Roman lawyers would probably have decided all these cases differently, although they cannot be supposed to have worked out the refined theories which have been built upon their remains. /1/ I may here return to the case of goods in a chest delivered under lock and key, or in a bale, and the like. It is a rule of the criminal law, that, if a bailee of such a chest or bale wrongfully sells the entire chest or bale, he does not commit larceny, but if he breaks bulk he does, because in the former case he does not, and in the latter he does, commit a trespass. /2/ The reason sometimes offered is, that, by breaking bulk, the bailee determines the bailment, and that the goods at once revest in the possession of the bailor. This is, perhaps, an unnecessary, as well as inadequate fiction. /3/ The rule comes from the Year Books, and the theory of the Year Books was, that, although the chest was delivered to the bailee, the goods inside of it were not, and this theory was applied to civil as well as criminal cases. The bailor has the power and intent to exclude the bailee from the goods, and therefore may be said to be in possession of them as against the bailee. /4/ [225] On the other hand, a case in Rhode Island /1/ is against the view here taken. A man bought a safe, and then, wishing to sell it again, sent it to the defendant, and gave him leave to keep his books in it until sold. The defendant found some bank-notes stuck in a crevice of the safe, which coming to the plaintiff's ears he demanded the safe and the money. The defendant sent back the safe, but refused to give up the money, and the court sustained him in his refusal. I venture to think this decision wrong. Nor would my opinion be changed by assuming, what the report does not make perfectly clear, that the defendant received the safe as bailee, and not as servant or agent, and that his permission to use the safe was general. The argument of the court goes on the plaintiff's not being a finder. The question is whether he need be. It is hard to believe that, if the defendant had stolen the bills from the safe while it was in the owner's hands, the property could not have been laid in the safe-owner, /2/ or that the latter could not have maintained trover for them if converted under those circumstances. Sir James Stephen seems to have drawn a similar conclusion from Cartwright v. Green and Merry v. Green; /3/ but I believe that no warrant for it can be found in the cases, and still less for the reason suggested. It will be understood, however, that Durfee v. Jones is perfectly consistent with the view here maintained of the [226] general nature of the necessary intent, and that it only touches the subordinate question, whether the intent to exclude must be directed to the specific thing, or may be even unconsciously included in a larger intent, as I am inclined to believe. Thus far, nothing has been said with regard to the custody of servants. It is a well-known doctrine of the criminal law, that a servant who criminally converts property of his master intrusted to him and in his custody as servant, is guilty of theft, because he is deemed to have taken the property from his master's possession. This is equivalent to saying that a servant, having the custody of his master's property as servant, has not possession of that property, and it is so stated in the Year Books. /1/ The anomalous distinction according to which, if the servant receives the thing from another person for his master, the servant has the possession, and so cannot commit theft, /2/ is made more rational by the old cases. For the distinction taken in them is, that, while the servant is in the house or with his master, the latter retains possession, but if he delivers his horse to his servant to ride to market, or gives him a bag to carry to London, then the thing is out of the master's possession and in the servant's. /3/ In this more intelligible form, the rule would not now prevail. But one half of it, that a guest at a tavern has not possession of the plate with which he is served, is no doubt still law, [227] for guests in general are likened to servants in their legal position. /1/ There are few English decisions, outside the criminal on the question whether a servant has possession. But the Year Books do not suggest any difference between civil and criminal cases, and there is an almost tradition of courts and approved writers that he has not, in any case. A master has maintained trespass against a servant for converting cloth which he was employed to sell, /2/ and the American cases go the full length of the old doctrine. It has often been remarked that a servant must be distinguished from a bailee. But it may be asked how the denial of possession to servants can be made to agree with the test proposed, and it will be said with truth that the servant has as much the intent to exclude the world at large as a borrower. The law of servants is unquestionably at variance with that test; and there can be no doubt that those who have built their theories upon the Roman law have been led by this fact, coupled with the Roman doctrine as to bailees in general, to seek the formula of reconciliation where they have. But, in truth, the exception with regard to servants stands on purely historical grounds. A servant is denied possession, not from any peculiarity of intent with regard to the things in his custody, either towards his master or other people, by which he is distinguished [228] from a depositary, but simply as one of the incidents of his status. It is familiar that the status of a servant maintains many marks of the time when he was a slave. The liability of the master for his torts is one instance. The present is another. A slave's possession was his owner's possession on the practical ground of the owner's power over him, /1/ and from the fact that the slave had no standing before the law. The notion that his personality was merged in that of his family head survived the era of emancipation. I have shown in the first Lecture /2/ that agency arose out of the earlier relation in the Roman law, through the extension pro hac vice to a freeman of conceptions derived from that source. The same is true, I think, of our own law, the later development of which seems to have been largely under Roman influence. As late as Blackstone, agents appear under the general head of servants, and the first precedents cited for the peculiar law of agents were cases of master and servant. Blackstone's language is worth quoting: "There is yet a fourth species of servants, if they may be so called, being rather in a superior, a ministerial capacity; such as stewards, factors, and bailiffs: whom, however, the law considers as servants pro tempore, with regard to such of their acts as affect their master's or employer's property." /3/ [229] It is very true that in modern times many of the effects of either relation--master and servant or principal and agent--may be accounted for as the result of acts done by the master himself. If a man tells another to make a contract in his name, or commands him to commit a tort, no special conception is needed to explain why he is held; although even in such cases, where the intermediate party was a freeman, the conclusion was not reached until the law had become somewhat mature. But, if the title Agency deserves to stand in the law at all, it must be because some peculiar consequences are attached to the fact of the relation. If the mere power to bind a principal to an authorized contract were all, we might as well have a chapter on ink and paper as on agents. But it is not all. Even in the domain of contract, we find the striking doctrine that an undisclosed principal has the rights as well as the obligations of a known contractor,--that he can be sued, and, more remarkable, can sue on his agent's contract. The first precedent cited for the proposition that a promise to an agent may be laid as a promise to the principal, is a case of master and servant. /1/ As my present object is only to show the meaning of the doctrine of identification in its bearing upon the theory of possession, it would be out of place to consider at any length how far that doctrine must be invoked to explain the liability of principals for their agents' torts, or whether a more reasonable rule governs other cases than that applied where the actor has a tolerably defined status as a [230] servant. I allow myself a few words, because I shall not be able to return to the subject. If the liability of a master for the torts of his servant had hitherto been recognized by the courts as the decaying remnant of an obsolete institution, it would not be surprising to find it confined to the cases settled by ancient precedent. But such has not been the fact. It has been extended to new relations by analogy, /1/ It exists where the principal does not stand in the relation of paterfamilias to the actual wrong-doer. /2/ A man may be held for another where the relation was of such a transitory nature as to exclude the conception of status, as for the negligence of another person's servant momentarily acting for the defendant, or of a neighbor helping him as a volunteer; /3/ and, so far as known, no principal has ever escaped on the ground of the dignity of his agent's employment. /4/ The courts habitually speak as if the same rules applied to brokers and other agents, as to servants properly so called. /5/ Indeed, it [231] has been laid down in terms, that the liability of employers is not confined to the case of servants, /1/ although the usual cases are, of course, those of menial servants, and the like, who could not pay a large verdict. On the other hand, if the peculiar doctrines of agency are anomalous, and form, as I believe, the vanishing point of the servile status, it may well happen that common sense will refuse to carry them out to their furthest applications. Such conflicts between tradition and the instinct of justice we may see upon the question of identifying a principal who knows the truth with an agent who makes a false representation, in order to make out a fraud, as in Cornfoot v. Fowke, /2/ or upon that as to the liability of a principal for the frauds of his agent discussed in many English cases. /3/ But, so long as the fiction which makes the root of a master's liability is left alive, it is as hopeless to reconcile the differences by logic as to square the circle. In an article in the American Law Review /4/ I referred [232] to an expression of Godefroi with regard to agents; eadem est persona domini et procuratoris. /1/ This notion of a fictitious unity of person has been pronounced a darkening of counsel in a recent useful work. /2/ But it receives the sanction of Sir Henry Maine, /3/ and I believe that it must stand as expressing an important aspect of the law, if, as I have tried to show, there is no adequate and complete explanation of the modern law, except by the survival in practice of rules which lost their true meaning when the objects of them ceased to be slaves. There is no trouble in understanding what is meant by saying that a slave has no legal standing, but is absorbed in the family which his master represents before the law. The meaning seems equally clear when we say that a free servant, in his relations as such, is in many respects likened by the law to a slave (not, of course, to his own detriment as a freeman). The next step is simply that others not servants in a general sense may be treated as if servants in a particular connection. This is the progress of ideas as shown us by history; and this is what is meant by saying that the characteristic feature which justifies agency as a title of the law is the absorption pro hac vice of the agent's legal individuality in that of his principal. If this were carried out logically, it would follow that an agent constituted to hold possession in his principal's name would not be regarded as having the legal possession, or as entitled to trespass. But, after what has been said, no opinion can be expressed whether the law would go so far, unless it is shown by precedent. /4/ The nature of the case [233] will be observed. It is that of an agent constituted for the very point and purpose of possession. A bailee may be an agent for some other purpose. A free servant may be made a bailee. But the bailee holds in his own as we say, following the Roman idiom, and the servant or agent holding as such does not. It would hardly be worth while, if space allowed, to search the books on this subject, because of the great confusion of language to be found in them. It has been said, for instance, in this connection, that a carrier is a servant; /1/ while nothing can be clearer than that, while goods are in custody, they are in his possession. /2/ So where goods remain in the custody of a vendor, appropriation to the contract and acceptance have been confounded with delivery. /3/ Our law has adopted the Roman doctrine, /4/ that there may be a delivery, that is, a change of possession, by a change in the character in which the vendor holds, but has not always imitated the caution of the civilians with regard to what amounts to such a change. /5/ Bailees are constantly spoken of as if they were agents to possess,--a confusion made [234] easier by the fact that they generally are agents for other purposes. Those cases which attribute possession to a transferee of goods in the hands of a middleman, /1/ without distinguishing whether the middleman holds in his own name or the buyer's, are generally right in the result, no doubt, but have added to the confusion of thought upon the subject. German writers are a little apt to value a theory of possession somewhat in proportion to the breadth of the distinction which it draws between juridical possession and actual detention; but, from the point of view taken here, it will be seen that the grounds for denying possession and the possessory remedies to servants and agents holding as such--if, indeed, the latter have not those remedies--are merely historical, and that the general theory can only take account of the denial as an anomaly. It will also be perceived that the ground on which servants and depositaries have been often likened to each other, namely, that they both hold for the benefit of another and not for themselves, is wholly without influence on our law, which has always treated depositaries as having possession; and is not the true explanation of the Roman doctrine, which did not decide either case upon that ground, and which decided each for reasons different from those on which it decided the other. It will now be easy to deal with the question of power as to third persons. This is naturally a power coextensive with the intent. But we must bear in mind that the law deals only or mainly with manifested facts; and hence, when we speak of a power to exclude others, we mean no more than a power which so appears in its manifestation. [235] A ruffian may be within equal reach and sight when a child picks up a pocket-book; but if he does nothing, the child has manifested the needful power as well as if it had been backed by a hundred policemen. Thus narrowed, it might be suggested that the manifestation of is only important as a manifestation of intent. But the two things are distinct, and the former becomes decisive when there are two contemporaneous and conflicting intents. Thus, where two parties, neither having title, claimed a crop of corn adversely to each other, and cultivated it alternately, and the plaintiff gathered and threw it in small piles in the same field, where it lay for a week, and then each party simultaneously began to carry it away, it was held the plaintiff had not gained possession. /1/ But the first interference of the defendant had been after the gathering into piles, the plaintiff would probably have recovered. /2/ So where trustees possessed of a schoolroom put in a schoolmaster, and he was afterwards dismissed, but the next day (June 30) re-entered by force; on the fourth of July he was required by notice to depart, and was not ejected until the eleventh; it was considered that the schoolmaster never got possession as against the trustees. /3/ We are led, in this connection, to the subject of the continuance of the rights acquired by gaining possession. To gain possession, it has been seen, there must be certain physical relations, as explained, and a certain intent. It remains to be inquired, how far these facts must continue [236] to be presently true of a person in order that he may keep the rights which follow from their presence. The prevailing view is that of Savigny. He thinks that there must be always the same animus as at the moment of acquisition, and a constant power to reproduce at will the original physical relations to the object. Every one agrees that it is not necessary to have always a present power over the thing, otherwise one could only possess what was under his hand. But it is a question whether we cannot dispense with even more. The facts which constitute possession are in their nature capable of continuing presently true for a lifetime. Hence there has arisen an ambiguity of language which has led to much confusion of thought. We use the word "possession," indifferently, to signify the presence of all the facts needful to gain it, and also the condition of him who, although some of them no longer exist, is still protected as if they did. Consequently it has been only too easy to treat the cessation of the facts as the loss of the right, as some German writers very nearly do. /1/ But it no more follows, from the single circumstance that certain facts must concur in order to create the rights incident to possession, that they must continue in order to keep those rights alive, than it does, from the necessity of a consideration and a promise to create a right ex contractu, that the consideration and promise must continue moving between the parties until the moment of performance. When certain facts have once been made manifest which confer a right, there is no general ground on which the law need hold the right at an end except the manifestation of some fact inconsistent with its continuance, [237] the reasons for conferring the particular right have great weight in determining what facts shall be to be so. Cessation of the original physical relations to the object might be treated as such a fact; but it never has been, unless in times of more ungoverned violence than the present. On the same principle, it is only a question of tradition or policy whether a cessation of the power to reproduce the original physical relations shall affect the continuance of the rights. It does not stand on the same ground as a new possession adversely taken by another. We have adopted the Roman law as to animals ferae naturae, but the general tendency of our law is to favor appropriation. It abhors the absence of proprietary or possessory rights as a kind of vacuum. Accordingly, it has been expressly decided, where a man found logs afloat and moored them, but they again broke loose and floated away, and were found by another, that the first finder retained the rights which sprung from his having taken possession, and that he could maintain trover against the second finder, who refused to give them up. /1/ Suppose that a finder of a purse of gold has left it in his country-house, which is lonely and slightly barred, and he is a hundred miles away, in prison. The only person within twenty miles is a thoroughly equipped burglar at his front door, who has seen the purse through a window, and who intends forthwith to enter and take it. The finder's power to reproduce his former physical relation to the gold is rather limited, yet I believe that no one would say that his possession was at an end until the burglar, by an overt [238] act, had manifested his power and intent to exclude others from the purse. The reason for this is the same which has been put with regard to the power to exclude at the moment of gaining possession. The law deals, for the most part, with overt acts and facts which can be known by the senses. So long as the burglar has not taken the purse, he has not manifested his intent; and until he breaks through the barrier which measures the present possessor's power of excluding him, he has not manifested his power. It may be observed further, that, according to the tests adopted in this Lecture, the owner of the house has a present possession in the strictest sense, because, although he has not the power which Savigny says is necessary, he has the present intent and power to exclude others. It is conceivable that the common law should go so far as to deal with possession in the same way as a title, and should hold that, when it has once been acquired, rights are acquired which continue to prevail against all the world but one, until something has happened sufficient to divest ownership. The possession of rights, as it is called, has been a fighting-ground for centuries on the Continent. It is not uncommon for German writers to go so far as to maintain that there may be a true possession of obligations; this seeming to accord with a general view that possession and right are in theory coextensive terms; that the mastery of the will over an external object in general (be that object a thing or another will), when in accord with the general will, and consequently lawful, is called right, when merely de facto is possession. /1/ Bearing in mind what was [239] said on the question whether possession was a fact or right, it will be seen that such an antithesis between possession and right cannot be admitted as a legal distinction. The facts constituting possession generate rights as truly as do the facts which constitute ownership, although the rights a mere possessor are less extensive than those of an owner. Conversely, rights spring from certain facts supposed to be true of the person entitled to such rights. Where these facts are of such a nature that they can be made successively true of different persons, as in the case of the occupation of land, the corresponding rights may be successively enjoyed. But when the facts are past and gone, such as the giving of a consideration and the receiving of a promise, there can be no claim to the resulting rights set up by any one except the party of whom the facts were originally true--in the case supposed, the original contractee,--because no one but the original contractee can fill the situation from which they spring. It will probably be granted by English readers, that one of the essential constituent facts consists in a certain relation to a material object. But this object may be a slave, as well as a horse; /1/ and conceptions originated in this way may be extended by a survival to free services. It is noticeable that even Bruns, in the application of his theory, does not seem to go beyond cases of status and those where, in common language, land is bound for the services in question, as it is for rent. Free services being [240] so far treated like servile, even by our law, that the master has a right of property in them against all the world, it is only a question of degree where the line shall be drawn. It would be possible to hold that, as one might be in possession of a slave without title, so one might have all the rights of an owner in free services rendered without contract. Perhaps there is something of that sort to be seen when a parent recovers for the seduction of a daughter over twenty-one, although there is no actual contract of service. /1/ So, throughout the whole course of the canon law and in the early law of England, rents were regarded as so far a part of the realty as to be capable of possession and disseisin, and they could be recovered like land by all assize. /2/ But the most important case of the so-called possession of rights in our law, as in the Roman, occurs with regard to easements. An easement is capable of possession in a certain sense. A man may use land in a certain way, with the intent to exclude all others from using it in any way inconsistent with his own use, but no further. If this be true possession, however, it is a limited possession of land, not of a right, as others have shown. But where an easement has been actually created, whether by deed or prescription, although it is undoubtedly true that any possessor of the dominant estate would be protected in its enjoyment, it has not been so protected in the past on the ground that the easement was in itself an object of possession, but by the survival of precedents explained in a later [241] Lecture. Hence, to test the existence of a mere possession of this sort which the law will protect, we will take the case of a way used de facto for four years, but in which no easement has yet been acquired, and ask whether the possessor of the quasi dominant tenement would be protected in his use as against third persons. It is conceivable that he should be, but I believe that he would not. /2/ The chief objection to the doctrine seems to be, that there is almost a contradiction between the assertions that one man has a general power and intent to exclude the world from dealing with the land, and that another has the power to use it in a particular way, and to exclude the from interfering with that. The reconciliation of the two needs somewhat artificial reasoning. However, it should be borne in mind that the question in every case is not what was the actual power of the parties concerned, but what was their manifested power. If the latter stood thus balanced, the law might recognize a kind of split possession. But if it does not recognize it until a right is acquired, then the protection of a disseisor in the use of an easement must still be explained by a reference to the facts mentioned in the Lecture referred to. The consequences attached to possession are substantially those attached to ownership, subject to the question the continuance of possessory rights which I have touched upon above. Even a wrongful possessor of a [242] chattel may have full damages for its conversion by a stranger to the title, or a return of the specific thing. /1/ It has been supposed, to be sure, that a "special property" was necessary in order to maintain replevin /2/ or trover. /3/ But modern cases establish that possession is sufficient, and an examination of the sources of our law proves that special property did not mean anything more. It has been shown that the procedure for the recovery of chattels lost against one's will, described by Bracton, like its predecessor on the Continent, was based upon possession. Yet Bracton, in the very passage in which he expressly makes that statement, uses a phrase which, but for the explanation, would seem to import ownership,--"Poterit rem suam petere." /4/ The writs of later days used the same language, and when it was objected, as it frequently was, to a suit by a bailee for a taking of bona et catalla sua, that it should have been for bona in custodia sua existentia, it was always answered that those in the Chancery would not frame a writ in that form. /5/ The substance of the matter was, that goods in a man's possession were his (sua), within the meaning of the writ. But it was very natural to attempt a formal reconciliation between that formal word and the fact by saying that, although the plaintiff had not the general property in the [243] chattels, yet he had a property as against strangers, /1/ or a special property. This took place, and, curiously enough, two of the earliest instances in which I have found the latter phrase used are cases of a depositary, /2/ and a borrower. /3/ Brooke says that a wrongful taker "has title against all but the true owner." /4/ In this sense the special property was better described as a "possessory property," as it was, in deciding that, in an indictment for larceny, the property could be laid in the bailee who suffered the trespass. /5/ I have explained the inversion by which a bailee's right of action against third persons was supposed to stand on his responsibility over, although in truth it was the foundation of that responsibility, and arose simply from his possession. The step was short, from saying that bailees could sue because they were answerable over, /6/ to saying that they had the property as against strangers, or a special property, because they were answerable over, /7/ and that they could sue because they had a special property and were answerable over. /8/ And thus the notion that special property meant something more than possession, and was a requisite to maintaining an action, got into the law. The error was made easier by a different use of the phrase in a different connection. A bailee was in general liable for goods stolen from his custody, whether he had a lien or not. But the law was otherwise as to a [244] pledgee, if he had kept the pledge with his own goods, and the two were stolen together. /1/ This distinction was accounted for, at least in Lord Coke's time, by saying that the pledge was, in a sense, the pledgee's own, that he had a special property in it, and thus that the ordinary relation of bailment did not exist, or that the undertaking was only to keep as his own goods. /2/ The same expression was used in discussing the pledgee's right to assign the pledge, /3/ In this sense the term applied only to pledges, but its significance in a particular connection was easily carried over into the others in which it was used, with the result that the special property which was requisite to maintain the possessory actions was supposed to mean a qualified interest in the goods. With regard to the legal consequences of possession, it only remains to mention that the rules which have been laid down with regard to chattels also prevail with regard to land. For although the plaintiff in ejectment must recover on the strength of his own title as against a defendant in possession, it is now settled that prior possession is enough if the defendant stands on his possession alone Possession is of course sufficient for trespass.5 And although the early remedy by assize was restricted to those who had a technical seisin, this was for reasons which do not affect the general theory. Before closing I must say a word concerning ownership and kindred conceptions. Following the order of analysis [245] which has been pursued with regard to possession, the first question must be, What are the facts to which the rights called ownership are attached as a legal consequence? The most familiar mode of gaining ownership is by conveyance from the previous owner. But that presupposes ownership already existing, and the problem is to discover what calls it into being. One fact which has this effect is first possession. The captor of wild animals, or the taker of fish from the ocean, has not merely possession, but a title good against all the world. But the most common mode of getting an original and independent title is by certain proceedings, in court or out of it, adverse to all the world. At one extreme of these is the proceeding in rem of the admiralty, which conclusively disposes of the property in its power, and, when it sells or condemns it, does not deal with this or that man's title, but gives a new title paramount to all previous interests, whatsoever they may be. The other and more familiar case is prescription, where a public adverse holding for a certain time has a similar effect. A title by prescription is not a presumed conveyance from this or owner alone, it extinguishes all previous and inconsistent claims. The two coalesce in the ancient fine with proclamations where the combined effect of the judgment and the lapse of a year and a day was to bar claims. /1/ So rights analogous to those of ownership may be given by the legislature to persons of whom some other set of facts is true. For instance, a patentee, or one to whom the government has issued a certain instrument, and who in fact has made a patentable invention. [246] But what are the rights of ownership? They are substantially the same as those incident to possession. Within the limits prescribed by policy, the owner is allowed to exercise his natural powers over the subject-matter uninterfered with, and is more or less protected in excluding other people from such interference. The owner is allowed to exclude all, and is accountable to no one. The possessor is allowed to exclude all but one, and is accountable to no one but him. The great body of questions which have made the subject of property so large and important are questions of conveyancing, not necessarily or generally dependent on ownership as distinguished from possession. They are questions of the effect of not having an independent and original title, but of coming in under a title already in existence, or of the modes in which an original title can be cut up among those who come in under it. These questions will be dealt with and explained where they belong, in the Lectures on Successions. [247] LECTURE VII. -- CONTRACT.--I. HISTORY. The doctrine of contract has been so thoroughly remodelled to meet the needs of modern times, that there is less here than elsewhere for historical research. It has been so ably discussed that there is less room here elsewhere for essentially new analysis. But a short of the growth of modern doctrines, whether necessary or not, will at least be interesting, while an analysis of their main characteristics cannot be omitted, and may present some new features. It is popularly supposed that the oldest forms of contract known to our law are covenant and debt, and they are of early date, no doubt. But there are other contracts still in use which, although they have in some degree put on modern forms, at least suggest the question whether they were not of equally early appearance. One of these, the promissory oath, is no longer the foundation of any rights in private law. It is used, but as mainly as a solemnity connected with entering upon a public office. The judge swears that he will execute justice according to law, the juryman that he will find his verdict according to law and the evidence, the newly adopted citizen that he will bear true faith and allegiance to the government of his choice. But there is another contract which plays a more important part. It may, perhaps, sound paradoxical to mention [248] the contract of suretyship. Suretyship, nowadays, is only an accessory obligation, which presupposes a principal undertaking, and which, so far as the nature of the contract goes, is just like any other. But, as has been pointed out by Laferriere, /1/ and very likely by earlier writers, the surety of ancient law was the hostage, and the giving of hostages was by no means confined to international dealings. In the old metrical romance of Huon of Bordeaux, Huon, having killed the son of Charlemagne, is required by the Emperor to perform various seeming impossibilities as the price of forgiveness. Huon starts upon the task, leaving twelve of his knights as hostages. /2/ He returns successful, but at first the Emperor is made to believe that his orders have been disobeyed. Thereupon Charlemagne cries out, "I summon hither the pledges for Huon. I will hang them, and they shall have no ransom." /3/ So, when Huon is to fight a duel, by way of establishing the truth or falsehood of a charge against him, each party begins by producing some of his friends as hostages. When hostages are given for a duel which is to determine the truth or falsehood of an accusation, the transaction is very near to the giving of similar security in the trial of a cause in court. This was in fact the usual course of the Germanic procedure. It will be remembered that the earliest appearance of law was as a substitute for the private feuds between families or clans. But while a defendant who did not peaceably submit to the jurisdiction of the court might be put outside the protection of the law, so that any man might kill him at sight, there was at first [249] no way of securing the indemnity to which the plaintiff was entitled unless the defendant chose to give such security. /1/ English customs which have been preserved to us are somewhat more advanced, but one of the noticeable features in their procedure is the giving of security at every step. All lawyers will remember a trace of this in the fiction of John Doe and Richard Roe, the plaintiff's pledges to prosecute his action. But a more significant example is found in the rule repeated in many of the early laws, that a defendant accused of a wrong must either find security or go to prison. /2/ This security was the hostage of earlier days, and later, when the actions for punishment and for redress were separated from each other, became the bail of the criminal law. The liability was still conceived in the same way as when the bail actually put his own body into the power of the party secured. One of Charlemagne's additions to the Lex Salica speaks of a freeman who has committed himself to the power of another by way of surety. /3/ The very phrase is copied in the English laws of Henry I. /4/ We have seen what this meant in the story of Huon of Bordeaux. The Mirror of Justices /5/ says that King Canute used to judge the mainprisors according as the principals when their principals not in judgment, but that King Henry I. confined Canute's rule to mainprisors who were consenting to the fact. As late as the reign of Edward III., Shard, an English judge, after stating the law as it still is, that bail are a prisoner's [250] keepers, and shall be charged if he escapes, observes, that some say that the bail shall be hanged in his place. /1/ This was the law in the analogous case of a jailer. /2/ The old notion is to be traced in the form still given by modern writers for the undertaking of bail for felony. They are bound "body for body," /3/ and modern law-books find it necessary to state that this does not make them liable to the punishment of the principal offender if he does not appear, but only to a fine. /4/ The contract also differed from our modern ideas in the mode of execution. It was simply a solemn admission of liability in the presence of the officer authorized to take it. The signature of the bail was not necessary, /5/ and it was not requisite that the person bailed should bind himself as a party. /6/ But these peculiarities have been modified or done away with by statute, and I have dwelt upon the case, not so much as a special form of contract differing from all others as because the history of its origin shows one of the first appearances of contract in our law. It is to be traced to the gradual increase of faith in the honor of a hostage if the case calling for his surrender should arrive, and to the consequent relaxation of actual imprisonment. An illustration may be found in the parallel mode of dealing with the prisoner himself. His bail, to whom his body is supposed to be delivered, have a right to seize him at any time and anywhere, but he is allowed to go at large until [251] surrendered. It will be noticed that this form of contract, like debt as dealt with by the Roman law of the Twelve Tables, and for the same motive, although by a different process, looked to the body of the contracting party as the satisfaction. Debt is another and more popular candidate for the honors of priority. Since the time of Savigny, the first appearance of contract both in Roman and German law has often been attributed to the case of a sale by some accident remaining incomplete. The question does not seem to be of great philosophical significance. For to explain how mankind first learned to promise, we must go to metaphysics, and find out how it ever came to frame a future tense. The nature of the particular promise which was first enforced in a given system can hardly lead to any truth of general importance. But the history of the action of debt is instructive, although in a humbler way. It is necessary to know something about it in order to understand the enlightened rules which make up the law of contract at the present time. In Glanvill's treatise the action of debt is found already to be one of the well-known remedies. But the law of those days was still in a somewhat primitive state, and it will easily be imagined that a form of action which goes back as far as that was not founded on any very delicate discriminations. It was, as I shall try to show directly, simply the general form in which any money claim was collected, except unliquidated claims for damages by force, for which there was established the equally general remedy of trespass. It has been thought that the action was adopted from the then more civilized procedure of the Roman law. A [252] natural opinion, seeing that all the early English law-writers adopt their phraseology and classification from Rome. Still it seems much more probable that the action is of pure German descent. It has the features of the primitive procedure which is found upon the Continent, as described by Laband. /1/ The substance of the plaintiff's claim as set forth in the writ of debt is that the defendant owes him so much and wrongfully withholds it. It does not matter, for a claim framed like that, how the defendant's duty arises. It is not confined to contract. It is satisfied if there is a duty to pay on any ground. It states a mere conclusion of law, not the facts upon which that conclusion is based, and from which the liability arises. The old German complaint was, in like manner, "A owes me so much." It was characteristic of the German procedure that the defendant could meet that complaint by answering, in an equally general form, that he did not owe the plaintiff. The plaintiff had to do more than simply allege a debt, if he would prevent the defendant from escaping in that way. In England, if the plaintiff had not something to show for his debt, the defendant's denial turned him out of court; and even if he had, he was liable to be defeated by the defendant's swearing with some of his friends to back him that he owed nothing. The chief reason why debt was supplanted for centuries by a later remedy, assumpsit, was the survival of this relic of early days. Finally, in England as in Germany, debt for the detention of money was the twin brother of the action brought for wrongfully withholding any other kind of chattel. The gist of the complaint in either case was the same. It seems strange that this crude product of the infancy of law should have any importance for us at the present time. Yet whenever we trace a leading doctrine of substantive law far enough back, we are very likely to find some forgotten circumstance of procedure at its source. Illustrations of this truth have been given already. The action of debt and the other actions of contract will furnish others. Debt throws most light upon the doctrine of consideration. Our law does not enforce every promise which a man may make. Promises made as ninety-nine promises out of a hundred are, by word of mouth or simple writing, are not binding unless there is a consideration for them. That is, as it is commonly explained, unless the promisee has either conferred a benefit on the promisor, or incurred a detriment, as the inducement to the promise. It has been thought that this rule was borrowed from Roman law by the Chancery, and, after undergoing some modification there, passed into the common law. But this account of the matter is at least questionable. So far as the use of words goes, I am not aware that consideration is distinctly called cause before the reign of Elizabeth; in the earlier reports it always appears as quid pro quo. Its first appearance, so far as I know, is in Fleta's account of the action of debt, /1/ and although I am inclined to believe that Fleta's statement is not to be trusted, a careful consideration of the chronological order of the cases in the Year Books will show, I think, that the doctrine was fully developed in debt before any mention of it in equity can be found. One of the earliest [254] references to what a promisor was to have for his undertaking was in the action of assumpsit. /1/ But the doctrine certainly did not originate there. The first mention of consideration in connection with equity which I have seen is in the form of quid pro quo, /2/ and occurs after the requirement had been thoroughly established in debt. /3/ The single fact that a consideration was never required for contracts under seal, unless Fleta is to be trusted against the great weight of nearly contemporaneous evidence, goes far to show that the rule cannot have originated on grounds of policy as a rule of substantive law. And conversely, the coincidence of the doctrine with a peculiar mode of procedure points very strongly to the probability that the peculiar requirement and the peculiar procedure were connected. It will throw light on the question to put together a few undisputed facts, and to consider what consequences naturally followed. It will therefore be desirable to examine the action of debt a little further. But it is only fair to admit, at the outset, that I offer the explanation which follows with great hesitation, and, I think, with a full appreciation of the objections which might be urged. It was observed a moment ago, that, in order to recover against a defendant who denied his debt, the plaintiff had to show something for it; otherwise he was turned over to the limited jurisdiction of the spiritual tribunals. /4/ This requirement did not mean evidence in the modern sense. It meant simply that he must maintain his cause in one of the ways then recognized by law. These were three, the [255] duel, a writing, and witnesses. The duel need not be discussed, as it soon ceased to be used in debt, and has no bearing on what I have to say. Trial by writing and by witnesses, on the other hand, must both be carefully studied. It will be convenient to consider the latter first and to find out what these witnesses were. One thing we know at the start; they were not witnesses as we understand the term. They were not produced before a jury for examination and cross-examination, nor did their testimony depend for its effect on being believed by the court that heard it. Nowadays, a case is not decided by the evidence, but by a verdict, or a finding of facts, followed by a judgment. The oath of a witness has no effect unless it is believed. But in the time of Henry II. our trial by jury did not exist. When an oath was allowed to be sworn it had the same effect, whether it was believed or not. There was no provision for sifting it by a second body. In those cases where a trial by witnesses was possible, if the party called on to go forward could find a certain number of men who were willing to swear in a certain form, there was an end of the matter. Now this seems like a more primitive way of establishing a debt than the production of the defendant's written acknowledgement, and it is material to discover its origin. The cases in which this mode of trial was used appear from the early books and reports to have been almost wholly confined to claims arising out of a sale or loan. And the question at once occurs, whether we are not upon traces of an institution which was already ancient when Glanvill wrote. For centuries before the Conquest Anglo-Saxon law /1/ had required the election of a certain [256] number of official witnesses, two or three of whom were to be called in to every bargain of sale. The object for which these witnesses were established is not commonly supposed to have been the proof of debts. They go back to a time when theft and similar offences were the chief ground of litigation, and the purpose for which they were appointed was to afford a means of deciding whether a person charged with having stolen property had come by it rightfully or not. A defendant could clear himself of the felony by their oath that he had bought or received the thing openly in the way appointed by law. Having been present at the bargain, the witnesses were able to swear to what they had seen and heard, if any question arose between the parties. Accordingly, their use was not confined to disposing of a charge of felony. But that particular service identifies the transaction witnesses of the Saxon period. Now we know that the use of these witnesses did not at once disappear under Norman influence. They are found with their old function in the laws of William the Conqueror. /1/ The language of Glanvill seems to prove that they were still known under Henry II. He says that, if a purchaser cannot summon in the man from whom he bought, to warrant the property to him and defend the suit, (for if he does, the peril is shifted to the seller,) then if the purchaser has sufficient proof of his having lawfully bought the thing, de legittimo marcatu suo, it will clear him of felony. But if he have not sufficient suit, he will be in danger. /2/ This is the law of William over again. It follows that purchasers still used the transaction witnesses. But Glanvill also seems to admit the use of witness to establish debts. /1/ As the transaction witnesses were formerly available for this purpose, I see no reason to doubt that they still were, and that he is speaking of them here also. /2/ Moreover, for a long time after Henry II., whenever an action was brought for a debt of which there was no written evidence, the plaintiff, when asked what he had to show for it, always answered "good suit," and tendered his witnesses, who were sometimes examined by the court. /3/ I think it is not straining the evidence to infer that the "good suit" of the later reports was the descendant of the Saxon transaction witnesses, as it has been shown that Glanvill's secta was. /4/ Assuming this step in the argument to have been taken, it will be well to recall again for a moment the original nature of the witness oath. It was confined to facts within the witnesses' knowledge by sight and hearing. But as the purposes for which witnesses were provided only required their presence when property changed hands, the principal case in which they could be of service between the parties [258] to a bargain was when a debt was claimed by reason of the delivery of property. The purpose did not extend to agreements which were executory on both sides, because there no question of theft could arise. And Glanvill shows that in his time the King's Court did not enforce such agreements. /1/ Now, if the oath of the secta could only be used to establish a debt where the transaction witnesses could have sworn, it will be seen, readily enough, how an accident of procedure may have led to a most important rule of substantive law. The rule that witnesses could only swear to facts within their knowledge, coupled with the accident that these witnesses were not used in transactions which might create a debt, except for a particular fact, namely, the delivery of property, together with the further accident that this delivery was quid pro quo, was equivalent to the rule that, when a debt was proved by witnesses there must be quid pro quo. But these debts proved by witnesses, instead of by deed are what we call simple contract debts, and thus beginning with debt, and subsequently extending itself to other contracts, is established our peculiar and most important doctrine that every simple contract must have a consideration. This was never the law as to debts or contracts proved in the usual way by the defendant's seal, and the fact that it applied only to obligations which were formerly established by a procedure of limited use, [259] goes far to show that the connection with procedure was not accidental. The mode of proof soon changed, but as late as the reign of Queen Elizabeth we find a trace of this original connection. It is said, "But the common law requires that there should be a new cause (i. e. consideration), whereof the country may have intelligence or knowledge for the trial of it, if need be, so that it is necessary for the Public-weal." /1/ Lord Mansfield showed his intuition of the historical grounds of our law when he said, "I take it that the ancient notion about the want of consideration was for the sake of evidence only; for when it is reduced into writing, as in covenants, specialties, bonds, etc., there was no objection to the want of consideration." /2/ If it should be objected that the preceding argument is necessarily confined to debt, whereas the requirement of consideration applies equally to all simple contracts, the answer is, that in all probability the rule originated with debt, and spread from debt to other contracts. But, again, it may be asked whether there were no other contracts proved by witness except those which have been mentioned. Were there no contracts proved in that way to which the accidental consideration was wanting? To this also there is an easy answer. The contracts enforced by the civil courts, even as late as Henry II., were few and simple. The witness procedure was no doubt broad enough for all the contracts which were made in early times. Besides those of sale, loan, and the like, which have been mentioned, I find but two contractual [260] obligations. These were the warranties accompanying a sale and suretyship which was referred to at the beginning of the Lecture. Of the former, warranty of title was rather regarded as an obligation raised by the law out of the relation of buyer and seller than as a contract. Other express warranties were matters within the knowledge of the transaction witnesses, and were sworn to by them in Saxon times. /1/ But in the Norman period warranty is very little heard of, except with regard to land, and then it was decided by the duel. It so wholly disappeared, except where it was embodied in a deed, that it can have had no influence upon the law of consideration. I shall therefore assume, without more detail, that it does not bear upon the case. Then as to the pledge or surety. He no longer paid with his body, unless in very exceptional cases, but his liability was translated into money, and enforced in an action of debt. This time-honored contract, like the other debts of Glanvill's time, could be established by witness without a writing, /2/ and in this case there was not such a consideration, such a benefit to the promisor, as the law required when the doctrine was first enunciated. But this also is unimportant, because his liability on the oath of witness came to an end, as well as that of the warrantor, before the foundations were laid for the rule which I am seeking to explain. A writing soon came to be required, as will be seen in a moment. The result so far is, that the only action of contract in Glanvill's time was debt, that the only debts recovered [261] without writing were those which have been described, and that the only one of these for which there was not quid pro quo ceased to be recoverable in that way by the reign of Edward III. But great changes were beginning in the reign of Henry II. More various and complex contracts soon came to be enforced. It may be asked, Why was not the scope of the witness oath enlarged, or, if any better proof were forthcoming, why was not the secta done away with, and other oral testimony admitted? In any event, what can the law of Henry II.'s time have to do with consideration, which not heard of until centuries later? It is manifest that a witness oath, which disposes of a case by the simple fact that it is sworn, is not a satisfactory mode of proof. A written admission of debt produced in court, and sufficiently identified as issuing from the defendant, is obviously much better. The only weak point about a writing is the means of identifying it as the defendant's, and this difficulty disappeared as soon as the use of seals became common. This had more or less taken place in Glanvill's time, and then all that a party had to do was to produce the writing and satisfy the court by inspection that the impression on the wax fitted his opponent's seal. /1/ The oath of the secta could always be successfully met by wager of law, /2/ that is, by a counter oath the part of the defendant, with the same or double the number of fellow-swearers produced by the plaintiff. But a writing proved to be the defendant's could not be contradicted. [262] /1/ For if a man said he was bound, he was bound. There was no question of consideration, because there was as yet no such doctrine. He was equally bound if he acknowledged all obligation in any place having a record, such as the superior courts, by which his acknowledgment could be proved. Indeed, to this day some securities are taken simply by an oral admission before the clerk of a court noted by him in his papers. The advantage of the writing was not only that it furnished better proof in the old cases, but also that it made it possible to enforce obligations for which there would otherwise have been no proof at all. What has been said sufficiently explains the preference of proof by writing to proof by the old-fashioned witness oath. But there were other equally good reasons why the latter should not be extended beyond its ancient limits. The transaction witnesses were losing their statutory and official character. Already in Glanvill's time the usual modes of proving a debt were by the duel or by writing. /2/ A hundred years later Bracton shows that the secta had degenerated to the retainers and household of the party, and he says that their oath raises but a slight presumption. /3/ Moreover, a new mode of trial was growing up, which, although it was not made use of in these cases /4/ for a good while, must have tended to diminish the estimate set on the witness oath by contrast. This was the beginning of our trial by jury. It was at first an inquest of the neighbors [263] most likely to know about a disputed matter of fact. They spoke from their own knowledge, but they were selected by an officer of the court instead of by the interested party, and were intended to be impartial. /1/ Soon witnesses were summoned before them, not, as of old, to the case by their oath, but to aid the inquest to find a verdict by their testimony. With the advent of this enlightened procedure, the secta soon ceased to decide the case, and it may well be asked why it did not disappear and leave no traces. Taking into account the conservatism of the English law, and the fact that, before deeds came in, the only debts for which there had been a remedy were debts proved by the transaction witnesses, it would not have been a surprise to find the tender of suit persisting in those cases. But there was another reason still more imperative. The defence in debt where there was no deed was by wager of law. /2/ A section of Magna Charta was interpreted to prohibit a man's being put to his law on the plaintiff's own statement without good witness. /3/ Hence, the statute required witness--that is, the secta--in every case of debt where the plaintiff did not rely upon a writing. Thus it happened that suit continued to be tendered in those cases where it had been of old, /4/ and as the defendant, if he did not admit the debt in such cases, always waged his law, it was long before the inquest got much foothold. To establish a debt which arose merely by way of promise or acknowledgment, and for which there had formerly [264] been no mode of trial provided, you must have a writing, the new form of proof which introduced it into the law. The rule was laid down, "by parol the party is not obliged." /1/ But the old debts were not conceived of as raised by a promise. /2/ They were a "duty" springing from the plaintiff's receipt of property, a fact which could be seen and sworn to. In these cases the old law maintained and even extended itself a little by strict analogy. But the undertaking of a surety, in whatever form it was clothed, did not really arise out of any such fact. It had become of the same nature as other promises, and it was soon doubted whether it should not be proved by the same evidence. /3/ By the reign of Edward III., it was settled that a deed was necessary, /4/ except where the customs of particular cities had kept the old law in force. /5/ This reign may be taken as representing the time when the divisions and rules of procedure were established which have lasted until the present day. It is therefore worth while to repeat and sum up the condition of the law at that time. It was still necessary that the secta should be tendered in every action of debt for which no writing was produced. For this, as well as for the other reasons which have been mentioned, the sphere of such actions was not materially enlarged beyond those cases which had formerly been established by the witness-oath. As suretyship was no [265] longer one of these, they became strictly limited to cases in which the debt arose from the receipt of a quid pro quo. Moreover there was no other action of contract which could be maintained without a writing. New species of contracts were now enforced by an action of covenant, but there a deed was always necessary. At the same time the secta had shrunk to a form, although it was still argued that its function was more important in contract than elsewhere. It could no longer be examined before the court. /1/ It was a mere survival, and the transaction witness had ceased to be an institution. Hence, the necessity of tendering the witness oath did not fix the limit of debt upon simple contract except by tradition, and it is not surprising to find that the action was slightly extended by analogy from its scope in Glanvill's time. But debt remained substantially at the point which I have indicated, and no new action available for simple contracts was introduced for a century. In the mean time the inversion which I have explained took place, and what was an accident of procedure had become a doctrine of substantive law. The change was easy when the debts which could be enforced without deed all sprung from a benefit to the debtor. The influence of the Roman law, no doubt, aided in bringing about this result. It will be remembered that in the reign of Henry II. most simple contracts and debts for which there was not the evidence of deed or witness were left to be enforced by the ecclesiastical courts, so far as their jurisdiction extended. /2/ Perhaps it was this circumstance [266] which led Glanvill and his successors to apply the terminology of the civilians to common-law debts. But whether he borrowed it from the ecclesiastical courts, or went directly to the fountain-head, certain it is that Glanvill makes use of the classification and technical language of the Corpus Juris throughout his tenth book. There were certain special contracts in the Roman system called real, which bound the contractor either to return a certain thing put into his hands by the contractee, as in a case of lease or loan, or to deliver other articles of the same kind, as when grain, oil, or money was lent. This class did not correspond, except in the most superficial way, with the common-law debts. But Glanvill adopted the nomenclature, and later writers began to draw conclusions from it. The author of Fleta, a writer by no means always intelligent in following and adopting his predecessors' use of the Roman law, /1/ says that to raise a debt there must be not only a certain thing promised, but a certain thing promised in return. /2/ If Fleta had confined his statement to debts by simple contract, it might well have been suggested by the existing state of the law. But as he also required a writing and a seal, in addition to the matter given or promised in return, the doctrine laid down by him can hardly have prevailed at any time. It was probably nothing more than a slight vagary of reasoning based upon the Roman elements which he borrowed from Bracton. [267] It only remains to trace the gradual appearance of consideration in the decisions. A case of the reign of Edward III. /1/ seems to distinguish between a parol obligation founded on voluntary payments by the obligee and one founded on a payment at the obligor's request. It also speaks of the debt or "duty" in that case as arising by cause of payments. Somewhat similar language is used in the next reign. /2/ So, in the twelfth year of Henry IV., /3/ there is an approach to the thought: "If money is promised to a man for making a release, and he makes the release, he will have a good action of debt in the matter." In the next reign /4/ it was decided that, in such a case, the plaintiff could not recover without having executed the release, which is explained by the editor on the ground that ex nudo pacto non oritur actio. But the most important fact is, that from Edward I. to Henry VI. we find no case where a debt was recovered, unless a consideration had in fact been received. Another fact to be noticed is, that since Edward III. debts arising from a transaction without writing are said to arise from contract, as distinguished from debts arising from an obligation. /5/ Hence, when consideration was required as such, it was required in contracts not under seal, whether debts or not. Under Henry VI. quid pro quo became a necessity in all such contracts. In the third year of that reign /6/ it was objected to au action upon an [268] assumpsit for not building a mill, that it was not shown what the defendant was to have for doing it. In the thirty-sixth year of the same reign (A.D. 1459), the doctrine appears full grown, and is assumed to be familiar. /1/ The case turned upon a question which was debated for centuries before it was settled, whether debt would lie for a sum of money promised by the defendant to the plaintiff if he would marry the defendant's daughter. But whereas formerly the debate had been whether the promise was not so far incident to the marriage that it belonged exclusively to the jurisdiction of the spiritual courts, it now touched the purely mundane doubt whether the defendant had had quid pro quo. It will be remembered that the fact formerly sworn to by the transaction witnesses was a benefit to the defendant, namely, a delivery of the things sold or the money lent to him. Such cases, also, offer the most obvious form of consideration. The natural question is, what the promisor was to have for his promise. /2/ It is only by analysis that the supposed policy of the law is seen to be equally satisfied by a detriment incurred by the promisee. It therefore not unnaturally happened that the judges, when they first laid down the law that there must be quid pro quo, were slow to recognize a detriment to the contractee as satisfying the requirement which had been laid down. In the case which I have mentioned some of the judges were inclined to hold that getting rid of his daughter was a sufficient benefit to the defendant to make him a debtor for the money which he promised; and there was even some hint of the opinion, that marrying the lady was a [269] consideration, because it was a detriment to the promisee. /1/ But the other opinion prevailed, at least for a time, because the defendant had had nothing from the plaintiff to raise a debt. /2/ So it was held that a service rendered to a third person upon the defendant's request and promise of a reward would not be enough, /3/ although not without strong opinions to the contrary, and for a time the precedents were settled. It became established law that an action of debt would only lie upon a consideration actually received by and enuring to the benefit of the debtor. It was, however, no peculiarity of either the action or contract of debt which led to this view, but the imperfectly developed theory of consideration prevailing between the reigns of Henry VI. and Elizabeth. The theory the same in assumpsit, /4/ and in equity. /5/ Wherever consideration was mentioned, it was always as quid pro quo, as what the contractor was to have for his contract. Moreover, before consideration was ever heard of, debt was the time-honored remedy on every obligation to pay money enforced by law, except the liability to damages for a wrong. /6/ It has been shown already that a surety could be sued in debt until the time of Edward III. without a writing, yet a surety receives no benefit from the dealing with his principal. For instance, if a man sells corn to A, [270] and B says, "I will pay if A does not," the sale does B no good so far as appears by the terms of the bargain. For this reason, debt cannot now be maintained against a surety in such a case. It was not always so. It is not so to this day if there is an obligation under seal. In that case, it does not matter how the obligation arose, or whether there was any consideration for it or not. But a writing was a more general way of establishing a debt in Glanvill's time than witness, and it is absurd to determine the scope of the action by considering only a single class of debts enforced by it. Moreover, a writing for a long time was only another, although more conclusive, mode of proof. The foundation of the action was the same, however it was proved. This was a duty or "duity" /1/ to the plaintiff, in other words, that money was due him, no matter how, as any one may see by reading the earlier Year Books. Hence it was, that debt lay equally upon a judgment, /2/ which established such a duty by matter of record, or upon the defendant's admission recorded in like manner. /3/ To sum up, the action of debt has passed through three stages. At first, it was the only remedy to recover money due, except when the liability was simply to pay damages for a wrongful act. It was closely akin to--indeed it was but a branch of--the action for any form of personal property which the defendant was bound by contract or otherwise to hand over to the plaintiff. /4/ If there was a contract to pay money, the only question was how you [271] could prove it. Any such contract, which could be proved by any of the means known to early law, constituted a debt. There was no theory of consideration, and therefore, of course, no limit to either the action or the contract based upon the nature of the consideration received. The second stage was when the doctrine of consideration was introduced in its earlier form of a benefit to the promisor. This applied to all contracts not under seal while it prevailed, but it was established while debt was the only action for money payable by such contracts. The precedents are, for the most part, precedents in debt. The third stage was reached when a larger view was taken of consideration, and it was expressed in terms of detriment to the promisee. This change was a change in substantive law, and logically it should have been applied throughout. But it arose in another and later form of action, under circumstances peculiarly connected with that action, as will be explained hereafter. The result was that the new doctrine prevailed in the new action, and the old in the old, and that what was really the anomaly of inconsistent theories carried out side by side disguised itself in the form of a limitation upon the action of debt. That action did not remain, as formerly, the remedy for all binding contracts to pay money, but, so far as parol contracts were concerned, could only be used where the consideration was a benefit actually received by the promisor. With regard to obligations arising in any other way, it has remained unchanged. I must now devote a few words to the effect upon our law of the other mode of proof which I have mentioned. I mean charters. A charter was simply a writing. As few could write, most people had to authenticate a document [272] in some other way, for instance, by making their mark. This was, in fact, the universal practice in England until the introduction of Norman customs. /1/ With them seals came in. But as late as Henry II. they were said by the Chief Justice of England to belong properly only to kings and to very great men. /2/ I know no ground for thinking that an authentic charter had any less effect at that time when not under seal than when it was sealed. /3/ It was only evidence either way, and is called so in many of the early cases. /4/ It could be waived, and suit tendered in its place. /5/ Its conclusive effect was due to the satisfactory nature of the evidence, not to the seal. /6/ But when seals came into use they obviously made the evidence of the charter better, in so far as the seal was more difficult to forge than a stroke of the pen. Seals acquired such importance, that, for a time, a man was bound by his seal, although it was affixed without his consent. /7/ At last a seal came to be required, in order that a charter should have its ancient effect. /8/ A covenant or contract under seal was no longer a promise well proved; it was a promise of a distinct nature, for which a distinct form of action came to be provided. [273] /1/ I have shown how the requirement of consideration became a rule of substantive law, and also why it never had any foothold in the domain of covenants. The exception of covenants from the requirement became a rule of substantive law also. The man who had set his hand to a charter, from being bound because he had consented to be, and because there was a writing to prove it, /2/ was now held by force of the seal and by deed alone as distinguished from all other writings. And to maintain the integrity of an inadequate theory, a seal was said to a consideration. Nowadays, it is sometimes thought more philosophical to say that a covenant is a formal contract, which survives alongside of the ordinary consensual contract, just as happened in the Roman law. But this is not a very instructive way of putting it either. In one sense, everything is form which the law requires in order to make a promise binding over and above the mere expression of the promisor's will. Consideration is a form as much as a seal. The only difference is, that one form is of modern introduction, and has a foundation in good sense, or at least in with our common habits of thought, so that we do not notice it, whereas the other is a survival from an older condition of the law, and is less manifestly sensible, or less familiar. I may add, that, under the influence of the latter consideration, the law of covenants is breaking down. In many States it is held that a mere scroll or flourish of the pen is a sufficient seal. From this it is a short step to abolish the distinction between sealed and unsealed instruments altogether, and this has been done in some of the Western States. [274] While covenants survive in a somewhat weak old age, and debt has disappeared, leaving a vaguely disturbing influence behind it, the whole modern law of contract has grown up through the medium of the action of Assumpsit, which must now be explained. After the Norman conquest all ordinary actions were begun by a writ issuing from the king, and ordering the defendant to be summoned before the court to answer the plaintiff. These writs were issued as a matter of course, in the various well-known actions from which they took their names. There were writs of debt and of covenant; there were writs of trespass for forcible injuries to the plaintiff's person, or to property in his possession, and so on. But these writs were only issued for the actions which were known to the law, and without a writ the court had no authority to try a case. In the time of Edward I. there were but few of such actions. The cases in which you could recover money of another fell into a small number of groups, for each of which there was a particular form of suing and stating your claim. These forms had ceased to be adequate. Thus there were many cases which did not exactly fall within the definition of a trespass, but for which it was proper that a remedy should be furnished. In order to furnish a remedy, the first thing to be done was to furnish a writ. Accordingly, the famous statute of 13 Edward I., c. 24, authorized the office from which the old writs issued to frame new ones in cases similar in principle to those for which writs were found, and requiring like remedy, but not exactly falling within the scope of the writs already in use. Thus writs of trespass on the case began to make their appearance; that is, writs stating a ground of complaint [275] to a trespass, but not quite amounting to a trespass as it had been sued for in the older precedents. To take an instance which is substantially one of the earliest cases, suppose that a man left a horse with a blacksmith to be shod, and he negligently drove a nail into the horse's foot. It might be that the owner of the horse could not have one of the old writs, because the horse was not in his possession when the damage was done. A strict trespass property could only be committed against the person in possession of it. It could not be committed by one who was in possession himself. /1/ But as laming the horse was equally a wrong, whether the owner held the horse by the bridle or left it with the smith, and as the wrong was closely analogous to a trespass, although not one, the law gave the owner a writ of trespass on the case. /2/ An example like this raises no difficulty; it is as much an action of tort for a wrong as trespass itself. No contract was stated, and none was necessary on principle. But this does not belong to the class of cases to be considered, for the problem before us is to trace the origin of assumpsit, which is an action of contract. Assumpsit, however, began as an action of trespass on the case, and the thing to be discovered is how trespass on the case ever became available for a mere breach of agreement. It will be well to examine some of the earliest cases in which an undertaking (assumpsit) was alleged. The first reported in the books is of the reign of Edward III. /3/ The plaintiff alleged that the defendant undertook to carry the plaintiff's horse safely across the Humber, but surcharged [276] the boat, by reason of which the horse perished. It was objected that the action should have been either covenant for breach of the agreement, or else trespass. But it was answered that the defendant committed a wrongful act when he surcharged the boat, and the objection was overruled. This case again, although an undertaking was stated, hardly introduced a new principle. The force did not proceed directly from the defendant, to be sure, but it was brought to bear by the combination of his overloading and then pushing into the stream. The next case is of the same reign, and goes further. /1/ The writ set forth that the defendant undertook to cure the plaintiff's horse of sickness (manucepit equum praedicti W. de infirmirate), and did his work so negligently that the horse died. This differs from the case of laming the horse with a nail in two respects. It does not charge any forcible act, nor indeed any act at all, but a mere omission. On the other hand, it states an undertaking, which the other did not. The defendant at once objected that this was an action for a breach of an undertaking, and that the plaintiff should have brought covenant. The plaintiff replied, that he could not do that without a deed, and that the action was for negligently causing the death of the horse; that is, for a tort, not for a breach of contract. Then, said the defendant, you might have had trespass. But the plaintiff answered that by saying that the horse was not killed by force, but died per def. de sa cure; and upon this argument the writ was adjudged good, Thorpe, J. saying that he had seen a man indicted for killing a patient by want of care (default in curing), whom he had undertaken to cure. [277] Both these cases, it will be seen, were dealt with by the court as pure actions of tort, notwithstanding the allegation of an undertaking on the part of the defendant. But it will also be seen that they are successively more remote from an ordinary case of trespass. In the case last stated, especially, the destroying force did not proceed from the defendant in any sense. And thus we are confronted with the question, What possible analogy could have been found between a wrongful act producing harm, and a failure to act at all? I attempt to answer it, let me illustrate a little further by examples of somewhat later date. Suppose a man undertook to work upon another's house, and by his unskilfulness spoiled his employer's timbers; it would be like a trespass, although not one, and the employer would sue in trespass on the case. This was stated as clear law by one of the judges in the reign of Henry IV. /1/ But suppose that, instead of directly spoiling the materials, the carpenter had simply left a hole in the roof through which the rain had come in and done the damage. The analogy to the previous case is marked, but we are a step farther away from trespass, because the force does not come from the defendant. Yet in this instance also the judges thought that trespass on the case would lie. /2/ In the time of Henry IV. the action could not have been maintained for a simple refusal to build according to agreement; but it was suggested by the court, that, if the writ had mentioned "that the thing had been commenced and then by not done, it would have been otherwise." /3/ [278] I now recur to the question, What likeness could there have been between an omission and a trespass sufficient to warrant a writ of trespass on the case? In order to find an answer it is essential to notice that in all the earlier cases the omission occurred in the course of dealing with the plaintiff's person or property, and occasioned damage to the one or the other. In view of this fact, Thorpe's reference to indictments for killing a patient by want of care, and the later distinction between neglect before and after the task is commenced, are most pregnant. The former becomes still more suggestive when it is remembered that this is the first argument or analogy to be found upon the subject. The meaning of that analogy is plain. Although a man has a perfect right to stand by and see his neighbor's property destroyed, or, for the matter of that, to watch his neighbor perish for want of his help, yet if he once intermeddles he has no longer the same freedom. He cannot withdraw at will. To give a more specific example, if a surgeon from benevolence cuts the umbilical cord of a newly-born child, he cannot stop there and watch the patient bleed to death. It would be murder wilfully to allow death to come to pass in that way, as much as if the intention had been entertained at the time of cutting the cord. It would not matter whether the wickedness began with the act, or with the subsequent omission. The same reasoning applies to civil liability. A carpenter need not go to work upon another man's house at all, but if he accepts the other's confidence and intermeddles, he cannot stop at will and leave the roof open to the weather. So in the case of the farrier, when he had taken charge of the horse, he could not stop at the critical moment [279] and leave the consequences to fortune. So, still more clearly, when the ferryman undertook to carry a horse across the Humber, although the water drowned the horse, his remote acts of overloading his boat and pushing it into the stream in that condition occasioned the loss, and he was answerable for it. In the foregoing cases the duty was independent of contract, or at least was so regarded by the judges who decided them, and stood on the general rules applied to human conduct even by the criminal law. The immediate occasion of the damage complained of may have been a mere omission letting in the operation of natural forces. But if you connect it, as it was connected in fact, with the previous dealings, you have a course of action and conduct which, taken as a whole, has caused or occasioned the harm. The objection may be urged, to be sure, that there is a considerable step from holding a man liable for the consequences of his acts which he might have prevented, to making him answerable for not having interfered with the course of nature when he neither set it in motion nor opened the door for it to do harm, and that there is just that difference between making a hole in a roof and leaving it open, or cutting the cord and letting it bleed, on the one side, and the case of a farrier who receives a sick horse and omits proper precautions, on the other. /1/ There seem to be two answers to this. First, it is not clear that such a distinction was adverted to by the court which decided the case which I have mentioned. It was alleged that the defendant performed his cure so negligently that the horse died. It might not have occurred to [280] the judges that the defendant's conduct possibly went no further than the omission of a series of beneficial measures. It was probably assumed to have consisted of a combination of acts and neglects, which taken as a whole amounted to an improper dealing with the thing. In the next place, it is doubtful whether the distinction is a sound one on practical grounds. It may well be that, so long as one allows a trust to be reposed in him, he is bound to use such precautions as are known to him, although he has made no contract, and is at liberty to renounce the trust in any reasonable manner. This view derives some support from the issue on which the parties went to trial, which was that the defendant performed the cure as well as he knew how, without this, that the horse died for default of his care (cure?). /1/ But it cannot be denied that the allegation of an undertaking conveyed the idea of a promise, as well as that of an entering upon the business in hand. Indeed, the latter element is sufficiently conveyed, perhaps, without it. It may be asked, therefore, whether the promise did not count for something in raising a duty to act. So far as this involves the consequence that the action was in fact for the breach of a contract, the answer has been given already, and is sustained by too great a weight of authority to be doubted. /2/ To bind the defendant by a contract, an instrument under seal was essential. As has been shown, already, even the ancient sphere of debt had been limited by this requirement, and in the time of Edward III. a deed was necessary even to bind a surety. It was so [281] a fortiori to introduce a liability upon promises not enforced by the ancient law. Nevertheless, the suggestion was made at an early date, that an action on the case for damage by negligence, that is, by an omission of proper precautions, alleging an undertaking by way of inducement, was in fact an action of contract. Five years after the action for negligence in curing a horse, which has been stated, an action was brought /1/ in form against a surgeon, alleging that he undertook to cure the plaintiff's hand, and that by his negligence the hand was maimed. There was, however, this difference, that it was set forth that the plaintiff's hand had been wounded by one T.B. And hence it appeared that, however much the bad treatment may have aggravated matters, the maiming was properly attributable to T.B., and that the plaintiff had an action against him. This may have led the defendant to adopt the course he did, because he felt uncertain whether any action of tort would lie. He took issue on the undertaking, assuming that to be essential to the plaintiff's case, and then objected that the writ did not show the place of the undertaking, and hence was bad, because it did not show whence the inquest should be summoned to speak to that point. The writ was adjudged bad on that ground, which seems as if the court sanctioned the defendant's view. Indeed, one of the judges called it an action of covenant, and said that "of necessity it was maintainable without specialty, because for so small a matter a man cannot always have a clerk at hand to write a deed" (pur faire especially). At the same time the earlier cases which [282] have been mentioned were cited and relied on, and it is evident that the court was not prepared to go beyond them, or to hold that the action could be maintained on its merits apart from the technical objection. In another connection it seems to have considered the action from the point of view of trespass. /1/ Whatever questions this case may suggest, the class of actions which alleged an undertaking on the part of the defendant continued to be dealt with as actions of tort for a long time after Edward III. The liability was limited to damage to person or property arising after the defendant had entered upon the employment. And it was mainly through reasoning drawn from the law of tort that it was afterwards extended, as will be seen. At the beginning of the reign of Henry VI. it was probably still the law that the action would not lie for a simple failure to keep a promise. /2/ But it had been several times suggested, as has been shown, that it would be otherwise if the omission or neglect occurred in the course of performance, and the defendant's conduct had been followed by physical damage. /3/ This suggestion took its most striking form in the early years of Henry VI., when the case of the carpenter leaving a hole in the roof was put. /4/ When the courts had got as far as this, it was easy to go one step farther, and to allow the same effect to an omission at any stage, followed by similar damage. [283] What is the difference in principle, it was asked, a few years later, /1/ between the cases where it is admitted that the action will lie, and that of a smith who undertakes to shoe a horse and does not, by reason of which the horse goes lame,--or that of a lawyer, who undertakes to argue your case, and, after thus inducing you to rely upon him, neglects to be present, so that you lose it? It was said that in the earlier instances the duty was dependent on or accessory to the covenant, and that, if the action would lie on the accessory matter, it would lie on the principal. /2/ It was held on demurrer that an action would lie for not procuring certain releases which the defendant had undertaken to get. Five years later another case /3/ came up, which was very like that of the farrier in the reign of Edward III. It was alleged that the defendant undertook to cure the plaintiff's horse, and applied medicine so negligently that the horse died. In this, as in the earlier case, the issue was taken on the assumpsit. And now the difference between an omission and an act was clearly stated, the declaration was held not to mean necessarily anything more than an omission, and it was said that but for the undertaking the defendant would have owed no duty to act. Hence the allegation of the defendant's promise was material, and an issue could properly be taken on it. This decision distinctly separated from the mass of actions on the case a special class arising out of a promise as the source of the defendant's obligation, and it was only a matter of time for that class to become a new and distinct [284] action of contract. Had this change taken place at once, the doctrine of consideration, which was first definitely enunciated about the same time, would no doubt have been applied, and a quid pro quo would have been required for the undertaking. /1/ But the notion of tort was not at once abandoned. The law was laid down at the beginning of the reign of Henry VII., in accordance with the earlier decisions, and it was said that the action would not lie for a failure to keep a promise, but only for negligence after the defendant had entered upon his undertaking. /2/ So far as the action did not exceed the true limits of tort, it was immaterial whether there was a consideration for the undertaking or not. But when the mistake was made of supposing that all cases, whether proper torts or not, in which an assumpsit was alleged, were equally founded on the promise, one of two erroneous conclusions was naturally thought to follow. Either no assumpsit needed any quid pro quo, /3/ as there was clearly none in the older precedents, (they being cases of pure tort,) or else those precedents were wrong, and a quid pro quo should be alleged in every case. It was long recognized with more or less understanding of the true limit, that, in cases where the gist of the action was negligent damage to property, a consideration was not necessary. /4/ And there are some traces of the notion that it was always superfluous, as late as Charles I. [285] In a case of that reign, the defendant retained an attorney to act in a suit for a third person, and promised to pay him all his fees and expenses. The attorney rendered the service, and then brought debt. It was objected that debt did not lie, because there was no contract between the parties, and the defendant had not any quid pro quo. The court adopted the argument, and said that there was no contract or consideration to ground this action, but that the plaintiff might have sued in assumpsit. /1/ It was, perhaps, the lingering of this idea, and the often repeated notion that an assumpsit was not a contract, /2/ to which was attributable a more enlarged theory of consideration than prevailed in debt. It was settled that assumpsit would lie for a mere omission or nonfeasance. The cases which have been mentioned of the reign of Henry VI. were followed by others in the latter years of Henry VII., /3/ and it was never again doubted. An action for such a cause was clearly for a breach of promise, as had been recognized from the time of Edward III. If so, a consideration was necessary. /4/ Notwithstanding occasional vagaries, that also had been settled or taken for granted in many cases of Queen Elizabeth's time. But the bastard origin of the action which gave rise to the doubt how far any consideration at all was necessary, made it possible to hold considerations sufficient which had been in debt. Another circumstance may not have been without its influence. It would seem that, in the period when assumpsit [286] was just growing into its full proportions, there was some little inclination to identify consideration with the Roman causa, taken in its broadest sense. The word "cause" was used for consideration in the early years of Elizabeth, with reference to a covenant to stand seized to uses. /1/ It was used in the same sense in the action of assumpsit. /2/ In the last cited report, although the principal case only laid down a doctrine that would be followed to-day, there was also stated an anonymous case which was interpreted to mean that an executed consideration furnished upon request, but without any promise of any kind, would support a subsequent promise to pay for it. /3/ Starting from this authority and the word "cause," the conclusion was soon reached that there was a great difference between a contract and an assumpsit; and that, whereas in contracts "everything which is requisite ought to concur and meet together, viz. the consideration of the one side, and the sale or the promise on the other side,... to maintain an action upon an assumpsit, the same is not requisite, for it is sufficient if there be a moving cause or consideration precedent; for which cause or consideration the promise was made." /4/ Thus, where the defendant retained the plaintiff to be [287] to his aunt at ten shillings a week, it was held that assumpsit would lie, because the service, though not beneficial to the defendant, was a charge or detriment to the plaintiff. /1/ The old questions were reargued, and views which were very near prevailing in debt under Henry VI., prevailed in assumpsit under Elizabeth and James. A surety could be sued in assumpsit, although he had ceased to be liable in debt. /2/ There was the same remedy on a promise in consideration that the plaintiff would marry the defendant's daughter. /3/ The illusion that assumpsit thus extended did not mean contract, could not be kept up. In view of this admission and of the ancient precedents, the law oscillated for a time in the direction of reward as the true essence of consideration. /4/ But the other view prevailed, and thus, in fact, made a change in the substantive law. A simple contract, to be recognized as binding by the courts of Henry VI., must have been based upon a benefit to the debtor; now a promise might be enforced in consideration of a detriment to the promisee. But in the true archaic spirit the doctrine was not separated or distinguished from the remedy which introduced it, and thus debt in modern times has presented the altered appearance of a duty limited to cases where the consideration was of a special sort. The later fortunes of assumpsit can be briefly told. It introduced bilateral contracts, because a promise was a [288] detriment, and therefore a sufficient consideration for another promise. It supplanted debt, because the existence of the duty to pay was sufficient consideration for a promise to pay, or rather because, before a consideration was required, and as soon as assumpsit would lie for a nonfeasance, this action was used to avoid the defendant's wager of law. It vastly extended the number of actionable contracts, which had formerly been confined to debts and covenants, whereas nearly any promise could be sued in assumpsit; and it introduced a theory which has had great influence on modern law,--that all the liabilities of a bailee are founded on contract. /1/ Whether the prominence which was thus given to contract as the foundation of legal rights and duties had anything to do with the similar prominence which it soon acquired in political speculation, it is beyond my province to inquire. [289] LECTURE VIII. -- CONTRACT. II. ELEMENTS. THE general method to be pursued in the analysis of contract is the same as that already explained with regard to possession. Wherever the law gives special rights to one, or imposes special burdens on another, it does so on the ground that certain special facts are true of those individuals. In all such cases, therefore, there is a twofold task. First, to determine what are the facts to which the special consequences are attached; second, to ascertain the consequences. The first is the main field of legal argument. With regard to contracts the facts are not always the same. They may be that a certain person has signed, sealed, and delivered a writing of a certain purport. They may be that he has made an oral promise, and that the promisee has furnished him a consideration. The common element of all contracts might be said to be a promise, although even a promise was not necessary to a liability in debt as formerly understood. But as it will not be possible to discuss covenants further, and as consideration formed the main topic of the last Lecture, I will take up that first. Furthermore, as there is an historical difference between consideration in debt and in assumpsit, I shall confine myself to the latter, which is the later and more philosophical form. It is said that any benefit conferred by the promisee on the promisor, or any detriment incurred by the promisee, [290] may be a consideration. It is also thought that every consideration may be reduced to a case of the latter sort, using the word "detriment" in a somewhat broad sense. To illustrate the general doctrine, suppose that a man is desirous of having a cask of brandy carried from Boston to Cambridge, and that a truckman, either out of kindness or from some other motive, says that he will carry it, and it is delivered to him accordingly. If he carelessly staves in the cask, there would perhaps be no need to allege that he undertook to carry it, and on principle, and according to the older cases, if an undertaking was alleged, no consideration for the assumpsit need be stated. /1/ The ground of complaint in that case would be a wrong, irrespective of contract. But if the complaint was that he did not carry it as agreed, the plaintiff's difficulty would be that the truckman was not bound to do so unless there was a consideration for his promise. Suppose, therefore, that it was alleged that he promised to do so in consideration of the delivery to him. Would this be a sufficient consideration? The oldest cases, going on the notion of benefit to the promisor, said that it could not be, for it was a trouble, not a benefit. /2/ Then take it from the side of detriment. The delivery is a necessary condition to the promisor's doing the kindness, and if he does it, the delivery, so far from being a detriment to the promisee, is a clear benefit to him. But this argument is a fallacy. Clearly the delivery would be sufficient consideration to enable the owner to declare in assumpsit for the breach of those duties which [291] arose, irrespective of contract, from the defendant's having undertaken to deal with the thing. /1/ It would be a sufficient consideration for any promise not involving a dealing with the thing for its performance, for instance, to pay a thousand dollars. /2/ And the law has not pronounced the consideration good or bad according to the nature of the promise founded upon it. The delivery is a sufficient consideration for any promise. /3/ The argument on the other side leaves out of sight the point of time at which the sufficiency of the consideration is to be determined. This is the moment when the consideration is furnished. At that moment the delivery of the cask is a detriment in the strictest sense. The owner of the cask has given up a present control over it, which he has a right to keep, and he has got in return, not a performance for which a delivery was necessary, but a mere promise of performance. The performance is still future. /4/ But it will be seen that, although the delivery may be a consideration, it will not necessarily be one. A promise to carry might be made and accepted on the understanding that it was mere matter of favor, without consideration, and not legally binding. In that case the detriment of delivery would be incurred by the promisee as before, but obviously it would be incurred for the sole purpose of enabling the promisor to carry as agreed. [292] It appears to me that it has not always been sufficiently borne in mind that the same thing may be a consideration or not, as it is dealt with by the parties. The popular explanation of Coggs v. Bernard is, that the delivery was a consideration for a promise to carry the casks safely. I have given what I believe to be the true explanation, and that which I think Lord Holt had in view, in the fifth Lecture. /1/ But whether that which I have offered be true or not, a serious objection to the one which is commonly accepted is that the declaration does not allege that the delivery was the consideration. The same caution should be observed in construing the terms of an agreement. It is hard to see the propriety of erecting any detriment which an instrument may disclose or provide for, into a consideration, unless the parties have dealt with it on that footing. In many cases a promisee may incur a detriment without thereby furnishing a consideration. The detriment may be nothing but a condition precedent to performance of the promise, as where a man promises another to pay him five hundred dollars if he breaks his leg. /2/ The courts, however, have gone far towards obliterating this distinction. Acts which by a fair interpretation of language would seem to have been contemplated as only the compliance with a condition, have been treated as the consideration of the promise. /3/ And so have counter promises in an agreement which expressly stated other matters as the consideration. /4/ So it should be mentioned, subject [293] to the question whether there may not be a special explanation for the doctrine, that it is said that an assignment of a leasehold cannot be voluntary under the statute of 27 Elizabeth, c. 4, because the assignee comes into the obligations of the tenant. /1/ Yet the assignee's incurring this detriment may not be contemplated as the inducement of the assignment, and in many cases only amounts to a deduction from the benefit conferred, as a right of way would be, especially if the only obligation is to pay rent, which issues out of the land in theory of law. But although the courts may have sometimes gone a little far in their anxiety to sustain agreements, there can be no doubt of the Principle which I have laid down, that the same thing may be a consideration or not, as it is dealt with by the parties. This raises the question how a thing must be dealt with, in order to make it a consideration. It is said that consideration must not be confounded with motive. It is true that it must not be confounded with what may be the prevailing or chief motive in actual fact. A man may promise to paint a picture for five hundred dollars, while his chief motive may be a desire for fame. A consideration may be given and accepted, in fact, solely for the purpose of making a promise binding. But, nevertheless, it is the essence of a consideration, that, by the terms of the agreement, it is given and accepted as the motive or inducement of the promise. Conversely, the promise must be made and accepted as the conventional motive or inducement for furnishing the consideration. The root of the whole matter is the relation of reciprocal [294] conventional inducement, each for the other, between consideration and promise. A good example of the former branch of the proposition is to be found in a Massachusetts case. The plaintiff refused to let certain wood be removed from his land by one who had made an oral bargain and given his note for it, unless he received additional security. The purchaser and the plaintiff accordingly went to the defendant, and the defendant put his name upon the note. The plaintiff thereupon let the purchaser carry off the wood. But, according to the testimony, the defendant signed without knowing that the plaintiff was to alter his position in any way on the faith of the signature, and it was held that, if that story was believed, there was no consideration. /1/ An illustration of the other half of the rule is to be found in those cases where a reward is offered for doing something, which is afterwards done by a person acting in ignorance of the offer. In such a case the reward cannot be claimed, because the alleged consideration has not been furnished on the faith of the offer. The tendered promise has not induced the furnishing of the consideration. The promise cannot be set up as a conventional motive when it was not known until after the alleged consideration was performed. /2/ Both sides of the relation between consideration and promise, and the conventional nature of that relation, may be illustrated by the case of the cask. Suppose that the [295] truckman is willing to carry the cask, and the owner to let him carry it, without any bargain, and that each knows the other's state of mind; but that the truckman, seeing his own advantage in the matter, says to the owner, "In consideration of your delivering me the cask, and letting me carry it, I promise to carry it," and that the owner thereupon delivers it. I suppose that the promise would be binding. The promise is offered in terms as the inducement for the delivery, and the delivery is made in terms as the inducement for the promise. It may be very probable that the delivery would have been made without a promise, and that the promise would have been made in gratuitous form if it had not been accepted upon consideration; but this is only a guess after all. The delivery need not have been made unless the owner chose, and having been made as the term of a bargain, the promisor cannot set up what might have happened to destroy the effect of what did happen. It would seem therefore that the same transaction in substance and spirit might be voluntary or obligatory, according to the form of words which the parties chose to employ for the purpose of affecting the legal consequences. If the foregoing principles be accepted, they will be seen to explain a doctrine which has given the courts some trouble to establish. I mean the doctrine that an executed consideration will not sustain a subsequent promise. It has been said, to be sure, that such a consideration was sufficient if preceded by a request. But the objections to the view are plain. If the request was of such a nature, and so put, as reasonably to imply that the other person was to have a reward, there was an express promise, although not put in words, and that promise was made at [296] the same time the consideration was given, and not afterwards. If, on the other hand, the words did not warrant the understanding that the service was to be paid for, the service was a gift, and a past gift can no more be a consideration than any other act of the promisee not induced by the promise. The source of the error can be traced partially, at least, in history. Some suggestions touching the matter were made in the last Lecture. A few words should be added here. In the old cases of debt, where there was some question whether the plaintiff had showed enough to maintain his action, a "contract precedent" was spoken of several times as raising the duty. Thus, where a man had granted that he would be bound in one hundred shillings to pay his servant on a certain day for his services, and for payments made by the servant on his account, it was argued that there was no contract precedent, and that by parol the party is not obliged; and, further, that, so far as appeared, the payments were made by the servant out of his own head and at no request, from which no duty could commence. /1/ So when debt was brought on a deed to pay the plaintiff ten marks, if he would take the defendant's daughter to wife, and it was objected that the action should have been covenant, it was answered that the plaintiff had a contract precedent which gave him debt. /2/ The first case in assumpsit /3/ only meant to adopt this long familiar thought. A man went bail for his friend's servant, who had been arrested. Afterwards the master [297] promised to indemnify the bail, and on his failure to do so was sued by him in assumpsit. It was held that there was no consideration wherefore the defendant should be charged unless the master had first promised to indemnify the plaintiff before the servant was bailed; "for the master did never make request to the plaintiff for his servant to do so much, but he did it of his own head." This is perfectly plain sailing, and means no more than the case in the Year Books. The report, however, also states a case in which it was held that a subsequent promise, in consideration that the plaintiff at the special instance of the defendant had married the defendant's cousin, was binding, and that the marriage was "good cause... because [it] ensued the request of the defendant." Whether this was intended to establish a general principle, or was decided with reference to the peculiar consideration of marriage, /1/ it was soon interpreted in the broader sense, as was shown in the last Lecture. It was several times adjudged that a past and executed matter was a sufficient consideration for a promise at a later day, if only the matter relied on had been done or furnished at the request of the promisor. /2/ It is now time to analyze the nature of a promise, which is the second and most conspicuous element in a simple contract. The Indian Contract Act, 1872, Section 2,8 says:-- "(a.) When one person signifies to another his willingness [298] to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal: "(b.) When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal when accepted becomes a promise." According to this definition the scope of promises is confined to conduct on the part of the promisor. If this only meant that the promisor alone must bear the legal burden which his promise may create, it would be true. But this is not the meaning. For the definition is of a promise, not of a legally binding promise. We are not seeking for the legal effects of a contract, but for the possible contents of a promise which the law may or may not enforce. We must therefore only consider the question what can possibly be promised in a legal sense, not what will be the secondary consequence of a promise binding, but not performed. An assurance that it shall rain to-morrow, /1/ or that a third person shall paint a picture, may as well be a promise as one that the promisee shall receive from some source one hundred bales of cotton, or that the promisor will pay the promisee one hundred dollars. What is the difference in the cases? It is only in the degree of power possessed by the promisor over the event. He has none in the first case. He has equally little legal authority to make a man paint a picture, although he may have larger means of persuasion. He probably will be able to make sure that the promisee has the cotton. Being a rich man, he is certain [299] to be able to pay the one hundred dollars, except in the event of some most improbable accident. But the law does not inquire, as a general thing, how far the accomplishment of an assurance touching the future is within the power of the promisor. In the moral world it may be that the obligation of a promise is confined to what lies within reach of the will of the promisor (except so far as the limit is unknown on one side, and misrepresented on the other). But unless some consideration of public policy intervenes, I take it that a man may bind himself at law that any future event shall happen. He can therefore promise it in a legal sense. It may be said that when a man covenants that it shall rain to-morrow, or that A shall paint a picture, he only says, in a short form, I will pay if it does not rain, or if A does not paint a picture. But that is not necessarily so. A promise could easily be framed which would be broken by the happening of fair weather, or by A not painting. A promise, then, is simply an accepted assurance that a certain event or state of things shall come to pass. But if this be true, it has more important bearings than simply to enlarge the definition of the word promise. It concerns the theory of contract. The consequences of a binding promise at common law are not affected by the degree of power which the promisor possesses over the promised event. If the promised event does not come to pass, the plaintiff's property is sold to satisfy the damages, within certain limits, which the promisee has suffered by the failure. The consequences are the same in kind whether the promise is that it shall rain, or that another man shall paint a picture, or that the promisor will deliver a bale of cotton. [300] If the legal consequence is the same in all cases, it seems proper that all contracts should be considered from the same legal point of view. In the case of a binding promise that it shall rain to-morrow, the immediate legal effect of what the promisor does is, that he takes the risk of the event, within certain defined limits, as between himself and the promisee. He does no more when he promises to deliver a bale of cotton. If it be proper to state the common-law meaning of promise and contract in this way, it has the advantage of freeing the subject from the superfluous theory that contract is a qualified subjection of one will to another, a kind of limited slavery. It might be so regarded if the law compelled men to perform their contracts, or if it allowed promisees to exercise such compulsion. If, when a man promised to labor for another, the law made him do it, his relation to his promisee might be called a servitude ad hoc with some truth. But that is what the law never does. It never interferes until a promise has been broken, and therefore cannot possibly be performed according to its tenor. It is true that in some instances equity does what is called compelling specific performance. But, in the first place, I am speaking of the common law, and, in the next, this only means that equity compels the performance of certain elements of the total promise which are still capable of performance. For instance, take a promise to convey land within a certain time, a court of equity is not in the habit of interfering until the time has gone by, so that the promise cannot be performed as made. But if the conveyance is more important than the time, and the promisee prefers to have it late rather than never, the law may compel the performance of [301] that. Not literally compel even in that case, however, but put the promisor in prison unless he will convey. This remedy is an exceptional one. The only universal consequence of a legally binding promise is, that the law makes the promisor pay damages if the promised event does not come to pass. In every case it leaves him free from interference until the time for fulfilment has gone by, and therefore free to break his contract if he chooses. A more practical advantage in looking at a contract as the taking of a risk is to be found in the light which it throws upon the measure of damages. If a breach of contract were regarded in the same light as a tort, it would seem that if, in the course of performance of the contract the promisor should be notified of any particular consequence which would result from its not being performed, he should be held liable for that consequence in the event of non-performance. Such a suggestion has been made. /1/ But it has not been accepted as the law. On the contrary, according to the opinion of a very able judge, which seems to be generally followed, notice, even at the time of making the contract, of special circumstances out of which special damages would arise in case of breach, is not sufficient unless the assumption of that risk is to be taken as having fairly entered into the contract. /2/ If a carrier should undertake to carry the machinery of a saw-mill from Liverpool to Vancouver's Island, and should fail [302] to do so, he probably would not be held liable for the rate of hire of such machinery during the necessary delay, although he might know that it could not be replaced without sending to England, unless he was fairly understood to accept "the contract with the special condition attached to it." /1/ It is true that, when people make contracts, they usually contemplate the performance rather than the breach. The express language used does not generally go further than to define what will happen if the contract is fulfilled. A statutory requirement of a memorandum in writing would be satisfied by a written statement of the promise as made, because to require more would be to run counter to the ordinary habits of mankind, as well as because the statement that the effect of a contract is the assumption of the risk of a future event does not mean that there is a second subsidiary promise to assume that risk, but that the assumption follows as a consequence directly enforced by the law, without the promisor's co-operation. So parol evidence would be admissible, no doubt, to enlarge or diminish the extent of the liability assumed for nonperformance, where it would be inadmissible to affect the scope of the promise. But these concessions do not affect the view here taken. As the relation of contractor and contractee is voluntary, the consequences attaching to the relation must be voluntary. What the event contemplated by the promise is, or in other words what will amount to a breach of contract, is a matter of interpretation and construction. What consequences of the breach are assumed is more remotely, in like manner, a matter of construction, having regard [303] to the circumstances under which the contract is made. Knowledge of what is dependent upon performance is one of those circumstances. It is not necessarily conclusive, but it may have the effect of enlarging the risk assumed. The very office of construction is to work out, from what is expressly said and done, what would have been said with regard to events not definitely before the minds of the parties, if those events had been considered. The price paid in mercantile contracts generally excludes the construction that exceptional risks were intended to be assumed. The foregoing analysis is believed to show that the result which has been reached by the courts on grounds of practical good sense, falls in with the true theory of contract under the common law. The discussion of the nature of a promise has led me to analyze contract and the consequences of contract somewhat in advance of their place. I must say a word more concerning the facts which constitute a promise. It is laid down, with theoretical truth, that, besides the assurance or offer on the one side, there must be an acceptance on the other. But I find it hard to think of a case where a simple contract fails to be made, which could not be accounted for on other grounds, generally by the want of relation between assurance or offer and consideration as reciprocal inducements each of the other. Acceptance of an offer usually follows by mere implication from the furnishing of the consideration; and inasmuch as by our law an accepted offer, or promise, until the consideration is furnished, stands on no different footing from an offer not yet accepted, each being subject to revocation until that time, and each continuing [304] until then unless it has expired or has been revoked, the question of acceptance is rarely of practical importance. Assuming that the general nature of consideration and promise is understood, some questions peculiar to bilateral contracts remain to be considered. These concern the sufficiency of the consideration and the moment when the contract is made. A promise may be a consideration for a promise, although not every promise for every other. It may be doubted whether a promise to make a gift of one hundred dollars would be supported by a promise to accept it. But in a case of mutual promises respectively to transfer and to accept unpaid shares in a railway company, it has been held that a binding contract was made. Here one party agrees to part with something which may prove valuable, and the other to assume a liability which may prove onerous. /1/ But now suppose that there is no element of uncertainty except in the minds of the parties. Take, for instance, a wager on a past horse-race. It has been thought that this would amount to an absolute promise on one side, and no promise at all on the other. /2/ But this does not seem to me sound. Contracts are dealings between men, by which they make arrangements for the future. In making such arrangements the important thing is, not what is objectively true, but what the parties know. Any present fact which is unknown to the parties is just as uncertain for the purposes of making an arrangement at this moment, as any future fact. It is therefore a detriment to undertake to be ready to pay if the event turns out not [305] to have been as expected. This seems to be the true explanation why forbearance to sue upon a claim believed the plaintiff to be good is a sufficient consideration, although the claim was bad in fact, and known by the defendant to be bad. /1/ Were this view unsound, it is hard to see how wagers on any future event, except a miracle, could be sustained. For if the happening or not happening of the event is subject to the law of causation, the only uncertainty about it is in our foresight, not in its happening. The question when a contract is made arises for the most part with regard to bilateral contracts by letter, the doubt being whether the contract is complete at the moment when the return promise is put into the post, or at the moment when it is received. If convenience preponderates in favor of either view, that is a sufficient reason for its adoption. So far as merely logical grounds go, the most ingenious argument in favor of the later moment is Professor Langdell's. According to him the conclusion follows from the fact that the consideration which makes the offer binding is itself a promise. Every promise, he says, is an offer before it is a promise, and the essence of an offer is that it should be communicated. /2/ But this reasoning seems unsound. When, as in the case supposed, the consideration for the return promise has been put into the power of the offeree and the return promise has been accepted in advance, there is not an instant, either in time or logic, when the return promise is an offer. It is a promise and a term of a binding contract as soon as it is anything. An offer is a revocable and unaccepted communication of willingness to promise. [306] When an offer of a certain bilateral contract has been made, the same contract cannot be offered by the other side. The so-called offer would neither be revocable nor unaccepted. It would complete the contract as soon as made. If it be said that it is of the essence of a promise to be communicated, whether it goes through the stage of offer or not, meaning by communicated brought to the actual knowledge of the promisee, the law is believed to be otherwise. A covenant is binding when it is delivered and accepted, whether it is read or not. On the same principle, it is believed that, whenever the obligation is to be entered into by a tangible sign, as, in the case supposed, by letter containing the return promise, and the consideration for and assent to the promise are already given, the only question is when the tangible sign is sufficiently put into the power of the promisee. I cannot believe that, if the letter had been delivered to the promisee and was then snatched from his hands before he had read it, there would be no contract. /1/ If I am right, it appears of little importance whether the post-office be regarded as agent or bailee for the offerer, or as a mere box to which he has access. The offeree, when he drops the letter containing the counter-promise into the letter-box, does an overt act, which by general understanding renounces control over the letter, and puts it into a third hand for the benefit of the offerer, with liberty to the latter at any moment thereafter to take it. The principles governing revocation are wholly different. One to whom an offer is made has a right to assume that it remains open according to its terms until he has actual [307] notice to the contrary. The effect of the communication must be destroyed by a counter communication. But the making of a contract does not depend on the state of the parties' minds, it depends on their overt acts. When the sign of the counter promise is a tangible object, the contract is completed when the dominion over that object changes. [308] LECTURE IX. -- CONTRACT.--III. VOID AND VOIDABLE. THE elements of fact necessary to call a contract into existence, and the legal consequences of a contract when formed, have been discussed. It remains to consider successively the cases in which a contract is said to be void, and those in which it is said to be voidable,--in which, that is, a contract fails to be made when it seems to have been, or, having been made, can be rescinded by one side or the other, and treated as if it had never been. I take up the former class of cases first. When a contract fails to be made, although the usual forms have been gone through with, the ground of failure is commonly said to be mistake, misrepresentation, or fraud. But I shall try to show that these are merely dramatic circumstances, and that the true ground is the absence of one or more of the primary elements, which have been shown, or are seen at once, to be necessary to the existence of a contract. If a man goes through the form of making a contract with A through B as A's agent, and B is not in fact the agent of A, there is no contract, because there is only one party. The promise offered to A has not been accepted by him, and no consideration has moved from him. In such a case, although there is generally mistake on one side and fraud on the other, it is very clear that no special [309] doctrine need be resorted to, because the primary elements of a contract explained in the last Lecture are not yet present. Take next a different case. The defendant agreed to buy, and the plaintiff agreed to sell, a cargo of cotton, "to arrive ex Peerless from Bombay." There were two such vessels sailing from Bombay, one in October, the other in December. The plaintiff meant the latter, the defendant the former. It was held that the defendant was not bound to accept the cotton. /1/ It is commonly said that such a contract is void, because of mutual mistake as to the subject-matter, and because therefore the parties did not consent to the same thing. But this way of putting it seems to me misleading. The law has nothing to do with the actual state of the parties' minds. In contract, as elsewhere, it must go by externals, and judge parties by their conduct. If there had been but one "Peerless," and the defendant had said "Peerless" by mistake, meaning "Peri," he would have been bound. The true ground of the decision was not that each party meant a different thing from the other, as is implied by the explanation which has been mentioned, but that each said a different thing. The plaintiff offered one thing, the defendant expressed his assent to another. A proper name, when used in business or in pleading, /2/ means one individual thing, and no other, as every one knows, and therefore one to whom such a name is used must find out at his peril what the object designated is. If there are no circumstances which make the use deceptive on either side, each is entitled to insist on the [310] meaning favorable to him for the word as used by him, and neither is entitled to insist on that meaning for the word as used by the other. So far from mistake having been the ground of decision, as mistake, its only bearing, as it seems to me, was to establish that neither party knew that he was understood by the other to use the word "Peerless "in the sense which the latter gave to it. In that event there would perhaps have been a binding contract, because, if a man uses a word to which he knows the other party attaches, and understands him to attach, a certain meaning, he may be held to that meaning, and not be allowed to give it any other. /1/ Next, suppose a case in which the offer and acceptance do not differ, and in which both parties have used the same words in the same sense. Suppose that A agreed to buy, and B agreed to sell, "these barrels of mackerel," and that the barrels in question turn out to contain salt. There is mutual mistake as to the contents of the barrels, and no fraud on either side. I suppose the contract would be void. /2/ It is commonly said that the failure of the contract in such a case is due to the fact of a difference in kind between the actual subject-matter and that to which the intention of the parties was directed. It is perhaps more instructive to say that the terms of the supposed contract, although seemingly consistent, were contradictory, in matters that went to the root of the bargain. For, by one of the essential terms, the subject-matter of the agreement was the contents of certain barrels, and nothing else, and, by another equally important, it was mackerel, and nothing else; [311] while, as a matter of fact, it could not be both, because the contents of the barrels were salt. As neither term could be left out without forcing on the parties a contract which they did not make, it follows that A cannot be required to accept, nor B to deliver either these barrels of salt, or other barrels of mackerel; and without omitting one term, the promise is meaningless. If there had been fraud on the seller's part, or if he had known what the barrels really contained, the buyer might have had a right to insist on delivery of the inferior article. Fraud would perhaps have made the contract valid at his option. Because, when a man qualifies sensible words with others which he knows, on secret grounds, are insensible when so applied, he may fairly be taken to authorize his promisee to insist on the possible part of his promise being performed, if the promisee is willing to forego the rest. Take one more illustration like the last case. A policy of insurance is issued on a certain building described in the policy as a machine-shop. In fact the building is not a machine-shop, but an organ factory, which is a greater risk. The contract is void, not because of any misrepresentation, but, as before, because two of its essential terms are repugnant, and their union is insensible. /1/ Of course the principle of repugnancy last explained might be stretched to apply to any inconsistency between the different terms of a contract. It might be said, for instance, that if a piece of gold is sold as eighteen-carat gold, and it is in fact not so pure, or if a cow is sold as yielding an average of twelve quarts of milk a day, and in fact she yields only six quarts, there is no logical difference, [312] according to the explanation which has just been offered, between those cases and that of the barrel of salt sold for mackerel. Yet those bargains would not be void. At the most, they would only be voidable, if the buyer chose to throw them up. The distinctions of the law are founded on experience, not on logic. It therefore does not make the dealings of men dependent on a mathematical accuracy. Whatever is promised, a man has a right to be paid for, if it is not given; but it does not follow that the absence of some insignificant detail will authorize him to throw up the contract, still less that it will prevent the formation of a contract, which is the matter now under consideration. The repugnant terms must both be very important,--so important that the court thinks that, if either is omitted, the contract would be different in substance from that which the words of the parties seemed to express. A term which refers directly to an identification by the senses has always this degree of importance. If a promise is made to sell this cow, or this mackerel, to this man, whatever else may be stricken from the contract, it can never be enforced except touching this object and by this man. If this barrel of salt is fraudulently sold for a barrel of mackerel, the buyer may perhaps elect to take this barrel of salt if he chooses, but he cannot elect to take another barrel of mackerel. If the seller is introduced by the name B, and the buyer supposes him to be another person of the same name, and under that impression delivers his written promise to buy of B, the B to whom the writing is delivered is the contractee, if any one is, and, notwithstanding what has been said of the use of proper names, I should suppose [313] a contract would be made. /1/ For it is further to be said that, so far as by one of the terms of a contract the thing promised or the promisee is identified by sight and hearing, that term so far preponderates over all others that it is very rare for the failure of any other element of description to prevent the making of a contract. /2/ The most obvious of seeming exceptions is where the object not in fact so identified, but only its covering or wrapper. Of course the performance of a promise may be made conditional on all the terms stipulated from the other side being complied with, but conditions attaching to performance can never come into consideration until a contract has been made, and so far the question has been touching the existence of a contract in the first instance. A different case may be suggested from any yet considered. Instead of a repugnancy between offer and assent which prevents an agreement, or between the terms of an agreement which makes it insensible on its fact, there may be a like repugnancy between a term of the contract and a previous representation of fact which is not expressly made a part of the contract. The representation may have been the chief inducement and very foundation of the bargain. It may be more important than any of the expressed terms, and yet the contract may have [314] been reduced to writing in words which cannot fairly be construed to include it. A vendor may have stated that barrels filled with salt contain mackerel, but the contract may be only for the barrels and their contents. An applicant for insurance may have misstated facts essential to the risk, yet the policy may simply insure a certain building or a certain life. It may be asked whether these contracts are not void also. There might conceivably be cases in which, taking into account the nature of the contract, the words used could be said to embody the representation as a term by construction. For instance, it might be said that the true and well-understood purport of a contract of insurance is not, as the words seem to say, to take the risk of any loss by fire or perils of the sea, however great the risk may be, but to take a risk of a certain magnitude, and no other, which risk has been calculated mathematically from the statements of the party insured. The extent of the risk taken is not specified in the policy, because the old forms and established usage are otherwise, but the meaning is perfectly understood. If this reasoning were adopted, there would be an equal repugnancy in the terms of the contract, whether the nature of the risk were written in the policy or fixed by previous description. But, subject to possible exceptions of this kind, it would seem that a contract would be made, and that the most that could be claimed would be a right to rescind. Where parties having power to bind themselves do acts and use words which are fit to create an obligation, I take it that an obligation arises. If there is a mistake as to a fact not mentioned in the contract, it goes only to the motives for making the contract. But a [315] contract is not prevented from being made by the mere fact that one party would not have made it if he had known the truth. In what cases a mistake affecting motives is a ground for avoidance, does not concern this discussion, because the subject now under consideration is when a contract is made, and the question of avoiding or rescinding it presupposes that it has been made. I think that it may now be assumed that, when fraud, misrepresentation, or mistake is said to make a contract void, there is no new principle which comes in to set aside an otherwise perfect obligation, but that in every such case there is wanting one or more of the first elements which were explained in the foregoing Lecture. Either there is no second party, or the two parties say different things, or essential terms seemingly consistent are really inconsistent as used. When a contract is said to be voidable, it is assumed that a contract has been made, but that it is subject to being unmade at the election of one party. This must be because of the breach of some condition attached to its existence either expressly or by implication. If a condition is attached to the contract's coming into being, there is as yet no contract. Either party may withdraw, at will, until the condition is determined. There is no obligation, although there may be an offer or a promise, and hence there is no relation between the parties which requires discussion here. But some conditions seemingly arising out of a contract already made are conditions of this sort. Such is always the case if the condition of a promise lies within the control of the promisor's own will. For instance, a promise to pay for clothes if made to the customer's satisfaction, has been held in Massachusetts to [316] make the promisor his own final judge. /1/ So interpreted, it appears to me to be no contract at all, until the promisor's satisfaction is expressed. His promise is only to pay if he sees fit, and such a promise cannot be made a contract because it cannot impose any obligation. /2/ If the promise were construed to mean that the clothes should be paid for provided they were such as ought to satisfy the promisor, /3/ and thus to make the jury the arbiter, there would be a contract, because the promisor gives up control over the event, but it would be subject to a condition in the sense of the present analysis. The conditions which a contract may contain have been divided by theorists into conditions precedent and conditions subsequent. The distinction has even been pronounced of great importance. It must be admitted that, if the course of pleading be taken as a test, it is so. In some cases, the plaintiff has to state that a condition has been performed in order to put the defendant to his answer; in others, it is left to the defendant to set up that a condition has been broken. In one sense, all conditions are subsequent; in another, all are precedent. All are subsequent to the first stage of the obligation. /4/ Take, for instance, the case of a promise to pay for work if done to the satisfaction of an architect. The condition is a clear case of what is called a condition precedent. There can be no duty to pay until the architect is satisfied. But there can be a [317] contract before that moment, because the determination whether the promisor shall pay or not is no longer within his control. Hence the condition is subsequent to the existence of the obligation. On the other hand, every condition subsequent is precedent to the incidence of the burden of the law. If we look at the law as it would be regarded by one who had no scruples against doing anything which he could do without incurring legal consequences, it is obvious that the main consequence attached by the law to a contract is a greater or less possibility of having to pay money. The only question from the purely legal point of view is whether the promisor will be compelled to pay. And the important moment is that at which that point is settled. All conditions are precedent to that. But all conditions are precedent, not only in this extreme sense, but also to the existence of the plaintiff's cause of action. As strong a case as can be put is that of a policy of insurance conditioned to be void if not sued upon within one year from a failure to pay as agreed. The condition does not come into play until a loss has occurred, the duty to pay has been neglected, and a cause of action has arisen. Nevertheless, it is precedent to the plaintiff's cause of action. When a man sues, the question is not whether he has had a cause of action in the past, but whether he has one then. He has not one then, unless the year is still running. If it were left for the defendant to set up the lapse of the year, that would be due to the circumstance that the order of pleading does not require a plaintiff to meet all possible defences, and to set out a case unanswerable except by denial. The point at which the law calls on the defendant for an answer varies [318] in different cases. Sometimes it would seem to be governed simply by convenience of proof, requiring the party who has the affirmative to plead and prove it. Sometimes there seems to be a reference to the usual course of events, and matters belong to the defence because they are only exceptionally true. The most logical distinction would be between conditions which must be satisfied before a promise can be broken, and those which, like the last, discharge the liability after a breach has occurred. /1/ But this is of the slightest possible importance, and it may be doubted whether another case like the last could be found. It is much more important to mark the distinction between a stipulation which only has the effect of confining a promise to certain cases, and a condition properly so called. Every condition, it is true, has this effect upon the promise to which it is attached, so that, whatever the rule of pleading may be, /2/ a promise is as truly kept and performed by doing nothing where the condition of the stipulated act has been broken, as it would have been by doing the act if the condition had been fulfilled. But if this were all, every clause in a contract which showed what the promisor did not promise would be a condition, and the word would be worse than useless. The characteristic feature is quite different. A condition properly so called is an event, the happening of which authorizes the person in whose favor the condition is reserved to treat the contract as if it had not been made,--to avoid it, as is commonly said,--that is, to insist on both parties being restored to the position in [319] which they stood before the contract was made. When a condition operates as such, it lets in an outside force to destroy the existing state of things. For although its existence is due to consent of parties, its operation depends on the choice of one of them. When a condition is broken, the person entitled to insist on it may do so if he chooses; but he may, if he prefers, elect to keep the contract on foot. He gets his right to avoid it from the agreement, but the avoidance comes from him. Hence it is important to distinguish those stipulations which have this extreme effect from those which only interpret the extent of a promise, or define the events to which it applies. And as it has just been shown that a condition need not be insisted on as such, we must further distinguish between its operation by way of avoidance, which is peculiar to it, and its incidental working by way of interpretation and definition, in common with other clauses not conditions. This is best illustrated by taking a bilateral contract between A and B, where A's undertaking is conditional on B's doing what he promises to do, and where, after A has got a certain distance in his task, B breaks his half of the bargain. For instance, A is employed as a clerk by B, and is wrongfully dismissed in the middle of a quarter. In favor of A, the contract is conditional on B's keeping his agreement to employ him. Whether A insists on the condition or not, he is not bound to do any more. /1/ So far, the condition works simply by way of definition. It establishes that A has not promised to act in the case which has happened. But besides this, for which a condition [320] was not necessary, A may take his choice between two courses. In the first place, he may elect to avoid the contract. In that case the parties stand as if no contract had been made, and A, having done work for B which was understood not to be gratuitous, and for which no rate of compensation has been fixed, can recover what the jury think his services were reasonably worth. The contract no longer determines the quid pro quo. But as an alternative course A may stand by the contract if he prefers to do so, and sue B for breaking it. In that case he can recover as part of his damages pay at the contract rate for what he had done, as well as compensation for his loss of opportunity to finish it. But the points which are material for the present discussion are, that these two remedies are mutually exclusive, /1/ one supposing the contract to be relied on, the other that it is set aside, but that A's stopping work and doing no more after B's breach is equally consistent with either choice, and has in fact nothing to do with the matter. One word should be added to avoid misapprehension. When it is said that A has done all that he promised to do in the case which has happened, it is not meant that he is necessarily entitled to the same compensation as if he had done the larger amount of work. B's promise in the case supposed was to pay so much a quarter for services; and although the consideration of the promise was the promise by A to perform them, the scope of it was limited to the case of their being performed in fact. Hence A could not simply wait till the end of his term, and then recover the full amount which he would have had if the employment had continued. Nor is he any more entitled to do so from [321] the fact that it was B's fault that the services were not rendered. B's answer to any such claim is perfect. He is only liable upon a promise, and he in his turn only promised to pay in a case which has not happened. He did promise to employ, however, and for not doing that he is liable in damages. One or two more illustrations will be useful. A promises to deliver, and B promises to accept and pay for, certain goods at a certain time and place. When the time comes, neither party is on hand. Neither would be liable to an action, and, according to what has been said, each has done all that he promised to do in the event which has happened, to wit, nothing. It might be objected that, if A has done all that he is bound to do, he ought to be able to sue B, since performance or readiness to perform was all that was necessary to give him that right, and conversely the same might be said of B. On the other hand, considering either B or A as defendant, the same facts would be a complete defence. The puzzle is largely one of words. A and B have, it is true, each performed all that they promised to do at the present stage, because they each only promised to act in the event of the other being ready and willing to act at the same time. But the readiness and willingness, although not necessary to the performance of either promise, and therefore not a duty, was necessary in order to present a case to which the promise of action on the other side would apply. Hence, although A and B have each performed their own promise, they have not performed the condition to their right of demanding more from the other side. The performance of that condition is purely optional until one side has brought it within the [322] scope of the other's undertaking by performing it himself. But it is performance in the latter sense, that is, the satisfying of all conditions, as well as the keeping of his own promises, which is necessary to give A or B a right of action. Conditions may be created by the very words of a contract. Of such cases there is nothing to be said, for parties may agree to what they choose. But they may also be held to arise by construction, where no provision is made in terms for rescinding or avoiding the contract in any case. The nature of the conditions which the law thus reads in needs explanation. It may be said, in a general way, that they are directed to the existence of the manifest grounds for making the bargain on the side of the rescinding party, or the accomplishment of its manifest objects. But that is not enough. Generally speaking, the disappointment must be caused by the wrong-doing of the person on the other side; and the most obvious cases of such wrong-doing are fraud and misrepresentation, or failure to perform his own part of the contract. Fraud and misrepresentation thus need to be considered once more in this connection. I take the latter first. In dealing with it the first question which arises is whether the representation is, or is not, part of the contract. If the contract is in writing and the representation is set out on the face of the paper, it may be material or immaterial, but the effect of its untruth will be determined on much the same principles as govern the failure to perform a promise on the same side. If the contract is made by word of mouth, there may be a large latitude in connecting words of representation with later words of promise; but when they are determined to be a part of the contract [323], the same principles apply as if the whole were in writing. The question now before us is the effect of a misrepresentation which leads to, but is not a part of, the contract. Suppose that the contract is in writing, but does not contain it, does such a previous misrepresentation authorize rescission in any case? and if so, does it in any case except where it goes to the height of fraud? The promisor might say, It does not matter to me whether you knew that your representation was false or not; the only thing I am concerned with is its truth. If it is untrue, I suffer equally whether you knew it to be so or not. But it has been shown, in an earlier Lecture, that the law does not go on the principle that a man is answerable for all the consequences of all his acts. An act is indifferent in itself. It receives its character from the concomitant facts known to the actor at the time. If a man states a thing reasonably believing that he is speaking from knowledge, it is contrary to the analogies of the law to throw the peril of the truth upon him unless he agrees to assume that peril, and he did not do so in the case supposed, as the representation was not made part of the contract. It is very different when there is fraud. Fraud may as well lead to the making of a contract by a statement outside the contract as by one contained in it. But the law would hold the contract not less conditional on good faith in one case than in the other. To illustrate, we may take a somewhat extreme case. A says to B, I have not opened these barrels myself, but they contain No. 1 mackerel: I paid so much for them to so and so, naming a well-known dealer. Afterwards A writes B, I will sell the barrels which you saw, and their [324] contents, for so much; and B accepts. The barrels turn out to contain salt. I suppose the contract would be binding if the statements touching the contents were honest, and voidable if they were fraudulent. Fraudulent representations outside a contract can never, it would seem, go to anything except the motives for making it. If outside the contract, they cannot often affect its interpretation. A promise in certain words has a definite meaning, which the promisor is presumed to understand. If A says to B, I promise you to buy this barrel and its contents, his words designate a person and thing identified by the senses, and they signify nothing more. There is no repugnancy, and if that person is ready to deliver that thing, the purchaser cannot say that any term in the contract itself is not complied with. He may have been fraudulently induced to believe that B was another B, and that the barrel contained mackerel; but however much his belief on those points may have affected his willingness to make the promise, it would be somewhat extravagant to give his words a different meaning on that account. "You" means the person before the speaker, whatever his name, and "contents" applies to salt, as well as to mackerel. It is no doubt only by reason of a condition construed into the contract that fraud is a ground of rescission. Parties could agree, if they chose, that a contract should be binding without regard to truth or falsehood outside of it on either part. But, as has been said before in these Lectures, although the law starts from the distinctions and uses the language of morality, it necessarily ends in external standards not dependent on the actual consciousness of the individual. [325] So it has happened with fraud. If a man makes a representation, knowing facts which by the average standard of the community are sufficient to give him warning that it is probably untrue, and it is untrue, he is guilty of fraud in theory of law whether he believes his statement or not. The courts of Massachusetts, at least, go much further. They seem to hold that any material statement made by a man as of his own knowledge, or in such a way as fairly to be understood as made of his own knowledge, is fraudulent if untrue, irrespective of the reasons he may have had for believing it and for believing that he knew it. /1/ It is clear, therefore, that a representation may be morally innocent, and yet fraudulent in theory of law. Indeed, the Massachusetts rule seems to stop little short of the principle laid down by the English courts of equity, which has been criticised in an earlier Lecture, /2/ since most positive affirmations of facts would at least warrant a jury in finding that they were reasonably understood to be made as of the party's own knowledge, and might therefore warrant a rescission if they turned out to be untrue. The moral phraseology has ceased to be apposite, and an external standard of responsibility has been reached. But the starting-point is nevertheless fraud, and except on the ground of fraud, as defined by law, I do not think that misrepresentations before the contract affect its validity, although they lead directly to its making. But neither the contract nor the implied condition calls for the existence of the facts as to which the false representations were made. They call only for the absence of certain false representations. The condition is not that the promisee shall be a certain other B, or that the contents of the barrel shall be mackerel, [326] but that the promisee has not lied to him about material facts. Then the question arises, How do you determine what facts are material? As the facts are not required by the contract, the only way in which they can be material is that a belief in their being true is likely to have led to the making of the contract. It is not then true, as it is sometimes said, that the law does not concern itself with the motives for making contracts. On the contrary, the whole scope of fraud outside the contract is the creation of false motives and the removal of true ones. And this consideration will afford a reasonable test of the cases in which fraud will warrant rescission. It is said that a fraudulent representation must be material to have that effect. But how are we to decide whether it is material or not? If the above argument is correct, it must be by an appeal to ordinary experience to decide whether a belief that the fact was as represented would naturally have led to, or a contrary belief would naturally have prevented, the making of the contract. If the belief would not naturally have had such an effect, either in general or under the known circumstances of the particular case, the fraud is immaterial. If a man is induced to contract with another by a fraudulent representation of the latter that he is a great-grandson of Thomas Jefferson, I do not suppose that the contract would be voidable unless the contractee knew that, for special reasons, his lie would tend to bring the contract about. The conditions or grounds for avoiding a contract which have been dealt with thus far are conditions concerning the conduct of the parties outside of the itself. [327] Still confining myself to conditions arising by construction of law,--that is to say, not directly and in terms attached to a promise by the literal meaning of the words in which it is expressed,--I now come to those which concern facts to which the contract does in some way refer. Such conditions may be found in contracts where the promise is only on one side. It has been said that where the contract is unilateral, and its language therefore is all that of the promisor, clauses in his favor will be construed as conditions more readily than the same words in a bilateral contract; indeed, that they must be so construed, because, if they do not create a condition, they do him no good, since ex hypothesi they are not promises by the other party. /1/ How far this ingenious suggestion has had a practical effect on doctrine may perhaps be doubted. But it will be enough for the purposes of this general survey to deal with bilateral contracts, where there are undertakings on both sides, and where the condition implied in favor of one party is that the other shall make good what he on his part has undertaken. The undertakings of a contract may be for the existence of a fact in the present or in the future. They can be promises only in the latter case; but in the former, they be equally essential terms in the bargain. Here again we come on the law of representations, but in a new phase. Being a part of the contract, it is always possible that their truth should make a condition of the contract wholly irrespective of any question of fraud. And it often is so in fact. It is not, however, every representation embodied in the words used on one side which will [328] make a condition in favor of the other party. Suppose A agrees to sell, and B agrees to buy, "A's seven-year-old sorrel horse Eclipse, now in the possession of B on trial," and in fact the horse is chestnut-colored, not sorrel. I do not suppose that B could refuse to pay for the horse on that ground. If the law were so foolish as to aim at merely formal consistency, it might indeed be said that there was as absolute a repugnancy between the different terms of this contract as in the ease of an agreement to sell certain barrels of mackerel, where the barrels turned out to contain salt. If this view were adopted, there would not be a contract subject to a condition, there would be no contract at all. But in truth there is a contract, and there is not even a condition. As has been said already, it is not every repugnancy that makes a contract void, and it is not every failure in the terms of the counter undertaking that makes it voidable. Here it plainly appears that the buyer knows exactly what he is going to get, and therefore that the mistake of color has no bearing on the bargain. /1/ If, on the other hand, a contract contained a representation which was fraudulent, and which misled the party to whom it was made, the contract would be voidable on the same principles as if the representation had been made beforehand. But words of description in a contract are very frequently held to amount to what is sometimes called a warranty, irrespective of fraud. Whether they do so or not is a question to be determined by the court on grounds of common sense, looking to the meaning of the words, the importance in the transaction of the facts [329] which the words convey, and so forth. But when words of description are determined to be a warranty, the meaning of the decision is not merely that the party using them binds himself to answer for their truth, but that their truth is a condition of the contract. For instance, in a leading case /1/ the agreement was that the plaintiff's ship, then in the port of Amsterdam, should, with all possible despatch, proceed direct to Newport, England, and there load a cargo of coals for Hong Kong. At the date of the charter-party the vessel was not in Amsterdam, but she arrived there four days later. The plaintiff had notice that the defendant considered time important. It was held that the presence of the vessel in the port of Amsterdam at the date of the contract was a condition, the breach of which entitled the defendant to refuse to load, and to rescind the contract. If the view were adopted that a condition must be a future event, and that a promise purporting to be conditional on a past or present event is either absolute or no promise at all, it would follow that in this case the defendant had never made a promise. /2/ He had only promised if circumstances existed which did not exist. I have already stated my objections to this way of looking at such cases, /2/ and will only add that the courts, so far as I am aware, do not sanction it, and certainly did not in this instance. There is another ground for holding the charter-party void and no contract, instead of regarding it as only voidable, which is equally against authority, which nevertheless I have never been able to answer wholly to my satisfaction. In the case put, the representation of the lessor of the vessel [330] concerned the vessel itself, and therefore entered into the description of the thing the lessee agreed to take. I do not quite see why there is not as fatal a repugnancy between the different terms of this contract as was found in that for the sale of the barrels of salt described as containing mackerel. Why is the repugnancy between the two terms,--first, that the thing sold is the contents of these barrels, and, second, that it is mackerel--fatal to the existence of a contract? It is because each of those terms goes to the very root and essence of the contract, /1/--because to compel the buyer to take something answering to one, but not to the other requirement, would be holding him to do a substantially different thing from what he promised, and because a promise to take one and the same thing answering to both requirements is therefore contradictory in a substantial matter. It has been seen that the law does not go on any merely logical ground, and does not hold that every slight repugnancy will make a contract even voidable. But, on the other hand, when the repugnancy is between terms which are both essential, it is fatal to the very existence of the contract. How then do we decide whether a given term is essential? Surely the best way of finding out is by seeing how the parties have dealt with it. For want of any expression on their part we may refer to the speech and dealings of every day, /2/ and say that, if its absence would make the subject-matter a different thing, its presence is essential to the existence of the agreement. But the parties may agree that anything, however trifling, shall be essential, as well [331] as that anything, however important, shall not be; and if that essential is part of the contract description of a specific thing which is also identified by reference to the senses, how can there be a contract in its absence any more than if the thing is in popular speech different in kind from its description? The qualities that make sameness or difference of kind for the purposes of a contract are not determined by Agassiz or Darwin, or by the public at large, but by the will of the parties, which decides that for their purposes the characteristics insisted on are such and such. /1/1 Now, if this be true, what evidence can there be that a certain requirement is essential, that without it the subject-matter will be different in kind from the description, better than that one party has required and the other given a warranty of its presence? Yet the contract description of the specific vessel as now in the port of Amsterdam, although held to be an implied warranty, does not seem to have been regarded as making the contract repugnant and void, but only as giving the defendant the option of avoiding it. /2/ Even an express warranty of quality in sales does not have this effect, and in England, indeed, it does not allow the purchaser to rescind in case of breach. On this last point the law of Massachusetts is different. The explanation has been offered of the English doctrine with regard to sales, that, when the title has passed, the purchaser has already had some benefit from the contract, and therefore cannot wholly replace the seller in statu quo, as must be done when a contract is rescinded. /3/ This reasoning [332] seems doubtful, even to show that the contract is not voidable, but has no bearing on the argument that it is void. For if the contract is void, the title does not pass. It might be said that there is no repugnancy in the charterer's promise, because he only promises to load a certain ship, and that the words "now in the port of Amsterdam" are merely matter of history when the time for loading comes, and no part of the description of the vessel which he promised to load. But the moment those words are decided to be essential they become part of the description, and the promise is to load a certain vessel which is named the Martaban, and which was in the port of Amsterdam at the date of the contract. So interpreted, it is repugnant. Probably the true solution is to be found in practical considerations. At any rate, the fact is that the law has established three degrees in the effect of repugnancy. If one of the repugnant terms is wholly insignificant, it is simply disregarded, or at most will only found a claim for damages. The law would be loath to hold a contract void for repugnancy in present terms, when if the same terms were only promised a failure of one of them would not warrant a refusal to perform on the other side. If, on the other hand, both are of the extremest importance, so that to enforce the rest of the promise or bargain without one of them would not merely deprive one party of a stipulated incident, but would force a substantially different bargain on him, the promise will be void. There is an intermediate class of cases where it is left to the disappointed party to decide. But as the lines between the three are of this vague kind, it is not surprising that they have been differently drawn in different jurisdictions. [333] The examples which have been given of undertakings for a present state of facts have been confined to those touching the present condition of the subject-matter of the contract. Of course there is no such limit to the scope of their employment. A contract may warrant the existence of other facts as well, and examples of this kind probably might be found or imagined where it would be clear that the only effect of the warranty was to attach a condition to the contract, in favor of the other side, and where the question would be avoided whether there was not something more than a condition,--a repugnancy which prevented the formation of any contract at all. But the preceding illustrations are enough for the present purpose. We may now pass from undertakings that certain facts are true at the time of making the contract, to undertakings that certain facts shall be true at some later time,--that is, to promises properly so called. The question is when performance of the promise on one side is a condition to the obligation of the contract on the other. In practice, this question is apt to be treated as identical with another, which, as has been shown earlier, is a distinct point; namely, when performance on one side is a condition of the right to call for performance on the other. It is of course conceivable that a promise should be limited to the case of performance of the things promised on the other side, and yet that a failure of the latter should not warrant a rescission of the contract. Wherever one party has already received a substantial benefit under a contract of a kind which cannot be restored, it is too late to rescind, however important a breach may be committed later by the other side. Yet he may be [334] excused from going farther. Suppose a contract is made for a month's labor, ten dollars to be paid down, not to be recovered except in case of rescission for the laborer's fault, and thirty dollars at the end of the month. If the laborer should wrongfully stop work at the end of a fortnight, I do not suppose that the contract could be rescinded, and that the ten dollars could be recovered as money had and received; /1/ but, on the other hand, the employer would not be bound to pay the thirty dollars, and of course he could sue for damages on the contract. /2/ But, for the most part, a breach of promise which discharges the promisee from further performance on his side will also warrant rescission, so that no great harm is done by the popular confusion of the two questions. Where the promise to perform on one side is limited to the case of performance on the other, the contract is generally conditioned on it also. In what follows, I shall take up the cases which I wish to notice without stopping to consider whether the contract was in a strict sense conditioned on performance of the promise on one side, or whether the true construction was merely that the promise on the other side was limited to that event. Now, how do we settle whether such a condition exists? It is easy to err by seeking too eagerly for simplicity, and by striving too hard to reduce all cases to artificial presumptions, which are less obvious than the decisions which they are supposed to explain. The foundation of the whole matter is, after all, good sense, as the courts have often said. The law means to carry out the intention of the parties, and, so far as they have not provided [335] for the event which has happened, it has to say what they naturally would have intended if their minds had been turned to the point. It will be found that decisions based on the direct implications of the language used, and others based upon a remoter inference of what the parties must have meant, or would have said if they had spoken, shade into each other by imperceptible degrees. Mr. Langdell has called attention to a very important principle, and one which, no doubt, throws light on many decisions. /1/ This is, that, where you have a bilateral contract, while the consideration of each promise is the counter promise, yet prima facie the payment for performance of one is performance of the other. The performance of the other party is what each means to have in return for his own. If A promises a barrel of flour to B, and B promises him ten dollars for it, A means to have the ten dollars for his flour, and B means to have the flour for his ten dollars. If no time is set for either act, neither can call on the other to perform without being ready at the same time himself. But this principle of equivalency is not the only principle to be drawn even from the form of contracts, without considering their subject-matter, and of course it is not offered as such in Mr. Langdell's work. Another very clear one is found in contracts for the sale or lease of a thing, and the like. Here the qualities or characteristics which the owner promises that the thing furnished shall possess, go to describe the thing which the buyer promises to accept. If any of the promised traits are wanting in the thing tendered, the buyer may refuse to accept, not merely on the ground that he has not [336] been offered the equivalent for keeping his promise, but also on the ground that he never promised to accept what is offered him. /1/ It has been seen that, where the contract contains a statement touching the condition of the thing at an earlier time than the moment for its acceptance, the past condition may not always be held to enter into the description of the thing to be accepted. But no such escape is possible here. Nevertheless there are limits to the right of refusal even in the present class of cases. If the thing promised is specific, the preponderance of that part of the description which identifies the object by reference to the senses is sometimes strikingly illustrated. One case has gone so far as to hold that performance of an executory contract to purchase a specific thing cannot be refused because it fails to come up to the warranted quality. /2/ Another principle of dependency to be drawn from the form of the contract itself is, that performance of the promise on one side may be manifestly intended to furnish the means for performing the promise on the other. If a tenant should promise to make repairs, and the landlord should promise to furnish him wood for the purpose, it is believed that at the present day, whatever may have been the old decisions, the tenant's duty to repair would be dependent upon the landlord's furnishing the material when required. /3/ [337] Another case of a somewhat exceptional kind is where a party to a bilateral contract agrees to do certain things and to give security for his performance. Here it is manifest good-sense to hold giving the security a condition of performance on the other side, if it be possible. For the requirement of security shows that the party requiring it was not content to rely on the simple promise of the other side, which he would be compelled to do if he had to perform before the security was given, and thus the very object of requiring it would be defeated. /1/ This last case suggests what is very forcibly impressed on any one who studies the cases,--that, after all, the most important element of decision is not any technical, or even any general principle of contracts, but a consideration of the nature of the particular transaction as a practical matter. A promises B to do a day's work for two dollars, and B promises A to pay two dollars for a day's work. There the two promises cannot be performed at the same time. The work will take all day, the payment half a minute. How are you to decide which is to be done first, that is to say, which promise is dependent upon performance on the other side? It is only by reference to the habits of the community and to convenience. It is not enough to say that on the principle of equivalency a man is not presumed to intend to pay for a thing until he has it. The work is payment for the money, as much as the [338] money for the work, and one must be paid in advance. The question is, why, if one man is not presumed to intend to pay money until he has money's worth, the other is presumed to intend to give money's worth before he has money. An answer cannot be obtained from any general theory. The fact that employers, as a class, can be trusted for wages more safely than the employed for their labor, that the employers have had the power and have been the law-makers, or other considerations, it matters not what, have determined that the work is to be done first. But the grounds of decision are purely practical, and can never be elicited from grammar or from logic. A reference to practical considerations will be found to run all through the subject. Take another instance. The plaintiff declared on a mutual agreement between himself and the defendant that he would sell, and the defendant would buy, certain Donskoy wool, to be shipped by the plaintiff at Odessa, and delivered in England. Among the stipulations of the contract was one, that the names of the vessels should be declared as soon as the wools were shipped. The defence was, that the wool was bought, with the knowledge of both parties, for the purpose of reselling it in the course of the defendant's business; that it was an article of fluctuating value, and not salable until the names of the vessels in which it was shipped should have been declared according to the contract, but that the plaintiff did not declare the names of the vessels as agreed. The decision of the court was given by one of the greatest technical lawyers that ever lived, Baron Parke; yet he did not dream of giving any technical or merely logical reason for the decision, but, after stating in the above words the facts which were deemed material to the question [339] whether declaring the names of the vessels was a condition to the duty to accept, stated the ground of decision thus: "Looking at the nature of the contract, and the great importance of it to the object with which the contract was entered into with the knowledge of both parties, we think it was a condition precedent." /1/ [340] LECTURE X. -- SUCCESSIONS AFTER DEATH. In the Lecture on Possession, I tried to show that the notion of possessing a right as such was intrinsically absurd. All rights are consequences attached to filling some situation of fact. A right which may be acquired by possession differs from others simply in being attached to a situation of such a nature that it may be filled successively by different persons, or by any one without regard to the lawfulness of his doing so, as is the case where the situation consists in having a tangible object within one's power. When a right of this sort is recognized by the law, there is no difficulty in transferring it; or, more accurately, there is no difficulty in different persons successively enjoying similar rights in respect of the subject-matter. If A, being the possessor of a horse or a field, gives up the possession to B, the rights which B acquires stand on the same ground as A's did before. The facts from which A's rights sprang have ceased to be true of A, and are now true of B. The consequences attached by the law to those facts now exist for B, as they did for A before. The situation of fact from which the rights spring is continuing one, and any one who occupies it, no matter how, has the rights attached to it. But there is no possession possible of a contract. The [341] fact that a consideration was given yesterday by A to B, and a promise received in return, cannot be laid hold of by X, and transferred from A to himself. The only thing can be transferred is the benefit or burden of the promise, and how can they be separated from the facts which gave rise to them? How, in short, can a man sue or be sued on a promise in which he had no part? Hitherto it has been assumed, in dealing with any special right or obligation, that the facts from which it sprung were true of the individual entitled or bound. But it often happens, especially in modern law, that a person acquires and is allowed to enforce a special right, although that facts which give rise to it are not true of him, or are true of him only in part. One of the chief problems of the law is to explain the machinery by which this result has been brought to pass. It will be observed that the problem is not coextensive with the whole field of rights. Some rights cannot be transferred by any device or contrivance; for instance, a man's right a to bodily safety or reputation. Others again are incident to possession, and within the limits of that conception no other is necessary. As Savigny said, "Succession does not apply to possession by itself." /1/ But the notion of possession will carry us but a very little way in our understanding of the modern theory of transfer. That theory depends very largely upon the notion of succession, to use the word just quoted from Savigny, and accordingly successions will be the subject of this and the following Lecture. I shall begin by explaining the theory of succession to persons deceased, and after that is done shall pass to the theory of transfer between living [342] people, and shall consider whether any relation can be established between the two. The former is easily shown to be founded upon a fictitious identification between the deceased and his successor. And as a first step to the further discussion, as well as for its own sake, I shall briefly state the evidence touching the executor, the heir, and the devisee. In order to understand the theory of our law with regard to the first of these, at least, scholars are agreed that it is necessary to consider the structure and position of the Roman family as it was in the infancy of Roman society. Continental jurists have long been collecting the evidence that, in the earlier periods of Roman and German law alike, the unit of society was the family. The Twelve Tables of Rome still recognize the interest of the inferior members of the family in the family property. Heirs are called sui heredes, that is, heirs of themselves or of their own property, as is explained by Gaius. /1/ Paulus says that they are regarded as owners in a certain sense, even in the lifetime of their father, and that after his death they do not so much receive an inheritance as obtain the full power of dealing with their property. /2/ Starting from this point it is easy to understand the [343] succession of heirs to a deceased paterfamilias in the Roman system. If the family was the owner of the property administered by a paterfamilias, its rights remained unaffected by the death of its temporary head. The family continued, although the head died. And when, probably by a gradual change, /1/ the paterfamilias came to be regarded as owner, instead of a simple manager of the family rights, the nature and continuity of those rights did not change with the title to them. The familia continued to the heirs as it was left by the ancestor. The heir succeeded not to the ownership of this or that thing separately, but to the total hereditas or headship of the family with certain rights of property as incident, /2/ and of course he took this headship, or right of representing the family interests, subject to the modifications effected by the last manager. The aggregate of the ancestor's rights and duties, or, to use the technical phrase, the total persona sustained by him, was easily separated from his natural personality. For this persona was but the aggregate of what had formerly been family rights and duties, and was originally sustained by any individual only as the family head. Hence it was said to be continued by the inheritance, /3/ and when the heir assumed it he had his action in respect of injuries previously committed. /4/ Thus the Roman heir came to be treated as identified with his ancestor for the purposes of the law. And thus it is clear how the impossible transfers which I seek to explain were accomplished in that instance. Rights to which B [344] as B could show no title, he could readily maintain under the fiction that he was the same person as A, whose title was not denied. It is not necessary at this point to study family rights in the German tribes. For it is not disputed that the modern executor derives his characteristics from the Roman heir. Wills also were borrowed from Rome, and were unknown to the Germans of Tacitus. /1/ Administrators were a later imitation of executors, introduced by statute for cases where there was no will, or where, for any other reason, executors were wanting. The executor has the legal title to the whole of the testator's personal estate, and, generally speaking, the power of alienation. Formerly he was entitled to the undistributed residue, not, it may fairly be conjectured, as legatee of those specific chattels, but because he represented the person of the testator, and therefore had all the rights which the testator would have had after distribution if alive. The residue is nowadays generally bequeathed by the will, but it is not even now regarded as a specific gift of the chattels remaining undisposed of, and I cannot help thinking that this doctrine echoes that under which the executor took in former times. No such rule has governed residuary devises of real estate, which have always been held to be specific in England down to the present day. So that, if a devise of land should fail, that land would not be disposed of by the residuary clause, but would descend to the heir as if there had been no will. Again, the appointment of an executor relates back to the date of the testator's death. The continuity of person [345] is preserved by this fiction, as in Rome it was by personifying the inheritance ad interim. Enough has been said to show the likeness between our executor and the Roman heir. And bearing in mind what was said about the heres, it will easily be seen how it came to be said, as it often was in the old books, that the executor "represents the person of his testator." /1/ The meaning of this feigned identity has been found in history, but the aid which it furnished in overcoming a technical difficulty must also be appreciated. If the executor represents the person of the testator, there is no longer any trouble in allowing him to sue or be sued on his testator's contracts. In the time of Edward III., when an action of covenant was brought against executors, Persay objected: "I never heard that one should have a writ of covenant against executors, nor against other person but the very one who made the covenant, for a man cannot oblige another person to a covenant by his deed except him who was party to the covenant." /2/ But it is useless to object that the promise sued upon was made by A, the testator, not by B, the executor, when the law says that for this purpose B is A. Here then is one class of cases in which a transfer is accomplished by the help of a fiction, which shadows, as fictions so often do, the facts of an early stage of society, and which could hardly have been invented had these facts been otherwise. Executors and administrators afford the chief, if not the only, example of universal succession in the English [346] law. But although they succeed per universitatem, as has been explained, they do not succeed to all kinds of property. The personal estate goes to them, but land takes another course. All real estate not disposed of by will goes to the heir, and the rules of inheritance are quite distinct from those which govern the distribution of chattels. Accordingly, the question arises whether the English heir or successor to real estate presents the same analogies to the Roman heres as the executor. The English heir is not a universal successor. Each and every parcel of land descends as a separate and specific thing. Nevertheless, in his narrower sphere he unquestionably represents the person of his ancestor. Different opinions have been held as to whether the same thing was true in early German law. Dr. Laband says that it was; /1/ Sohm takes the opposite view. /2/ It is commonly supposed that family ownership, at least of land, came before that of individuals in the German tribes, and it has been shown how naturally representation followed from a similar state of things in Rome. But it is needless to consider whether our law on this subject is of German or Roman origin, as the principle of identification has clearly prevailed from the time of Glanvill to the present day. If it was not known to the Germans, it is plainly accounted for by the influence of the Roman law. If there was anything of the sort in the Salic law, it was no doubt due to natural causes similar to those which gave rise to the principle at Rome. But in either event I cannot doubt that the modern doctrine has taken a good deal of its form, and perhaps some of its substance, from the mature system [347] of the civilians, in whose language it was so long expressed. For the same reasons that have just been mentioned, it is also needless to weigh the evidence of the Anglo-Saxon sources, although it seems tolerably clear from several passages in the laws that there was some identification. /1/ As late as Bracton, two centuries after the Norman conquest, the heir was not the successor to lands alone, but represented his ancestor in a much more general sense, as will be seen directly. The office of executor, in the sense of heir, was unknown to the Anglo-Saxons, /2/ and even in Bracton's time does not seem to have been what it has since become. There is, therefore, no need to go back further than to the early Norman period, after the appointment of executors had become common, and the heir was more nearly what he is now. When Glanvill wrote, a little more than a century after the Conquest, the heir was bound to warrant the reasonable gifts of his ancestor to the grantees and their heirs; /3/ and if the effects of the ancestor were insufficient to pay his debts, the heir was bound to make up the deficiency from his own property. /4/ Neither Glanvill nor his Scotch imitator, the Regiam Majestatem, /5/ limits the liability to the amount of property inherited from the same source. This makes the identification of heir and ancestor as complete as that of the Roman law before such a limitation was introduced by Justinian. On the other hand, a century [348] later, it distinctly appears from Bracton, /1/ that the heir was only bound so far as property had descended to him, and in the early sources of the Continent, Norman as well as other, the same limitation appears. /2/ The liabilities of the heir were probably shrinking. Britton and Fleta, the imitators of Bracton, and perhaps Bracton himself, say that an heir is not bound to pay his ancestor's debt, unless he be thereto especially bound by the deed of his ancestor. /3/ The later law required that the heir should be mentioned if he was to be held. But at all events the identification of heir and ancestor still approached the nature of a universal succession in the time of Bracton, as is shown by another statement of his. He asks if the testator can bequeath his rights of action, and answers, No, so far as concerns debts not proved and recovered in the testator's life. But actions of that sort belong to the heirs, and must be sued in the secular court; for before they are so recovered in the proper court, the executor cannot proceed for them in the ecclesiastical tribunal. /4/ This shows that the identification worked both ways. The heir was liable for the debts due from his ancestor, and he could recover those which were due to him, until [349] the executor took his place in the King's Courts, as well as in those of the Church. Within the limits just explained the heir was also bound to warrant property sold by his ancestor to the purchaser and his heirs. /1/ It is not necessary, after this evidence that the modern heir began by representing his ancestor generally, to seek for expressions in later books, since his position has been limited. But just as we have seen that the executor is still said to represent the person of his testator, the heir was said to represent the person of his ancestor in the time of Edward I. /2/ So, at a much later date, it was said that "the heir is in representation in point of taking by inheritance eadam persona cum antecessore," /3/ the same persona as his ancestor. A great judge, who died but a few years ago, repeats language which would have been equally familiar to the lawyers of Edward or of James. Baron Parke, after laying down that in general a party is not required to make profert of an instrument to the possession of which he is not entitled, says that there is an exception "in the cases of heir and executor, who may plead a release to the ancestor or testator whom they respectively represent; so also with respect to several tortfeasors, for in all these cases there is a privity between the parties which constitutes an identity of person." /4/ But this is not all. The identity of person was carried [350] farther still. If a man died leaving male children, and owning land in fee, it went to the oldest son alone; but, if he left only daughters, it descended to them all equally. In this case several individuals together continued the persona of their ancestor. But it was always laid down that they were but one heir. /1/ For the purpose of working out this result, not only was one person identified with another, but several persons were reduced to one, that they might sustain a single persona. What was the persona? It was not the sum of all the rights and duties of the ancestor. It has been seen that for many centuries his general status, the sum of all his rights and duties except those connected with real property, has been taken up by the executor or administrator. The persona continued by the heir was from an early day confined to real estate in its technical sense; that is, to property subject to feudal principles, as distinguished from chattels, which, as Blackstone tells us, /2/ include whatever was not a feud. But the heir's persona was not even the sum of all the ancestor's rights and duties in connection with real estate. It has been said already that every fee descends specifically, and not as incident to a larger universitas. This appears not so much from the fact that the rules of descent governing different parcels might be different, /3/ so that the same person would not be heir to both, as from the very nature of feudal property. Under the feudal system in its vigor, the holding of land was only one [351] incident of a complex personal relation. The land was forfeited for a failure to render the services for which it was granted; the service could be renounced for a breach of correlative duties on the part of the lord. /1/ It rather seems that, in the beginning of the feudal period under Charlemagne, a man could only hold land of one lord. /2/ Even when it had become common to hold of more than one, the strict personal relation was only modified so far as to save the tenant from having to perform inconsistent services. Glanvill and Bracton /3/ a tell us that a tenant holding of several lords was to do homage for each fee, but to reserve his allegiance for the lord of whom he held his chief estate; but that, if the different lords should make war upon each other, and the chief lord should command the tenant to obey him in person, the tenant ought to obey, saving the service due to the other lord for the fee held of him. We see, then, that the tenant had a distinct persona or status in respect of each of the fees which he held. The rights and duties incident to one of them had no relation to the rights and duties incident to another. A succession to one had no connection with the succession to another. Each succession was the assumption of a distinct personal relation, in which the successor was to be determined by the terms of the relation in question. The persona which we are seeking to define is the estate. Every fee is a distinct persona, a distinct hereditas, or inheritance, as it has been called since the time of Bracton. We have already seen that it may be sustained by more [352] than one where there are several heirs, as well as by one, just as a corporation may have more or less members. But not only may it be divided lengthwise, so to speak, among persons interested in the same way at the same time: it may also be cut across into successive interests, to be enjoyed one after another. In technical language, it may be divided into a particular estate and remainders. But they are all parts of the same fee, and the same fiction still governs them. We read in an old case that "he in reversion and particular tenant are but one tenant." /1/ This is only a statement of counsel, to be sure; but it is made to account for a doctrine which seems to need the explanation, to the effect that, after the death of the tenant for life, he in reversion might have error or attaint on an erroneous judgment or false verdict given against the tenant for life. /2/ To sum up the results so far, the heir of modern English law gets his characteristic features from the law as it stood soon after the Conquest. At that time he was a universal successor in a very broad sense. Many of his functions as such were soon transferred to the executor. The heir's rights became confined to real estate, and his liabilities to those connected with real estate, and to obligations of his ancestor expressly binding him. The succession to each fee or feudal inheritance is distinct, not part of the sum of all the ancestor's rights regarded as one whole. But to this day the executor in his sphere, and the heir in his, represent the person of the deceased, and are treated as if they were one with him, for the purpose of settling their rights and obligations. The bearing which this has upon the contracts of the [353] deceased has been pointed out. But its influence is not confined to contract; it runs through everything. The most striking instance, however, is the acquisition of prescriptive rights. Take the case of a right of way. A right of way over a neighbor's land can only be acquired by grant, or by using it adversely for twenty years. A man uses a way for ten years, and dies. Then his heir uses it ten years. Has any right been acquired? If common sense alone is consulted, the answer must be no. The ancestor did not get any right, because he did not use the way long enough. And just as little did the heir. How can it better the heir's title that another man had trespassed before him? Clearly, if four strangers to each other used the way for five years each, no right would be acquired by the last. But here comes in the fiction which has been so carefully explained. From the point of view of the law it is not two persons who have used the way for ten years each, but one who has used it for twenty. The heir has the advantage of sustaining his ancestor's and the right is acquired. LECTURE X. -- SUCCESSIONS INTER VIVOS I now reach the most difficult and obscure part of the subject. It remains to be discovered whether the fiction of identity was extended to others besides the heir and executor. And if we find, as we do, that it went but little farther in express terms, the question will still arise whether the mode of thought and the conceptions made possible by the doctrine of inheritance have not silently modified the law as to dealings between the living. It seems to me demonstrable that their influence has been profound, and that, without understanding the theory of inheritance, it is impossible to understand the theory of transfer inter vivos. [354] The difficulty in dealing with the subject is to convince the sceptic that there is anything to explain. Nowadays, the notion that a right is valuable is almost identical with the notion that it may be turned into money by selling it. But it was not always so. Before you can sell a right, you must be able to make a sale thinkable in legal terms. I put the case of the transfer of a contract at the beginning of the Lecture. I have just mentioned the case of gaining a right by prescription, when neither party has complied with the requirement of twenty years' adverse use. In the latter instance, there is not even a right at the time of the transfer, but a mere fact of ten years' past trespassing. A way, until it becomes a right of way, is just as little susceptible of being held by a possessory title as a contract. If then a contract can be sold, if a buyer can add the time of his seller's adverse user to his own, what is the machinery by which the law works out the result? The most superficial acquaintance with any system of law in its earlier stages will show with what difficulty and by what slow degrees such machinery has been provided, and how the want of it has restricted the sphere of alienation. It is a great mistake to assume that it is a mere matter of common sense that the buyer steps into the shoes of the seller, according to our significant metaphor. Suppose that sales and other civil transfers had kept the form of warlike capture which it seems that they had in the infancy of Roman law, /1/ and which was at least [355] partially retained in one instance, the acquisition of wives, after the transaction had, in fact, taken the more civilized shape of purchase. The notion that the buyer came in adversely to the seller would probably have accompanied the fiction of adverse taking, and he would have stood on his own position as founding a new title. Without the aid of conceptions derived from some other source, it would have been hard to work out a legal transfer of objects which did not admit of possession. A possible source of such other conceptions was to be found in family law. The principles of inheritance furnished a fiction and a mode of thought which at least might have been extended into other spheres. In order to prove that they were in fact so extended, it will be necessary to examine once more the law of Rome, as well as the remains of German and Anglo-Saxon customs. I will take up first the German and Anglo-Saxon laws which are the ancestors of our own on one side of the house. For although what we get from those sources is not in the direct line of the argument, it lays a foundation for it by showing the course of development in different fields. The obvious analogy between purchaser and heir seems to have been used in the folk-laws, but mainly for another purpose than those which will have to be considered in the English law. This was to enlarge the sphere of alienability. It will be remembered that there are many traces of family ownership in early German, as well as in early Roman law; and it would seem that the transfer [356] of property which originally could not be given outside the family, was worked out through the form of making the grantee an heir. The history of language points to this conclusion. Heres, as Beseler /1/ and others have remarked, from meaning a successor to the property of a person deceased, was extended to the donee mortis causa, and even more broadly to grantees in general. Hereditare was used in like manner for the transfer of land. Hevin is quoted by Laferriere /2/ as calling attention to the fact that the ancient usage was to say heriter for purchase, heritier for purchaser, and desheriter for sell. The texts of the Salic law give us incontrovertible evidence. A man might transfer the whole or any part of his property /3/ by delivering possession of it to a trustee who, within twelve months, handed it over to the beneficiaries. /4/ To those, the text reads, whom the donor has named heredes (quos heredes appellavit). Here then was a voluntary transfer of more or less property at pleasure to persons freely chosen, who were not necessarily universal successors, if they ever were, and who nevertheless took under the name heredes. The word, which must have meant at first persons taking by descent, was extended to persons taking by purchase. /5/ If the word became enlarged in meaning, it is probably because the thought which it conveyed was turned to new uses. The transaction seems [357] to have fallen half-way between the institution of an heir and a sale. The later law of the Ripuarian Franks treats it more distinctly from the former point of view. It permits a man who has no sons to give all his property to whomsoever he chooses, whether relatives or strangers, as inheritance, either by way of adfathamire, as the Salic form was called, or by writing or delivery. /1/ The Lombards had a similar transfer, in which the donee was not only called heres, but was made liable like an heir for the debts of the donor on receiving the property after the donor's death. /2/2 By the Salic law a man who could not pay the wergeld was allowed to transfer formally his house-lot, and with it the liability. But the transfer was to the next of kin. /3/ The house-lot or family curtilage at first devolved strictly within the limits of the family. Here again, at least in England, freedom of alienation seems to have grown up by gradually increased latitude in the choice of successors. If we may trust the order of development to be noticed in the early charters, which it is hard to believe [358] accidental, although the charters are few, royal grants at first permitted an election of heirs among the kindred, and then extended it beyond them. In a deed of the year 679, the language is, "as it is granted so do you hold it and your posterity." One a century later reads, "which let him always possess, and after his death leave to which of his heirs he will." Another, "and after him with free power (of choice) leave to the man of his kin to whom he wishes to" (leave it). A somewhat earlier charter of 736 goes a step further: "So that as long as he lives he shall have the power of holding and possessing (and) of leaving it to whomsoever he choose, either in his lifetime, or certainly after his death." At the beginning of the ninth century the donee has power to leave the property to whomsoever he will, or, in still broader terms, to exchange or grant in his lifetime, and after his death to leave it to whom he chooses,--or to sell, exchange, and leave to whatsoever heir he chooses. /1/ This choice of heirs [359] recalls the quos heredes appellavit of the Salic law just mentioned, and may be compared with the language of a Norman charter of about the year 1190: "To W. and his heirs, to wit those whom he may constitute his heirs." /1/ A perfect example of a singular succession worked out by the fiction of kinship is to be found in the story of Burnt Njal, an Icelandic saga, which gives us a living picture of a society hardly more advanced than the Salian Franks, as we see them in the Lex Salica. A lawsuit was to be transferred by the proper plaintiff to another more versed in the laws, and better able to carry it on,--in fact, to an attorney. But a lawsuit was at that time the alternative of a feud, and both were the peculiar affair of the family concerned. /2/ Accordingly, when a suit for killing a member of the family was to be handed over to a stranger, the innovation had to be reconciled with the theory that such suit belonged only to the next of kin. Mord is to take upon himself Thorgeir's suit against Flosi for killing Helgi, and the form of transfer is described as follows. "Then Mord took Thorgeir by the hand and named two witnesses to bear witness, 'that Thorgeir Thofir's son hands me over a suit for manslaughter against Flosi Thord's son, to plead it for the slaying of Helgi Njal's son, with all those proofs which have to follow the suit. Thou handest over to me this suit to plead and to settle, and to enjoy all rights in it, as though I were the rightful next of kin. Thou handest it over to me by law; and I [360] take it from thee by law.'" Afterwards, these witnesses come before the court, and bear witness to the transfer in like words: "He handed over to him then this suit, with all the proofs and proceedings which belonged to the suit, he handed it over to him to plead and to settle, and to make use of all rights, as though he were the rightful next of kin. Thorgeir handed it over lawfully, and Mord took it lawfully." The suit went on, notwithstanding the change of hands, as if the next of kin were plaintiff. This is shown by a further step in the proceedings. The defendant challenges two of the court, on the ground of their connection with Mord, the transferee, by blood and by baptism. But Mord replies that this is no good challenge; for "he challenged them not for their kinship to the true plaintiff, the next of kin, but for their kinship to him who pleaded the suit." And the other side had to admit that Mord was right in his law. I now turn from the German to the Roman sources. These have the closest connection with the argument, because much of the doctrine to be found there has been transplanted unchanged into modern law. The early Roman law only recognized as relatives those who would have been members of the same patriarchal family, and under the same patriarchal authority, had the common ancestor survived. As wives passed into the families of their husbands, and lost all connection with that in which they were born, relationship through females was altogether excluded. The heir was one who traced his relationship to the deceased through males alone. With the advance of civilization this rule was changed. The praetor gave the benefits of the inheritance to the blood relations, although they were not heirs, and could [361] not be admitted to the succession according to the ancient law. /1/ But the change was not brought about by repealing the old law, which still subsisted under the name of the jus civile. The new principle was accommodated to the old forms by a fiction. The blood relation could sue on the fiction that he was an heir, although he was not one in fact. /2/ One the early forms of instituting an heir was a sale of the familia or headship of the family to the intended heir, with all its rights and duties. /3/ This sale of the universitas was afterwards extended beyond the case of inheritance to that of bankruptcy, when it was desired to put the bankrupt's property into the hands of a trustee for distribution. This trustee also could make use of the fiction, and sue as if he had been the bankrupt's heir. /4/ We are told by one of the great jurisconsults that in general universal successors stand in the place of heirs. /5/ The Roman heir, with one or two exceptions, was always a universal successor; and the fiction of heirship, as such, could hardly be used with propriety except to enlarge the sphere of universal successions. So far as it extended, however, all the consequences attached to the original fiction of identity between heir and ancestor followed as of course. [362] To recur to the case of rights acquired by prescription, every universal successor could add the time of his predecessor's adverse use to his own in order to make out the right. There was no addition, legally speaking, but one continuous possession. The express fiction of inheritance perhaps stopped here. But when a similar joinder of times was allowed between a legatee or devisee (legatarius) and his testator, the same explanation was offered. It was said, that, when a specific thing was left to a person by will, so far as concerned having the benefit of the time during which the testator had been in possession for the purpose of acquiring a title, the legatee was in a certain sense quasi an heir. /1/ Yet a legatarius was not a universal successor, and for most purposes stood in marked contrast with such successors. /2/ Thus the strict law of inheritance had made the notion familiar that one man might have the advantage of a position filled by another, although it was not filled, or was only partially filled, by himself; and the second fiction, by which the privileges of a legal heir in this respect as well as others had been extended to other persons, broke down the walls which might otherwise have confined those privileges to a single case. A new conception was introduced into the law, and there was nothing to hinder its further application. As has been shown, it was applied in terms to a sale of the universitas for business purposes, and to at least one case where the succession was confined to a single specific thing. Why, then, might not every gift or sale be regarded as a succession, so far as to insure the same advantages? [363] The joinder of times to make out a title was soon allowed between buyer and seller, and I have no doubt, from the language always used by the Roman lawyers, that it was arrived at in the way I have suggested. A passage from Scaevola (B. C. 30) will furnish sufficient proof. Joinder of possessions, he says, that is, the right to add the time of one's predecessor's holding to one's own, clearly belongs to those who succeed to the place of others, whether by contract or by will: for heirs and those who are treated as holding the place of successors are allowed to add their testator's possession to their own. Accordingly, if you sell me a slave I shall have the benefit of your holding. /1/ The joinder of times is given to those who succeed to the place of another. Ulpian cites a like phrase from a jurisconsult of the time of the Antonines,--"to whose place I have succeeded by inheritance, or purchase, or any other right." /2/ Succedere in locum aliorum, like sustinere personam, is an expression of the Roman lawyers for those continuations of one man's legal position by another of which the type was the succession of heir to ancestor. Suecedere alone is used in the sense of inherit, /3/ and successio in that of "inheritance." /4/ The succession par excellence was the inheritance; and it is believed that scarcely any instance will be found in the Roman sources where "succession" does not convey that analogy, and indicate the partial [364] assumption, at least, of a persona formerly sustained by another. It clearly does so in the passage before us. But the succession which admits a joinder of times is not hereditary succession alone. In the passage which has been cited Scaevola says that it may be by contract or purchase, as well as by inheritance or will. It may be singular, as well as universal. The jurists often mention antithetically universal successions and those confined to a single specific thing. Ulpian says that a man succeeds to another's place, whether his succession be universal or to the single object. /1/ If further evidence were wanting for the present argument, it would be found in another expression of Ulpian's. He speaks of the benefit of joinder as derived from the persona of the grantor. "He to whom a thing is granted shall have the benefit of joinder from the persona of his grantor." /2/ A benefit cannot be derived from a persona except by sustaining it. It farther appears pretty plainly from Justinian's Institutes and the Digest, that the benefit was not extended to purchasers in all cases until a pretty late period. /3/ Savigny very nearly expressed the truth when he said, somewhat broadly, that "every accessio, for whatever purpose, presupposes nothing else than a relation of juridical [365] succession between the previous and present possessor. For succession does not apply to possession by itself." /1/ And I may add, by way of further explanation, that every relation of juridical succession presupposes either an inheritance or a relation to which, so far as it extends, the analogies of the inheritance may be applied. The way of thinking which led to the accessio or joinder of times is equally visible in other cases. The time during which a former owner did not use an casement was imputed to the person who had succeeded to his place. /2/ The defence that the plaintiff had sold and delivered the thing in controversy was available not only to the purchaser, but to his heirs or to a second purchaser, even before delivery to him, against the successors of the seller, whether universal or only to the thing in question. /3/ If one used a way wrongfully as against the predecessor in title, it was wrongful as against the successor, whether by inheritance, purchase, or any other right. /4/ The formal oath of a party to an action was conclusive in favor of his successors, universal or singular. /5/ Successors by purchase or gift had the [366] benefit of agreements made with the vendor. /1/ A multitude of general expressions show that for most purposes, whether of action or defence, the buyer stood in the shoes of the seller, to use the metaphor of our own law. /2/ And what is more important than the result, which often might have been reached by other ways, the language and analogies are drawn throughout from the succession to the inheritance. Thus understood, there could not have been a succession between a person dispossessed of a thing against his will and the wrongful possessor. Without the element of consent there is no room for the analogy just explained. Accordingly, it is laid down that there is no joinder of times when the possession is wrongful, /3/ and the only enumerated means of succeeding in rem are by will, sale, gift, or some other right. The argument now returns to the English law, fortified with some general conclusions. It has been shown that in both the systems from whose union our law arose the rules governing conveyance, or the transfer of specific [367] objects between living persons, were deeply affected by notions drawn from inheritance. It had been shown previously that in England the principles of inheritance applied directly to the singular succession of the heir to a specific fee, as well as to the universal succession of the executor. It would be remarkable, considering their history, if the same principles had not affected other singular successions also. It will soon appear that they have. And not to be too careful about the order of proof, I will first take up the joinder of times in prescription, as that has just been so fully discussed. The English law of the subject is found on examination to be the same as the Roman in extent, reason, and expression. It is indeed largely copied from that source. For servitudes, such as rights of way, light, and the like, form the chief class of prescriptive rights, and our law of servitudes is mainly Roman. Prescriptions, it is said, "are properly personal, and therefore are always alleged in the person of him who prescribes, viz. that he and all those whose estate he hath, &c.; therefore, a bishop or a parson may prescribe,... for there is a perpetual estate, and a perpetual succession and the successor hath the very same estate which his predecessor had, for that continues, though the person alters, like the case of the ancestor and the heir." /1/ So in a modern case, where by statute twenty years' dispossession extinguished the owner's title, the Court of Queen's Bench said that probably the right would be transferred to the possessor "if the same person, or several persons, claiming one from the other by descent, will [368] or conveyance, had been in possession for the twenty years." "But.... such twenty years' possession must be either by the same person, or several persons claiming one from the other, which is not the case here." /1/ In a word, it is equally clear that the continuous possession of privies in title, or, in Roman phrase, successors, has all the effect of the continuous possession of one, and that such an effect is not attributed to the continuous possession of different persons who are not in the same chain of title. One who dispossesses another of land cannot add the time during which his disseisee has used a way to the period of his own use, while one who purchased can. /2/ The authorities which have been quoted make it plain that the English law proceeds on the same theory as the Roman. One who buys land of another gets the very same estate which his seller had. He is in of the same fee, or hereditas, which means, as I have shown, that he sustains the same persona. On the other hand, one who wrongfully dispossesses another,--a disseisor,--gets a different estate, is in of a new fee, although the land is the same; and much technical reasoning is based upon this doctrine. In the matter of prescription, therefore, buyer and seller were identified, like heir and ancestor. But the question [369] remains whether this identification bore fruit in other parts of the law also, or whether it was confined to one particular branch, where the Roman law was grafted upon the English stock. There can be no doubt which answer is most probable, but it cannot be proved without difficulty. As has been said, the heir ceased to be the general representative of his ancestor at an early date. And the extent to which even he was identified came to be a matter of discussion. Common sense kept control over fiction here as elsewhere in the common law. But there can be no doubt that in matters directly concerning the estate the identification of heir and ancestor has continued to the present day; and as an estate in fee simple has been shown to be a distinct persona, we should expect to find a similar identification of buyer and seller in this part of the law, if anywhere. Where the land was devised by will, the analogy applied with peculiar ease. For although there is no difference in principle between a devise of a piece of land by will and a conveyance of it by deed, the dramatic resemblance of a devisee to an heir is stronger than that of a grantee. It will be remembered that one of the Roman jurists said that a legatarius (legatee or devisee) was in a certain sense quasi heres. The English courts have occasionally used similar expressions. In a case where a testator owned a rent, and divided it by will among his sons, and then one of the sons brought debt for his part, two of the judges, while admitting that the testator could not have divided the tenant's liability by a grant or deed in his lifetime, thought that it was otherwise with regard to a division by will. Their reasoning was that "the devise is quasi [370] an act of law, which shall inure without attornment, and shall make a sufficient privity, and so it may well be apportioned by this means." /1/ So it was said by Lord Ellenborough, in a case where a lessor and his heirs were entitled to terminate a lease on notice, that a devisee of the land as heres factus would be understood to have the same right. /2/ But wills of land were only exceptionally allowed by custom until the reign of Henry VIII., and as the main doctrines of conveyancing had been settled long before that time, we must look further back and to other sources for their explanation. We shall find it in the history of warranty. This, and the modern law of covenants running with the land, will be treated in the next Lecture. [371] LECTURE XI. -- SUCCESSIONS.--II. INTER VIVOS. The principal contracts known to the common law and suable in the King's Courts, a century after the Conquest, were suretyship and debt. The heir, as the general representative of his ancestor's rights and obligations, was liable for his debts, and was the proper person to sue for those which were due the estate. By the time of Edward III. this had changed. Debts had ceased to concern the heir except secondarily. The executor took his place both for collection and payment. It is said that even when the heir was bound he could not be sued except in case the executor had no assets. /1/ But there was another ancient obligation which had a different history. I refer to the warranty which arose upon the transfer of property. We should call it a contract, but it probably presented itself to the mind of Glanvill's predecessors simply as a duty or obligation attached by law to a transaction which was directed to a different point; just as the liability of a bailee, which is now treated as arising from his undertaking, was originally raised by the law out of the position in which he stood toward third persons. After the Conquest we do not hear much of warranty, except in connection with land, and this fact will at once [372] account for its having had a different history from debt. The obligation of warranty was to defend the title, and, if the defence failed, to give to the evicted owner other land of equal value. If an ancestor had conveyed lands with warranty, this obligation could not be fulfilled by his executor, but only by his heir, to whom his other lands had descended. Conversely as to the benefit of warranties made to a deceased grantee, his heir was the only person interested to enforce such warranties, because the land descended to him. Thus the heir continued to represent his ancestor in the latter's rights and obligations by way of warranty, after the executor had relieved him of the debts, just as before that time he had represented his ancestor in all respects. If a man was sued for property which he had bought from another, the regular course of litigation was for the defendant to summon in his seller to take charge of the defence, and for him, in turn, to summon in his, if he had one, and so on until a party was reached in the chain of title who finally took the burden of the case upon himself. A contrast which was early stated between the Lombard and the Roman law existed equally between the Anglo-Saxon and the Roman. It was said that the Lombard presents his grantor, the Roman stands in his grantor's shoes,--Langobardus dat auctorem, Romanus stat loco auctoris. /1/ Suppose, now, that A gave land to B, and B conveyed over to C. If C was sued by D, claiming a better title, C practically got the benefit of A's warranty, /2/ because, when he summoned B, B would summon A, and thus A [373] would defend the case in the end. But it might happen that between the time when B conveyed to C, and the time when the action was begun, B had died. If he left an heir, C might still be protected. But supposing B left no heir, C got no help from A, who in the other event would have defended his suit. This no doubt was the law in the Anglo-Saxon period, but it was manifestly unsatisfactory. We may conjecture, with a good deal of confidence, that a remedy would be found as soon as there was machinery to make it possible. This was furnished by the Roman law. According to that system, the buyer stood in the place of his seller, and a fusion of the Roman with the Anglo-Saxon rule was all that was needed. Bracton, who modelled his book upon the writings of the mediaeval civilians, shows how this thought was used. He first puts the case of a conveyance with the usual clause binding the grantor and his heirs to warrant and defend the grantee and his heirs. He then goes on: "Again one may make his gift greater and make other persons quasi heirs [of his grantee], although, in fact, they are not heirs, as when he says in the gift, to have and to hold to such a one and his heirs, or to whomsoever he shall choose to give or assign the said land, and I and my heirs will warrant to the said so and so, and his heirs, or to whomsoever he shall choose to give or assign the said land, and their heirs, against all persons. In which case if the grantee shall have given or assigned the land, and then have died without heirs, the [first] grantor and his heirs begin to hold the place of the first grantee and his heirs, and are in place of the first grantee's heir (pro herede) so far as concerns warranting to his assigns and their heirs [374] according to the clause contained in the first grantor's charter, which would not be but for the mention of assigns in the first gift. But so long as the first grantee survives, or his heirs, they are held to warranty, and not the first grantor." /1/ Here we see that, in order to entitle the assign to the benefit of the first grantor's warranty, assigns must be mentioned in the original grant and covenant. The scope of the ancient obligation was not extended without the warrantor's assent. But when it was extended, it was not by a contrivance like a modern letter of credit. Such a conception would have been impossible in that stage of the law. By mentioning assigns the first grantor did not offer a covenant to any person who would thereafter purchase the land. If that had been the notion, there would have been a contract directly binding the first grantor to the assign, as soon as the land was sold, and thus there would have been two warranties arising from the same clause,--one to the first grantee, a second to the assign. But in fact the assign recovered on the original warranty to the first grantee. /2/ He could only come on the first grantor after a failure of his immediate grantor's heirs. The first grantor by mentioning assigns simply enlarged the limits of his grantee's succession. The assign could vouch the first grantor only on the principles of succession. That is to say, he could only do so when, by the failure of the first grantee's blood, the first grantee's feudal relation to the first grantor, his persona, came to be sustained by the assign. /3/ [375] This was not only carrying out the fiction with technical consistency, but was using it with good sense, as fictions generally have been used in the English law. Practically it made little difference whether the assign got the benefit of the first grantor's warranty mediately or immediately, if he got it. The trouble arose where he could not summon the mesne grantor, and the new right was given him for that case alone. Later, the assign did not have to wait for the failure of his immediate grantor's blood, but could take advantage of the first grantor's warranty from the beginning. /1/ If it should be suggested that what has been said goes to show that the first grantor's duty to warrant arose from the assign's becoming his man and owing homage, the answer is that he was not bound unless he had mentioned assigns in his grant, homage or no homage. In this Bracton is confirmed by all the later authorities. /2/ Another rule on which there are vast stores of forgotten learning will show how exactly the fiction fell in with the earlier law. Only those who were privy in estate with the person to whom the warranty was originally given, could vouch the original warrantor. Looking back to the early [376] procedure, it will be seen that of course only those in the same chain of title could even mediately get the benefit of a former owner's warranty. The ground on which a man was bound to warrant was that he had conveyed the property to the person who summoned him. Hence a man could summon no one but his grantor, and the successive vouchers came to an end when the last vouchee could not call on another from whom he had bought. Now when the process was abridged, no persons were made liable to summons who would not have been liable before. The present owner was allowed to vouch directly those who otherwise would have been indirectly bound to defend his title, but no others. Hence he could only summon those from whom his grantor derived his title. But this was equally well expressed in terms of the fiction employed. In order to vouch, the present owner must have the estate of the person to whom the warranty was made. As every lawyer knows, the estate does not mean the land. It means the status or persona in regard to that land formerly sustained by another. The same word was used in alleging a right by prescription, "that he and those whose estate he hath have for time whereof memory runneth not to the contrary," &c.; and it will be remembered that the word corresponds to the same requirement of succession there. To return to Bracton, it must be understood that the description of assigns as quasi heredes is not accidental. He describes them in that way whenever he has occasion to speak of them. He even pushes the reasoning drawn from the analogy of inheritance to extremes, and refers to it in countless passages. For instance: "It should be noted that of heirs some are true heirs and some quasi [377] heirs, in place of heirs, &c.; true heirs by way of succession quasi heirs, &c. by the form of the gift; such as assigns," &c. /1/ If it should be suggested that Bracton's language is only a piece of mediaeval scholasticism, there are several answers. In the first place it is nearly contemporaneous with the first appearance of the right in question. This is shown by his citing authority for it as for something which might be disputed. He says, "And that warranty must be made to assigns according to the form of the gift is proved [by a case] in the circuit of W. de Ralegh, about the end of the roll,"&c. /2/ It is not justifiable to assume that a contemporary explanation of a new rule had nothing to do with its appearance. Again, the fact is clear that the assign got the benefit of the warranty to the first grantee, not of a new one to himself, as has been shown, and Bracton's explanation of how this was worked out falls in with what has been seen of the course of the German and Anglo-Saxon law, and with the pervading thought of the Roman law. Finally, and most important, the requirement that the assign should be in of the first grantee's estate has remained a requirement from that day to this. The fact that the same thing is required in the same words as in prescription goes far to show that the same technical thought has governed both. I have said, Glanvill's predecessors probably regarded warranty as an obligation incident to a conveyance, rather than as a contract. But when it became usual to insert the undertaking to warrant in a deed or charter of feoffment, it lost something of its former isolation as a duty standing by itself, and admitted of being [378] generalized. It was a promise by deed, and a promise by deed was a covenant. /1/ This was a covenant having peculiar consequences attached to it, no doubt. It differed also in the scope of its obligation from some other covenants, as will be shown hereafter. But still it was a covenant, and could sometimes be sued on as such. It was spoken of in the Year Books of Edward III. as a covenant which "falls in the blood," /2/ as distinguished from those where the acquittance fell on the land, and not on the person. /3/ The importance of this circumstance lies in the working of the law of warranty upon other covenants which took its place. When the old actions for land gave way to more modern and speedier forms, warrantors were no longer vouched in to defend, and if a grantee was evicted, damages took the place of a grant of other land. The ancient warranty disappeared, and was replaced by the covenants which we still find in our deeds, including the covenants for seisin, for right to convey, against incumbrances, for quiet enjoyment, of warranty, and for further assurance. But the principles on which an assign could have the benefit of these covenants were derived from those which governed warranty, as any one may see by looking at the earlier decisions. For instance, the question, what was a sufficient assignment to give an assign the benefit of a covenant for quiet enjoyment, was argued and decided on the authority of the old cases of warranty. /4/ [379] The assign, as in warranty, came in under the old covenant with the first covenantee, not by any new right of his own. Thus, in an action by an assign on a covenant for further assurance, the defendant set up a release by the original covenantee after the commencement of the suit. The court held that the assignee should have the benefit of the covenant. "They held, that although the breach was in the time of the assignee, yet if the release had been by the covenantee (who is a party to the deed, and from whom the plaintiff derives) before any breach, or before the suit commenced, it had been a good bar to the assignee from bringing this writ of covenant. But the breach of the covenant being in the time of the assignee,... and the action brought by him, and so attached in his person, the covenantee cannot release this action wherein the assignee is interested." /1/ The covenantee even after assignment remains the legal party to the contract. The assign comes in under him, and does not put an end to his control over it, until by breach and action a new right attaches in the assign's person, distinct from the rights derived from the persona of his grantor. Later, the assign got a more independent standing, as the original foundation of his rights sunk gradually out of sight, and a release after assignment became ineffectual, at least in the case of a covenant to pay rent. /2/ Only privies in estate with the original covenantee can have the benefit of covenants for title. It has been shown that a similar limitation of the benefits of the ancient [380] warranty was required by its earlier history before the assign was allowed to sue, and that the fiction by which he got that right could not extend it beyond that limit. This analogy also was followed. For instance, a tenant in tail male made a lease for years with covenants of right to let and for quiet enjoyment, and then died without issue male. The lessee assigned the lease to the plaintiff. The latter was soon turned out, and thereupon brought an action upon the covenant against the executor of the lessor. It was held that he could not recover, because he was not privy in estate with the original covenantee. For the lease, which was the original covenantee's estate, was ended by the death of the lessor and termination of the estate tail out of which the lease was granted, before the form of assignment to the plaintiff. /1/ The only point remaining to make the analogy between covenants for title and warranty complete was to require assigns to be mentioned in order to enable them to sue. In modern times, of course, such a requirement, if it should exist, would be purely formal, and would be of no importance except as an ear-mark by which to trace the history of a doctrine. It would aid our studies if we could say that wherever assigns are to get the benefit of a covenant as privies in estate with the covenantee, they must be mentioned in the covenant. Whether such a requirement does exist or not would be hard to tell from the decisions alone. It is commonly supposed not to. But the popular opinion on this trifling point springs from a failure to understand one of the great antinomies of the law, which must now be explained. So far as we have gone, we have found that, wherever [381] one party steps into the rights or obligations of another, without in turn filling the situation of fact of which those rights or obligations are the legal consequences, the substitution is explained by a fictitious identification of the two individuals, which is derived from the analogy of the inheritance. This identification has been seen as it has been consciously worked out in the creation of the executor, whose entire status is governed by it. It has been seen still consciously applied in the narrower sphere of the heir. It has been found hidden at the root of the relation between buyer and seller in two cases at least, prescription and warranty, when the history of that relation is opened to a sufficient depth. But although it would be more symmetrical if this analysis exhausted the subject, there is another class of cases in which the transfer of rights takes place upon a wholly different plan. In explaining the succession which is worked out between buyer and seller for the purpose of creating a prescriptive right, such as a right of way over neighboring land to the land bought and sold, it was shown that one who, instead of purchasing the land, had wrongfully possessed himself of it by force, would not be treated as a successor, and would get no benefit from the previous use of the way by his disseisee. But when the former possessor has already gained a right of way before he is turned out, a new principle comes into operation. If the owner of the land over which the way ran stopped it up, and was sued by the wrongful possessor, a defence on the ground that the disseisor had not succeeded to the former owner's rights would not prevail. The disseisor would be protected in his possession of the land against all but the rightful owner, and he would equally be protected [382] in his use of the way. This rule of law does not stand on a succession between the wrongful possessor and the owner, which is out of the question. Neither can it be defended on the same ground as the protection to the occupation of the land itself. That ground is that the law defends possession against everything except a better title. But, as has been said before, the common law does not recognize possession of a way. A man who has used a way ten years without title cannot sue even a stranger for stopping it. He was a trespasser at the beginning, he is nothing but a trespasser still. There must exist a right against the servient owner before there is a right against anybody else. At the same time it is clear that a way is no more capable of possession because somebody else has a right to it, than if no one had. How comes it, then, that one who has neither title nor possession is so far favored? The answer is to be found, not in reasoning, but in a failure to reason. In the first Lecture of this course the thought with which we have to deal was shown in its theological stage, to borrow Comte's well-known phraseology, as where an axe was made the object of criminal process; and also in the metaphysical stage, where the language of personification alone survived, but survived to cause confusion of reasoning. The case put seems to be an illustration of the latter. The language of the law of easements was built up out of similes drawn from persons at a time when the noxoe deditio was still familiar; and then, as often happens, language reacted upon thought, so that conclusions were drawn as to the rights themselves from the terms in which they happened to be expressed. When one estate was said to be enslaved to another, or a right of way was said to be a quality or [383] incident of a neighboring piece of land, men's minds were not alert to see that these phrases were only so many personifying metaphors, which explained nothing unless the figure of speech was true. Rogron deduced the negative nature of servitudes from the rule that the land owes the services, not the person,--Proedium non persona servit. For, said Rogron, the land alone being bound, it can only be bound passively. Austin called this an "absurd remark." /1/ But the jurists from whom we have inherited our law of easements were contented with no better reasoning. Papinian himself wrote that servitudes cannot be partially extinguished, because they are due from lands, not persons. /2/ Celsus thus decides the case which I took for my illustration: Even if possession of a dominant estate is acquired by forcibly ejecting the owner, the way will be retained; since the estate is possessed in such quality and condition as it is when taken. /3/ The commentator Godefroi tersely adds that there are two such conditions, slavery and freedom; and his antithesis is as old as Cicero. /4/ So, in another passage, Celsus asks, What else are the rights attaching to land but qualities of that land? /5/ So Justinian's Institutes speak of servitudes which inhere in buildings. /6/ So Paulus [384] speaks of such rights as being accessory to bodies. "And thus," adds Godefroi, "rights may belong to inanimate things." /1/ It easily followed from all this that a sale of the dominant estate carried existing easements, not because the buyer succeeded to the place of the seller, but because land is bound to land. /2/ All these figures import that land is capable of having rights, as Austin recognizes. Indeed, he even says that the land "is erected into a legal or fictitious person, and is styled 'praedium dominans.'" /3/ But if this means anything more than to explain what is implied by the Roman metaphors, it goes too far. The dominant estate was never "erected into a legal person," either by conscious fiction or as a result of primitive beliefs. /4/ It could not sue or be sued, like a ship in the admiralty. It is not supposed that its possessor could maintain an action for an interference with an easement before his time, as an heir could for an injury to property of the hereditas jacens. If land had even been systematically treated as capable of acquiring rights, the time of a disseisee might have been added to that Of the wrongful occupant, on the ground that the land, and not this or that individual, was gaining the easement, and that long association between the enjoyment of the privilege and the land was sufficient, which has never been the law. All that can be said is, that the metaphors and similes employed naturally led to the rule which has prevailed, [385] and that, as this rule was just as good as any other, or at least was unobjectionable, it was drawn from the figures of speech without attracting attention, and before any one had seen that they were only figures, which proved nothing and justified no conclusion. As easements were said to belong to the dominant estate, it followed that whoever possessed the land had a right of the same degree over what was incidental to it. If the true meaning had been that a way or other easement admits of possession, and is taken possession of with the land to which it runs, and that its enjoyment is protected on the same grounds as possession in other cases, the thought could have been understood. But that was not the meaning of the Roman law, and, as has been shown, it is not the doctrine of ours. We must take it that easements have become an incident of land by an unconscious and unreasoned assumption that a piece of land can have rights. It need not be said that this is absurd, although the rules of law which are based upon it are not so. Absurd or not, the similes as well as the principles of the Roman law reappear in Bracton. He says, "The servitude by which land is subjected to [other] land, is made on the likeness of that by which man is made the slave of man." /1/ "For rights belong to a free tenement, as well as tangible things.... They may be called rights or liberties with regard to the tenements to which they are owed, but servitudes with regard to the tenements by which they are owed.... One estate is free, the other subjected to slavery." /2/ "[A servitude] may be called an arrangement by which house is subjected to house, farm to [386] farm, holding to holding." /1/ No passage has met my eye in which Bracton expressly decides that an easement goes with the dominant estate upon a disseisin, but what he says leaves little doubt that he followed the Roman law in this as in other things. The writ against a disseisor was for "so much land and its appurtenances," /2/ which must mean that he who had the land even wrongfully had the appurtenances. So Bracton says an action is in rem "whether it is for the principal thing, or for a right which adheres to the thing,... as when one sues for a right of way, ... since rights of this sort are all incorporeal things, and are quasi possessed and reside in bodies, and cannot be got or kept without the bodies in which they inhere, nor in any way had without the bodies to which they belong." /3/ And again, "Since rights do not admit of delivery, but are transferred with the thing in which they are, that is, the bodily thing, he to whom they are transferred forthwith has a quasi possession of those rights as soon as he has the body in which they are." /4/ There is no doubt about the later law, as has been said at the outset. We have thus traced two competing and mutually inconsistent principles into our law. On the one hand is the conception of succession or privity; on the other, that of rights inhering in a thing. Bracton seems to have vacillated a little from a feeling of the possibility of conflict between the two. The benefit of a warranty was confined to those who, by the act and consent of the [387] grantee, succeeded to his place. It did not pass to assigns unless assigns were mentioned. Bracton supposes grants of easements with or without mention of assigns, which looks as if he thought the difference might be material with regard to easements also. He further says, that if an easement be granted to A, his heirs and assigns, all such by the form of the grant are allowed the use in succession, and all others are wholly excluded. /1/ But he is not speaking of what the rights of a disseisor would be as against one not having a better title, and he immediately adds that they are rights over a corporeal object belonging to a corporeal object. Although it may be doubted whether the mention of assigns was ever necessary to attach an easement to land, and although it is very certain that it did not remain so long, the difficulty referred to grew greater as time went on. It would have been easily disposed of if the only rights which could be annexed to land were easements, such as a right of way. It then might have been said that these were certain limited interests in land, less than ownership in extent, but like it in kind, and therefore properly transferred by the same means that ownership was. A right of way, it might have been argued, is not to be approached from the point of view of contract. It does not presuppose any promise on the part of the servient owner. His obligation, although more troublesome to him than to others, is the same as that of every one else. It is the purely negative duty not to obstruct or interfere with a right of property. /2/ [388] But although the test of rights going with the land may have been something of that nature, this will not help us to understand the cases without a good deal of explanation. For such rights might exist to active services which had to be performed by the person who held the servient estate. It strikes our ear strangely to hear a right to services from an individual called a right of property as distinguished from contract. Still this will be found to have been the way in which such rights were regarded. Bracton argues that it is no wrong to the lord for the tenant to alienate land held by free and perfect gift, on the ground that the land is bound and charged with the services into whose hands soever it may come. The lord is said to have a fee in the homage and services; and therefore no entry upon the land which does not disturb them injures him. /1/ It is the tenement which imposes the obligation of homage, /2/ and the same thing is true of villein and other feudal services. /3/ The law remained unchanged when feudal services took the form of rent. /4/ Even in our modern terms for years rent is still treated as something issuing out of the leased premises, so that to this day, although, if you hire a whole house and it burns down, you have to pay without abatement, because you have the land out of which the rent issues, yet if you only hire a suite of rooms and they are burned, you pay rent no longer, because you no longer have the tenement out of which it comes. /5/ [389] It is obvious that the foregoing reasoning leads to the conclusion that a disseisor of the tenant would be bound as much as the tenant himself, and this conclusion was adopted by the early law. The lord could require the services, /1/ or collect the rent /2/ of any one who had the land, because, as was said in language very like Bracton's, "the charge of the rent goes with the land." /3/ Then as to the right to the rent. Rent was treated in early law as a real right, of which a disseisin was possible, and for which a possessory action could be brought. If, as was very frequently the case, the leased land lay within a manor, the rent was parcel of the manor, /4/ so that there was some ground for saying that one who was seised of the manor, that is, who possessed the lands occupied by the lord of the manor, and was recognized by the tenants as lord, had the rents as incident thereto. Thus Brian, Chief Justice of England under Henry VII., says, "If I am disseised of a manor, and the tenants pay their rent to the disseisor, and then I re-enter, I shall not have the back rent of my tenants which they have paid to my disseisor, but the disseisor shall pay for all in trespass or assize." /5/ This opinion was evidently founded on the notion that the rent was attached to the chief land like an easement. Sic fit ut debeantur rei a re. /6/ Different principles might have applied when the rent was not parcel of a manor, and was only part of the reversion; that is, part of the landlord's fee or estate out of [390] which the lease was carved. If the lease and rent were merely internal divisions of that estate, the rent could not be claimed except by one who was privy to that estate. A disseisor would get a new and different fee, and would not have the estate of which the rent was part. And therefore it would seem that in such a case the tenant could refuse to pay him rent, and that payment to him would be no defence against the true owner. /1/ Nevertheless, if the tenant recognized him, the disseisor would be protected as against persons who could not show a better title. /2/ Furthermore, the rent was so far annexed to the land that whoever came by the reversion lawfully could collect it, including the superior lord in case of escheat. /3/ Yet escheat meant the extinction of the fee of which the lease and rent were parts, and although Bracton regarded the lord as coming in under the tenant's title pro herede, in privity, it was soon correctly settled that he did not, but came in paramount. This instance, therefore, comes very near that of a disseisor. Services and rent, then, were, and to some extent are still, dealt with by the law from the point of view of property. They were things which could be owned and transferred like other property. They could be possessed even by wrong, and possessory remedies were given for them. No such notion was applied to warranties, or to any right which was regarded wholly from the point of view of contract. And when we turn to the history of those remedies for rent which sounded in contract, we find that they were so regarded. The actions of debt and covenant [391] could not be maintained without privity. In the ninth year of Henry VI. /1/ it was doubted whether an heir having the reversion by descent could have debt, and it was held that a grantee of the reversion, although he had the rent, could not have that remedy for it. A few years later, it was decided that the heir could maintain debt, /2/ and in Henry VII.'s reign the remedy was extended to the devisee, /3/ who, as has been remarked above, seemed more akin to the heir than a grantee, and was more easily likened to him. It was then logically necessary to give assigns the same action, and this followed. /4/ The privity of contract followed the estate, so that the assignee of the reversion could sue the person then holding the term. /5/ On like grounds he was afterwards allowed to maintain covenant. /6/ But these actions have never lain for or against persons not privy in estate with the lessor and lessee respectively, because privity to the contract could never be worked out without succession to the title. /7/ However, all these niceties had no application to the old freehold rents of the feudal period, because the contractual remedies did not apply to them until the time of Queen Anne. /8/ The freehold rent was just as much real estate as an acre of land, and it was sued for by the similar remedy of an assize, asking to be put back into possession. [392] The allowance of contractual remedies shows that rent and feudal services of that nature, although dealt with as things capable of possession, and looked at generally from the point of view of property rather than of contract, yet approach much nearer to the nature of the latter than a mere duty not to interfere with a way. Other cases come nearer still. The sphere of prescription and custom in imposing active duties is large in early law. Sometimes the duty is incident to the ownership of certain land; sometimes the right is, and sometimes both are, as in the case of an easement. When the service was for the benefit of other land, the fact that the burden, in popular language, fell upon one parcel, was of itself a reason for the benefit attaching to the other. Instances of different kinds are these. A parson might be bound by custom to keep a bull and a boar for the use of his parish. /1/ A right could be attached to a manor by prescription to have a convent sing in the manor chapel. /2/ A right might be gained by like means to have certain land fenced by the owner of the neighboring lot. /3/ Now, it may readily be conceded that even rights like the last two, when attached to land, were looked at as property, and were spoken of as the subject of grant. /4/ It may be conceded that, in many cases where the statement sounds strange to modern ears, the obligation was regarded as failing on the land alone, and not on the person of the [393] tenant. And it may be conjectured that this view arose naturally and reasonably from there having been originally no remedy to compel performance of such services, except a distress executed on the servient land. /1/ But any conjectured distinction between obligations for which the primitive remedy was distress alone, and others, if it ever existed, must soon have faded from view; and the line between those rights which can be deemed rights of property, and those which are mere contracts, is hard to see, after the last examples. A covenant to repair is commonly supposed to be a pure matter of contract. What is the difference between a duty to repair, and a duty to fence? The difficulty remains almost as great as ever of finding the dividing line between the competing principles of transfer,--succession on the one side, and possession of dominant land on the other. If a right in the nature of an easement could be attached to land by prescription, it could equally be attached by grant. If it went with the land in one case, even into the hands of a disseisor, it must have gone with it in the other. No satisfactory distinction could be based on the mode of acquisition, /2/ nor was any attempted. As the right was not confined to assigns, there was no need of mentioning assigns. /3/ In modern times, at least, if not in early law, such rights can be created by covenant as well [394] as by grant. /1/ And, on the other hand, it is ancient law that an action of covenant may be maintained upon an instrument of grant. /2/ The result of all this was that not only a right created by covenant, but the action of covenant itself, might in such cases go to assigns, although not mentioned, at a time when such mention was essential to give them the benefit of a warranty. Logically, these premises led one step farther, and not only assigns not named, but disseisors, should have been allowed to maintain their action on the contract, as they had the right arising out of it. Indeed, if the plaintiff had a right which when obtained by grant would have entitled him to covenant, it was open to argument that he should be allowed the same action when he had the right by prescription, although, as has been seen in the case of rent, it did not follow in practice from a man's having a right that he had the contractual remedies for it. /3/ Covenant required a specialty, but prescription was said to be a sufficiently good specialty. /4/ Where, then, was the line to be drawn between covenants that devolved only to successors, and those that went with the land? The difficulty becomes more striking upon further examination of the early law. For side by side with the personal warranty which has been discussed hitherto, there was another warranty which has not yet been mentioned [395] by which particular land alone was bound. /1/ The personal warranty bound only the warrantor and his heirs. As was said in a case of the time of Edward I., "no one can bind assigns to warranty, since warranty always extends to heirs who claim by succession and not by assignment." /2/ But when particular land was bound, the warranty went with it, even into the hands of the King, because, as Bracton says, the thing goes with its burden to every one. /3/ Fleta writes that every possessor will be held. /4/ There cannot be a doubt that a disseisor would have been bound equally with one whose possession was lawful. We are now ready for a case /5/ decided under Edward III., which has been discussed from the time of Fitzherbert and Coke down to Lord St. Leonards and Mr. Rawle, which is still law, and is said to remain still unexplained. /6/ It shows the judges hesitating between the two conceptions to which this Lecture has been devoted. If they are understood, I think the explanation will be clear. Pakenham brought covenant as heir of the covenantee against a prior, for breach of a covenant made by the defendant's predecessor with the plaintiff's great-grandfather, that the prior and convent should sing every week in a chapel in his manor, for him and his servants. The defendant first pleaded that the plaintiff and his servants were not dwelling within the manor; but, not daring to [396] rest his case on that, he pleaded that the plaintiff was not heir, but that his elder brother was. The plaintiff replied that he was tenant of the manor, and that his great-grandfather enfeoffed a stranger, who enfeoffed the plaintiff and his wife; and that thus the plaintiff was tenant of the manor by purchase, and privy to the ancestor; and also that the services had been rendered for a time whereof the memory was not. It is evident from these pleadings that assigns were not mentioned in the covenant, and so it has always been taken. /1/ It also appears that the plaintiff was trying to stand on two grounds; first, privity, as descendant and assign of the covenantee; second, that the service was attached to the manor by covenant or by prescription, and that he could maintain covenant as tenant of the manor, from whichever source the duty arose. Finchden, J. puts the case of parceners making partition, and one covenanting with the other to acquit of suit. A purchaser has the advantage of the covenant. Belknap, for the defendants, agrees, but distinguishes. In that case the acquittance falls on the land, and not on the person. /2/ (That is to say, such obligations follow the analogy of easements, and, as the burden falls on the quasi servient estate, the benefit goes with the dominant land to assigns, whether mentioned or not, and they are not considered from the point of view of contract at all. Warranty, on the other hand, is a contract pure and simple, and lies in the blood,--falls on the person, not on the land. /3/) Finchden: a fortiori in this case; for there the action [397] was maintained because the plaintiff was tenant of the land from which the suit was due, and here he is tenant of the manor where the chapel is. Wichingham, J.: If the king grants warren to another who is tenant of the manor, he shall have warren, &c.; but the warren will not pass by the grant [of the manor], because the warren is not appendant to the manor. No more does it seem the services are here appendant to the manor. Thorpe, C. J., to Belknap: "There are some covenants on which no one shall have an action, but the party to the covenant, or his heir, and some covenants have inheritance in the land, so that whoever has the land by alienation, or in other manner, shall have action of covenant; [or, as it is stated in Fitzherbert's Abridgment, /1/ the inhabitants of the land as well as every one who has the land, shall have the covenant;] and when you say he is not heir, he is privy of blood, and may be heir: /2/ and also he is tenant of the land, and it is a thing which is annexed to the chapel, which is in the manor, and so annexed to the manor, and so he has said that the services have been rendered for all time whereof there is memory, whence it is right this action should be maintained." Belknap denied that the plaintiff counted on such a prescription; but Thorpe said he did, and we bear record of it, and the case was adjourned. /3/ It will be seen that the discussion followed the lines marked out by the pleading. One judge thought that [398] the plaintiff was entitled to recover as tenant of the manor. The other puisne doubted, but agreed that the case must be discussed on the analogy of easements. The Chief Justice, after suggesting the possibility of sufficient privity on the ground that the plaintiff was privy in blood and might be heir, turns to the other argument as more promising, and evidently founds his opinion upon it. /1/ It would almost seem that he considered a prescriptive right enough to support the action, and it is pretty clear that he thought that a disseisor would have had the same rights as the plaintiff. In the reign of Henry IV., another case /2/ arose upon a covenant very like the last. But this time the facts were reversed. The plaintiff counted as heir, but did not allege that he was tenant of the manor. The defendant, not denying the plaintiff's descent, pleaded in substance that he was not tenant of the manor in his own right. The question raised by the pleadings, therefore, was whether the heir of the covenantee could sue without being tenant of the manor. If the covenant was to be approached from the side of contract, the heir was party to it as representing the covenantee. If, on the other hand, it was treated as amounting to the grant of a service like an easement, it would naturally go with the manor if made to the lord of the manor. It seems to have been thought that such a covenant might go either way, according as it was made to the tenant of the manor or to a stranger. Markham, one of the judges, says: "In a writ of covenant one must be privy to the covenant if he would have a writ of covenant or aid by the covenant. But, peradventure, if the covenant [399] had been made with the lord of the manor, who had inheritance in the manor, ou issint come determination poit estre fait, it would be otherwise," which was admitted. /1/ It was assumed that the covenant was not so made as to attach to the manor, and the court, observing that the service was rather spiritual than temporal, were inclined to think that the heir could sue. /2/ The defendant accordingly over and set up a release. It will be seen how fully this agrees with the former case. The distinction taken by Markham is stated very clearly in a reported by Lord Coke. In the argument of Chudleigh's Case the line is drawn thus: "Always, the warranty as to voucher requires privity of estate to which it was annexed," (i.e. succession to the original covenantee,) "and the same law of a use.... But of things annexed to land, it is otherwise, as of commons, advowsons, and the like appendants or appurtenances.... So a disseisor, abator, intruder, or the lord by escheat, &c., shall have them as things annexed to the land. So note a diversity between a use or warranty, and the like things annexed to the estate of the land in privity, and commons, advowsons, and other hereditaments annexed to the possession of the land." /3/ And this, it seems to me, is the nearest approach which has ever been made to the truth. Coke, in his Commentary on Littleton (385 a), takes a distinction between a warranty, which binds the party to yield lands in recompense, and a covenant annexed to the land, which is to yield but damages. If Lord Coke had [400] meant to distinguish between warranties and all covenants which in our loose modern sense are said to run with the land, this statement would be less satisfactory than the preceding. A warranty was a covenant which sometimes yielded but damages, and a covenant in the old law sometimes yielded land. In looking at the early cases we are reminded of the still earlier German procedure, in which it did not matter whether the plaintiff's claim was founded on a right of property in a thing, or simply on a contract for it. /1/ Covenant was brought for a freehold under Edward I., /2/ and under Edward III. it seems that a mill could be abated by the same action, when maintained contrary to an easement created by covenant. /3/ But Lord Coke did not mean to lay down any sweeping doctrine, for his conclusion is, that "a covenant is in many cases extended further than the warrantie." Furthermore, this statement, as Lord Coke meant it, is perfectly consistent with the other and more important distinction between warranties and rights in the nature of easements or covenants creating such rights. For Lord Coke's examples are confined to covenants of the latter sort, being in fact only the cases just stated from the Year Books. Later writers, however, have wholly forgotten the distinction in question, and accordingly it has failed to settle the disputed line between conflicting principles. Covenants which started from the analogy of warranties, and others to which was applied the language and reasoning of easements, have been confounded together under the title of [401] covenants running with the land. The phrase "running with the land" is only appropriate to covenants which pass like easements. But we can easily see how it came to be used more loosely. It has already been shown that covenants for title, like warranties, went only to successors of the original covenantee. The technical expression for the rule was that they were annexed to the estate in privity. Nothing was easier than to overlook the technical use of the word "estate," and to say that such covenants went with the land. This was done, and forthwith all distinctions became doubtful. It probably had been necessary to mention assigns in covenants for title, as it certainly had been to give them the benefit of the ancient warranty; /1/ for this seems to have been the formal mark of those covenants which passed only to privies. But it was not necessary to mention assigns in order to attach easements and the like to land. Why should it be necessary for one covenant running with the land more than another? and if necessary for one, why not for all? /2/ The necessity of such mention in modern times has been supposed to be governed by a fanciful rule of Lord Coke's. /3/ On the other hand, the question is raised whether covenants which should pass irrespective of privity are not governed by the same rule which governs warranties. These questions have not lost their importance. Covenants for title are in every deed, and other covenants are [402] only less common, which, it remains to show, belong to the other class. Chief among these is the covenant to repair. It has already been observed that an easement of fencing may be annexed to land, and it was then asked what was the difference in kind between a right to have another person build such structures, and a right to have him repair structures already built. Evidence is not wanting to show that the likeness was perceived. Only, as such covenants are rarely, if ever, made, except in leases, there is always privity to the original parties. For the lease could not, and the reversion would not be likely to, go by disseisin. The Dean of Windsor's Case decides that such a covenant binds an assignee of the term, although not named. It is reported in two books of the highest authority, one of the reporters being Lord Coke, the other Croke, who was also a judge. Croke gives the reason thus: "For a covenant which runs and rests with the land lies for or against the assignee at the common law, quia transit terra cum onere, although the assignees be not named in the covenant." /1/ This is the reason which governed easements, and the very phrase which was used to account for all possessors being bound by a covenant binding a parcel of land to warranty. Coke says, "For such covenant which extends to the support of the thing demised is quodammodo appurtenant to it, and goes with it." Again the language of easements. And to make this plainer, if need be, it is added, "If a man grants to one estovers to repair his house, it is appurtenant to his house." Estovers for [403] repair went with the land, like other rights of common, /1/ which, as Lord Coke has told us, passed even to disseisors. In the next reign the converse proposition was decided, that an assignee of the reversion was entitled in like manner to the benefit of the covenant, because "it is a covenant which runs with the land." /2/ The same law was applied, with still clearer reason, to a covenant to leave fifteen acres unploughed for pasture, which was held to bind an assignee not named, /3/ and, it would seem, to a covenant to keep land properly manured. /4/ If the analogy which led to this class of decisions were followed out, a disseisor could sue or be sued upon such covenants, if the other facts were of such a kind as to raise the question. There is nothing but the novelty of the proposition which need prevent its being accepted. It has been mentioned above, that words of covenant may annex an easement to land, and that words of grant may import a covenant. It would be rather narrow to give a disseisor one remedy, and deny him another, where the right was one, and the same words made both the grant and the covenant. /5/ The language commonly used, however, throws doubt and darkness over this and every other question connected with the subject. It is a consequence, already referred to, of confounding covenants for title, and the class last discussed, [404] under the name of covenants running with the land. According to the general opinion there must be a privity of estate between the covenantor and covenantee in the latter class of cases in order to bind the assigns of the covenantor. Some have supposed this privity to be tenure; some, an interest of the covenantee in the land of the covenantor; and so on. /1/ The first notion is false, the second misleading, and the proposition to which they are applied is unfounded. Privity of estate, as used in connection with covenants at common law, does not mean tenure or easement; it means succession to a title. /2/ It is never necessary between covenantor and covenantee, or any other persons, except between the present owner and the original covenantee. And on principle it is only necessary between them in those cases--such as warranties, and probably covenants for title--where, the covenants being regarded wholly from the side of contract, the benefit goes by way of succession, and not with the land. If now it should be again asked, at the end of this long discussion, where the line is to be drawn between these two classes of covenants, the answer is necessarily vague in view of the authorities. The following propositions may be of some service. *A. With regard to covenants which go with the land:-- *(1.) Where either by tradition or good sense the burden of the obligation would be said, elliptically, to fall on the land of the covenantor, the creation of such a burden is in theory a grant or transfer of a partial interest in [405] that land to the covenantee. As the right of property so created can be asserted against every possessor of the land, it would not be extravagant or absurd to allow it to be asserted by the action of covenant. *(2.) Where such a right is granted to the owner of a neighboring piece of land for the benefit of that land, the right will be attached to the land, and go with it into all hands. The action of covenant would be allowed to assigns not named, and it would not be absurd to give it to disseisors. *(3.) There is one case of a service, the burden of which does not fall upon land even in theory, but the benefit of which might go at common law with land which it benefited. This is the case of singing and the like by a convent. It will be observed that the service, although not falling on land, is to be performed by a corporation permanently seated in the neighborhood. Similar cases are not likely to arise now. *B. With regard to covenants which go only with the estate in the land:-- In general the benefit of covenants which cannot be likened to grants, and the burden of which does not fall on land, is confined to the covenantee and those who sustain his persona, namely, his executor or heir. In certain cases, of which the original and type was the ancient warranty, and of which the modern covenants for title are present examples, the sphere of succession was enlarged by the mention of assigns, and assigns are still allowed to represent the original covenantee for the purposes of that contract. But it is only by way of succession that any other person than the party to the contract can sue upon it. Hence the plaintiff must always be privy in estate with the covenantee. [406] C. It is impossible, however, to tell by general reasoning what rights will be held in English law to belong to the former class, or where the line will be drawn between the two. The authorities must be consulted as an arbitrary fact. Although it might sometimes seem that the test of the first was whether the service was of a nature capable of grant, so that if it rested purely in covenant it would not follow the land, /1/ yet if this test were accepted, it has already been shown that, apart from tradition, some services which do follow the land could only be matter of covenant. The grant of light and air, a well- established easement, is called a covenant not to build on the servient land to the injury of the light, by Baron Parke. /2/ And although this might be doubted, /3/ it has been seen that at least one well-established easement, that of fencing, cannot be considered as a right granted out of the servient land with any more propriety than a hundred other services which would be only matter of contract if the law allowed them to be annexed to land in like manner. The duty to repair exists only by way of covenant, yet the reasoning of the leading cases is drawn from the law of easement. On the other hand, a covenant by a lessee to build a wall upon the leased premises was held, in Spencer's Case, not to bind assigns unless mentioned; /4/ but Lord Coke says that it would have bound them if it had purported to. The analogy of warranty makes its appearance, and throws a doubt on the fundamental principle of the case. We can only say that the application [407] of the law is limited by custom, and by the rule that new and unusual burdens cannot be imposed on land. The general object of this Lecture is to discover the theory on which a man is allowed to enjoy a special right when the facts out of which the right arises are not true of him. The transfer of easements presented itself as one case to be explained, and that has now been analyzed, and its influence on the law has been traced. But the principle of such transfers is clearly anomalous, and does not affect the general doctrine of the law. The general doctrine is that which has been seen exemplified in prescription, warranty, and such covenants as followed the analogy mentioned Another illustration which has not yet been is to be found in the law of uses. In old times a use was a chose in action,--that is, was considered very nearly from the point of view of contract, and it had a similar history to that which has been traced in other cases. At first it was doubted whether proof of such a secret trust ought to be allowed, even as against the heir. /1/ It was allowed, however, in the end, /2/ and then the principle of succession was extended to the assign. But it never went further. Only those who were privies in estate with the original feoffee to uses, were bound by the use. A disseisor was no more bound by the confidence reposed in his disseisee, than he was entitled to vouch his disseisee's warrantor. In the time of Henry VIII. it was said that "where a use shall be, it is requisite that there be two things, sc. confidence, and privity:... as I say, if there be not privity or confidence, [408] then there can be no use: and hence if the feoffees make a feoffment to one who has notice of the use, now the law will adjudge him seised to the first use, since there is sufficient privity between the first feoffor and him, for if he [i.e. the first feoflor] had warranted he [the last feoffee] should vouch as assign, which proves privity; and he is in in the per by the feoffees; but where one comes into the land in the post, as the lord by escheat or the disseisor, then the use is altered and changed, because privity is wanting." /1/ To this day it is said that a trust is annexed in privity to the person and to the estate /2/ (which means to the persona). It is not regarded as issuing out of the land like a rent, so that while a rent binds every one who has the land, no matter how, a disseisor is not bound by the trust. /3/ The case of the lord taking by escheat has been doubted, /4/ and it will be remembered that there is a difference between Bracton and later authors as to whether he comes in as quasi heres or as a stranger. Then as to the benefit of the use. We are told that the right to sue the subpoena descended indeed to the heir, on the ground of heres eadem persona cum antecessore, but that it was not assets. /5/ The cestui que use was given power to sell by an early statute. /6/ But with regard to trusts, Lord Coke tells us that in the reign of Queen Elizabeth [409] all the judges in England held that a trust could not be assigned, "because it was a matter in privity between them, and was in the nature of a chose in action." /1/ Uses and trusts were both devisable, however, from an early day, /2/ and now trusts are as alienable as any form of property. The history of early law everywhere shows that the difficulty of transferring a mere right was greatly felt when the situation of fact from which it sprung could not also be transferred. Analysis shows that the difficulty is real. The fiction which made such a transfer conceivable has now been explained, and its history has been followed until it has been seen to become a general mode of thought. It is now a matter of course that the buyer stands in the shoes of the seller, or, in the language of an old law-book, /3/ that "the assign is in a manner quasi successor to his assignor." Whatever peculiarities of our law rest on that assumption may now be understood. FOOTNOTES 3/1 E.g. Ine, c. 74; Alfred, c. 42; Ethelred, IV. 4, Section 1. 3/2 Bract., fol. 144, 145; Fleta, I. c. 40, 41; Co. Lit. 126b; Hawkins, P.C., Bk. 2, ch. 23, Section 15. 3/3 Lib. I. c. 2, ad fin. 3 /4 Bract., fol. 144a, "assulto praemeditato." 4/1 Fol. 155; cf. 103b. 4/2 Y.B. 6 Ed. IV. 7, pl. 18. 4/3 Ibid., and 21 H. VII. 27, pl. 5. 4/4 D. 47. 9. 9. 7/1 xxi. 28. 7/2 [theta], ix. Jowett's Tr., Bk. IX. p. 437; Bohn's Tr., pp. 378, 379. 7/3 [theta], xv., Jowett, 449; Bohn, 397. 8/1 [iota alpha], xiv., Jowett, 509; Bohn, 495. 8/2 [theta], xii., Jowett, 443, 444; Bohn, 388. 8/3 [Greek words]. 244, 245. 8/4 l. 28 (11). 8/5 Solon. 8/6 "Si quadrupes pauperiem fecisse dicetur actio ex lege duodecim tabularum descendit; quae lex voluit, aut dari [id] quod nocuit, id ist, id animal, quod noxiam commisit; aut estimationem noxiae offerre." D. 9. 1. 1, pr.; Just. Inst. 4. 9; XII Tab., VIII. 6. 8/7 Gaii Inst. IV. Sections 75, 76; D. 9. 4. 2, Section 1. "Si servus furtum faxit noxiam ve noxit." XII Tab., XII.2. Cf. Just. Inst. 4.8, Section 7. 9/1 D. 39. 2. 7, Sections 1, 2; Gaii Inst. IV. Section 75. 9/2 "Noxa caput sequitur." D. 9. 1. 1, Section 12; Inst. 4.8, Section 5. 9/3 "Quia desinit dominus esse ubi fera evasit." D. 9. 1. 1, Section 10; Inst. 4. 9, pr. Compare May v. Burdett, 9 Q.B.101, 113. 10/1 D. 19. 5. 14, Section 3; Plin. Nat. Hist., XVIII. 3. 10/2 "In lege antiqua si servus sciente domino furtum fecit, vel aliam noxiam commisit, servi nomine actio est noxalis, nec dominus suo nomine tenetur." D. 9. 4. 2. 10/3 Gaius, Inst. IV. Section 77, says that a noxal action may change to a direct, and conversely, a direct action to a noxal. If a paterfamilias commits a tort, and then is adopted or becomes a slave, a noxal action now lies against his master in place of the direct one against himself as the wrong-doer. Just. Inst. 4. 8, Section 5. 11/1 LL. Alfred, c. 13; 1 Tylor, Primitive Culture, Am. ed., p. 285 et seq.; Bain, Mental and Moral Science, Bk. III. ch. 8, p. 261. 11/2 Florus, Epitome, II. 18. Cf. Livy, IX 1, 8, VIII. 39; Zonaras, VII. 26, ed. Niebuhr, vol. 43, pp. 98, 99. 12/1 Gaii Inst. IV. Section 81. I give the reading of Huschke: "Licere enim etiam, si fato is fuerit mortuus, mortuum dare; nam quamquam diximus, non etiam permissum reis esse, et mortuos homines dedere, tamen et si quis eum dederit, qui fato suo vita excesserit, aeque liberatur." Ulpian's statement, in D. 9. 1. 1, Section 13, that the action is gone if the animal dies ante litem contestatam, is directed only to the point that liability is founded on possession of the thing. 12/2 "Bello contra foedus suscepto." 12/3 Livy, VIII. 39: "Vir...haud dubie proximarum induciarum ruptor. De eo coacti referre praetores decretum fecerunt 'Ut Brutulus Papius Romanis dederetur."...Fetiales Romam, ut censuerunt, missi, et corpus Brutuli exanime: ipse morte voluntaria ignominiae se ac supplicio subtraxit. Placuit cum corpore bona quoque ejus dedi." Cf. Zonaras, VII. 26, ed. Niebuhr, vol. 43, p. 97: [Greek characters]. See further Livy, V. 36, "postulatumque ut pro jure gentium violato Fabii dederentur," and Ib. I. 32. 13/1 Livy, IX. 5, 8, 9, 10. "Nam quod deditione nostra negant exsolvi religione populum, id istos magis ne dedantur, quam quia ita se res habeat, dicere, quis adeo juris fetialium expers est, qui ignoret?" The formula of surrender was as follows: "Quandoque hisce homines injussu populi Romani Quiritium foedus ictum iri spoponderunt, atque ob eam rem noxam nocuerunt; ob eam rem, quo populus Romanus scelere impio sit solutus, hosce homines vobis dedo." Cf. Zonaras, VII. 26, ed. Niebuhr, vol. 43, pp. 98, 99. 13/2 De Orator. I. 40, and elsewhere. It is to be noticed that Florus, in his account, says deditione Mancini expiavit. Epitome, II. 18. It has already been observed that the cases mentioned by Livy seem to suggest that the object of the surrender was expiation, as much as they do that it was satisfaction of a contract. Zonaras says, Postumius and Calvinus [Greek characters]. (VII. 26, ed. Niebuhr, Vol. 43, pp. 98, 99.) Cf. ib. p. 97. Compare Serv. ad Virg. Eclog. IV. 43: "In legibus Numae cautum est, ut si quis imprudens occidisset hominem pro capite occisi et natis [agnatis? Huschke] ejus in concione offerret arietem." Id. Geor. III. 387, and Festus, Subici, Subigere. But cf. Wordsworth's Fragments and Specimens of Early Latin, note to XII Tab., XII. 2, p. 538. 14/1 D. 9. 4. 2 14/2 2 Tissot, Droit Penal, 615; 1 Ihering, Geist d. Roem. R., Section 14; 4 id. Section 63. 14/3 Aul. Gell. Noctes Attici, 20. 1; Quintil. Inst. Orat. 3. 6. 84; Tertull. Apol., c. 4. 14/4 Cf. Varro, De Lingua Latina, VI.: "Liber, qui suas operas in servitute pro pecunia, quam debeat, dum solveret Nexus vocatur." 15/1 D. 9. 1. 1, Section 9 But cf. 1 Hale, P.C. 420. 15/2 D. 9. 4. 2, Section 1. 15/3 D. 9. 1. 1, Sections 4, 5. 16/1 D. 4. 9. 1, Section 1; ib. 7, Section 4. 16/2 Gaius in D. 44. 7. 5, Section 6; Just. Inst. 4. 5, Section 3. 16/3 D. 4. 9. 7, pr. 17/1 See Austin, Jurisp. (3d ed.) 513; Doctor and Student, Dial. 2, ch. 42. 17/2 Cf. L. Burgund. XVIII.; L. Rip. XLVI. (al. 48). 17/3 See the word Lege, Merkel, Lex Salica, p. 103. Cf. Wilda, Strafrecht der Germanen, 660, n. 1. See further Lex Salica, XL.; Pactus pro tenore pacis Child. et Chloth., c. 5; Decretio Chlotharii, c. 5; Edictus Hilperichi, cc. 5, 7; and the observations of Sohm in his treatise on the Procedure of the Salic Law, Sections 20, 22, 27, French Tr. (Thevenin), pp. 83 n., 93, 94, 101-103, 130. 17/4 Wilda, Strafrecht, 590. 18/1 Cf. Wilda, Strafrecht, 660, n. 1; Merkel, Lex Salica, Gloss. Lege, p. 103. Lex Saxon. XI. Section 3: "Si servus perpetrato facinore fugerit, ita ut adomino ulterius inveniri non possit, nihil solvat." Cf. id. II. Section 5. Capp. Rip. c. 5: "Nemini liceat servum suum, propter damnum ab illo cuibet inlatum, dimittere; sed justa qualitatem damni dominus pro illo respondeat vel eum in compositione aut ad poenam petitori offeret. Si autem servus perpetrato scelere fugerit, ita ut a domino paenitus inveniri non possit, sacramento se dominus ejus excusare studeat, quod nec suae voluntatis nec conscientia fuisset, quod servus ejus tale facinus commisit." 18/2 L. Saxon. XI. Section 1. 18/3 Lex Angl. et Wer. XVI.: "Omne damnum quod servus fecerit dominus emendet." 19/1 C. 3; 1 Thorpe, Anc. Laws, pp. 27, 29. 19/2 C. 74; 1 Thorpe, p. 149; cf. p. 118, n. a. See LL. Hen. I., LXX. Section 5. 19/3 C. 24; 1 Thorpe, p. 79. Cf. Ine, c. 42; 1 Thorpe, p. 129. 19/4 C. 13; 1 Thorpe, p. 71. 19/5 1 Tylor, Primitive Culture, Am. ed., p. 286. 20/1 Cf. Record in Molloy, Book 2, ch. 3, Section 16, 24 Ed. III.: "Visum fuit curiae, quod unusquisque magister navis tenetur respondere de quacunque transgressione per servientes suos in navi sua facta." The Laws of Oleron were relied on in this case. Cf. Stat. of the Staple, Ed. III., Stat. 2, c. 19. Later, the influence of the Roman law is clear. 20/2 Quon. Attach., c. 48, pl. 10 et seq. Cf. The Forme and Maner of Baron Courts, c. 62 et seq. 21/1 Forme and Maner of Baron Courts, c. 63. 21/2 C. 64. This substantially follows the Quoniam Attachiamenta, c. 48, pl. 13, but is a little clearer. Contra, Fitzh. Abr. Corone, Pl. 389, 8 Ed. II. 22/1 Fitzh. Abr. Barre, pl. 290. 22/2 Mitchil v. Alestree, 1 Vent. 295; S.C. 2 Lev. 172; S.C. 3 Keb. 650. Cf. May b. Burdett, 9 Q.B.101, 113. 22/3 May v. Burdett, 9 Q.B.101. 22/4 Mason v. Keeling, 12 Mod. 332, 335; S.C. 1 Ld. Raym. 606, 608. 23/1 Williams, J. in Cox v. Burbidge, 13 C.B. N.S. 430, 438. Cf. Willes, J. in Read v. Edwards, 17 C.B. N.S. 245, 261. 23/2 Mason v. Keeling, 1 Ld. Raym. 606, 608. 23/3 In the laws of Ine, c. 42 (1 Thorpe, Anc. Laws, 129), personal liability seems to be imposed where there is a failure to fence. But if an animal breaks hedges the only remedy mentioned is to kill it, the owner to have the skin and flesh, and forfeit the rest. The defendant was held "because it was found that this was for default of guarding them,...for default of good guard," in 27 Ass., pl. 56, fol. 141, A.D. 1353 or 1354. It is much later that the reason is stated in the absolute form, "because I am bound by law to keep my beasts without doing wrong to any one." Mich. 12 Henry VII., Keilway, 3b, pl. 7. See, further, the distinctions as to a horse killing a man in Regiam Majestatem, IV, c. 24. 24/1 Fol. 128. 24/2 Cf. 1 Britton (Nich.), 6a, b, 16 (top paging 15, 39); Bract., fol. 136b; LL. Alfred, c. 13 (1 Thorpe, Anc. Laws, p. 71); Lex Saxon., Tit. XIII.; Leg Alamann., Tit. CIII. 24. 25/1 Fleta, I. 26, Section 10; Fitzh. Abr. Corone, pl. 416. See generally Staundforde, P.C., I. c. 2, fol. 20 et seq.; 1 Hale, P.C. 410 et seq. 25/2 Doctor and Student, Dial. 2, c. 51. 25/3 Plowd. 260. 25/4 Jacob, Law Dict. Deodand. 25/5 Y.B. 30 & 31 Ed. I., pp. 524, 525; cf. Bract., fol. 136b. 26/1 Fitzh. Abr. Corone, pl. 403. 26/2 Bract. 122; 1 Britton (Nich.), top p. 16; Fleta, Ic. 25, Section 9, fol. 37. 26/3 1 Hale, P.C. 423. 26/4 1 Rot. Parl. 372; 2 Rot. Parl. 345, 372a, b; 3 Rot. Parl. 94a, 120a, 121; 4 Rot. Parl. 12a, b, 492b, 493. But see 1 Hale, P.C. 423. 26/5 1 Black Book of the Admiralty, 242. 27/1 Cf. Ticonderoga, Swabey, 215, 217. 27/2 China, 7 Wall. 53. 28/1 Doctor and Student, Dial. 2, c. 51. 28/2 1 Roll. Abr. 530 (C) 1. 29/1 3 Black Book of Adm. 103. 29/2 Malek Adhel, 2 How. 210, 234. 30/1 3 Kent, 218; Customs of the Sea, cap. 27, 141, 182, in 3 Black Book of the Admiralty, 103, 243, 245. 31/1 3 Kent's Comm. 188. 31/2 Clay v. Snelgrave, 1 Ld. Raym. 576, 577; S.C. 1 Salk. 33. Cf. Molloy, p. 355, Book II. ch. 3, Section 8. 31/3 "Ans perdront lurs loers quant la nef est perdue." 2 Black Book, 213. This is from the Judgments of the Sea, which, according to the editor (II., pp. xliv., xlvii.), is the most ancient extant source of modern maritime law except the decisions of Trani. So Molloy, Book II. ch. 3, Section 7, p. 354: "If the ship perishes at sea they lose their wages." So 1 Siderfin, 236, pl. 2. 32/1 3 Black Book, pp. lix., lxxiv. 32/2 3 Black Book, 263. It should be added, however, that it is laid down in the same book that, if the vessel is detained in port by the local authorities, the master is not bound to give the mariners wages, "for he has earned no freight." 32/3 Lipson v. Harrison, 2 Weekly Rep. 10. Cf. Louisa Jane, 2 Lowell, 295. 32/4 3 Kent's Comm. (12th ed.), 218; ib. 138, n. 1. 32/5 3 Kent, 218. 32/6 Justin v. Ballam, 1 Salk. 34; S.C. 2 Ld. Raym. 805. 33/1 D. 20. 4. 5 & 6; cf. Livy, XXX. 38. 33/2 Pardessus, Droit. Comm., n. 961. 33/3 3 Keb. 112, 114, citing 1 Roll. Abr. 530. 34/1 Godbolt, 260. 34/2 3 Colquhoun, Roman Civil Law, Section 2196. 35/1 Lex Salica (Merkel), LXXVII.; Ed. Hilperich., Section 5. 36/1 See Lecture III., ad fin. 39/1 Cf. 2 Hawk. P.C. 303 et seq.; 27 Ass. 25. 40/1 2 Palgrave, Commonwealth, cxxx., cxxxi. 41/1 Butler, Sermons, VIII. Bentham, Theory of Legislation (Principles of Penal Code, Part 2, ch. 16), Hildreth's tr., p. 309. 41/2 General View of the Criminal Law of England, p. 99. 43/1 Wharton, Crim. Law, (8th ed.) Section 8, n. 1. 43/2 Ibid., Section 7. 43/3 Even the law recognizes that this is a sacrifice. Commonwealth v. Sawin, 2 Pick. (Mass.) 547, 549. 47/1 Cf. 1 East, P.C. 294; United States v. Holmes, 1 Wall. Jr. 1; 1 Bishop, Crim. Law, Sections 347-349, 845 (6th ed.); 4 Bl. Comm. 31. 51/1 Art. 223. 51/2 General View of the Criminal Law of England, p. 116. 53/1 Harris, Criminal Law, p. 13. 53/2 Steph. Dig. Crim. Law, Art. 223, Illustration (6), and n. 1. 56/1 4 Bl. Comm. 192. 57/1 Cf. 4 Bl. Comm. 197. 58/1 Reg. v. Hibbert, L.R. 1 C.C. 184. 59/1 Reg. v. Prince, L.R. 2 C.C. 154. 59/2 Commonwealth v. Hallett, 103 Mass. 452. 60/1 Stephen, Dig. Cr. Law, Art. 223, Illustr. (5); Foster, 294, 295. 60/2 Cf. Gray's case, cited 2 Strange, 774. 60/3 Steph. Dig., Art. 223, Illustr. (1). 60/4 Steph. Dig., Art. 223, Illustr. (8). 60/5 Rex v. Mastin, 6 C.&P. 396. Cf. Reg. v. Swindall, 2 C. & K. 230. 60/6 4 Bl. Comm. 192. 62/1 Steph. Dig. Cr. Law, Art. 225. 62/2 Rex v. Shaw, 6 C.&P. 372. 62/3 Rex v. Oneby, 2 Strange, 766, 773. 62/4 Rex v. Hayward, 6 C.&P. 157. 63/1 Commonwealth v. Walden, 3 Cush. (Mass.) 558. Cf. Steph. Gen. View of the Crim. Law, 84. 64/1 2 Bishop Crim. Law, Section 14 (6th ed.). 64/2 Glanv., Lib. XIV. c. 4. 64/3 Bract., fol. 146b. 64/4 Ibid. 64/5 2 East, P.C., c. 21, Sections 7, 8, pp. 1027, 1031. 66/1 1 Bishop, Crim. Law, Section 735 (6th ed.). 66/2 Reg. v. Dilworth, 2 Moo. & Rob. 531; Reg. v. Jones, 9 C.&P. 258. The statement that a man is presumed to intend the natural consequences of his acts is a mere fiction disguising the true theory. See Lecture IV. 67/1 Reg. v. Taylor, 1 F. & F. 511. 67/2 Reg. v. Roberts, 25 L. J. M. C. 17; S.C. Dearsly, C., C. 539. 68/1 Lewis v. The State, 35 Ala. 380. 69/1 See M'Pherson's Case, Dearsly & Bell, 197, 201, Bramwell, B. 69/2 Cf. 1 Bishop, Crim. Law, Sections 741-745 (6th ed.). 71/1 2 Bishop, Crim. Law, Section 758 (6th ed.). 73/1 Cf. Stephen, General View of Criminal Law of England, 49 et seq. 73/2 Cf. Stephen, General View, 49-52; 2 East, P.C. 553. 74/1 Rex v. Cabbage, Russ. & Ry. 292. 74/2 Cf. 4 Bl. Comm. 224; Steph. Dig. Crim. Law, Arts. 316, 319. 74/3 Cf. 4 Bl. Comm. 227, 228. 75/1 1 Starkie, Cr. Pl. 177. This doctrine goes further than my argument requires. For if burglary were dealt with only on the footing of an attempt, the whole crime would have to be complete at the moment of breaking into the house. Cf. Rex v. Furnival, Russ. & Ry. 445. 81/1 See Lecture VII. 82/1 Austin, Jurisprudence (3d ed.), 440 et seq., 474, 484, Lect. XX., XXIV., XXV. 84/1 Lib. I. c. 2, ad fin. 85/1 Hist. English Law, I. 113 (bis), n.a; Id., ed. Finlason, I. 178, n. 1. Fitzherbert (N.B. 85, F.) says that in the vicontiel writ of trespass, which is not returnable into the king's court, it shall not be said quare vi et armis. Cf. Ib. 86, H. 85/2 Milman v. Dolwell, 2 Camp. 378; Knapp v. Salsbury, 2 Camp. 500; Peafey v. Walter, 6 C.&P. 232; Hall v. Fearnley, 3 Q.B. 919. 85/3 Y.B. 6 Ed. IV. 7, pl. 18, A.D. 1466; cf. Ames, Cases in Tort, 69, for a translation, which has been followed for the most part. 87/1 Y.B. 21 Hen. VII. 27, pl. 5, A.D. 1506. 87/2 Cf. Bract., fol. 136 b. But cf. Stat. of Gloucester, 6 Ed. I. c. 9; Y.B. 2 Hen. IV. 18, pl. 8, by Thirning; Essays in Ang. Sax. Law, 276. 87/3 Hobart, 134, A.D. 1616. 87/4 Sir T. Jones, 205, A.D. 1682. 87/5 1 Strange, 596, A.D. 1723. 87/6 2 Keyes, 169, A.D. 1865. 88/1 Anonymous, Cro. Eliz. 10, A.D. 1582. 88/2 Sir T. Raym. 467, A.D. 1682. 88/3 Scott v. Shepherd, 2 Wm. B1. 892, A.D. 1773. 88/4 3 East, 593. See, further, Coleridge's note to 3 Bl. Comm. 123; Saunders, Negligence, ch. 1, Section I; argument in Fletcher v. Rylands, 3 H.&C. 774, 783; Lord Cranworth, in S.C., L.R. 3 H. L. 330, 341. 90/1 Ex. gr. Metropolitan Railway Co. v. Jackson, 3 App. Cas. 193. See M'Manus v. Crickett, 1 East, 106, 108. 91/1 1 Ld. Raym. 38; S.C. Salk. 637; 4 Mod. 404; A.D. 1695. 92/1 2 Wm. Bl. 892. Cf. Clark v. Chambers, 3 Q.B.D. 327, 330, 338. 92/2 7 Vt, 62. 93/1 Smith v. London & South-Western Railway Co., L.R. 6 C.P. 14, 21. Cf. S.C., 5 id. 98, 103, 106. 93/2 Sharp v. Powell, L.R. 7 C.P. 253. Cf. Clark v. Chambers, 3 Q.B.D. 327, 336-338. Many American cases could be cited which carry the doctrine further. But it is desired to lay down no proposition which admits of controversy, and it is enough for the present purposes that Si home fait un loyal act, que apres devint illoyal, ceo est damnum sine injuria. Latch, 13. I purposely omit any discussion of the true rule of damages where it is once settled that a wrong has been done. The text regards only the tests by which it is decided whether a wrong has been done. 94/1 Mitchil v. Alestree, 1 Ventris, 295; S.C., 3 Keb. 650; 2 Lev. 172. Compare Hammack v. White, 11 C.B. N.S. 588; infra, p. 158. 95/1 Harvey v. Dunlop, Hill & Denio, (Lalor,) 193. 95/2 See Lecture II. pp. 54, 55. 97/1 cf. Hobart v. Hagget, 3 Fairf. (Me.) 67. 98/1 See Bonomi v. Backhouse, El. Bl. & El. 622, Coleridge, J., at p. 640. 99/1 3 Levirtz, 87, A.D. 1681. 99/2 Compare the rule as to cattle in Y.B. 22 Edw. IV. 8, pl. 24, stated below, p. 118. 100/1 Disc. 123, pr.; 124, Sections 2, 3. As to the historical origin of the latter rule, compare Lecture V. 101/1 Lecture I, pp. 3, 4. 101/2 Lib. I. c. 2, ad. fin. 101/3 Fol. 155. 101/4 Bro. Trespass, pl. 119; Finch, 198; 3 Bl. Comm. 118, 119. 101/5 See Brunner, Schwurgerichte, p. 171. 101/6 An example of the year 1195 will be found in Mr. Bigelow's very interesting and valuable Placita Anglo-Normanica, p. 285, citing Rot. Cur. Regis, 38; S.C. ? Abbr. Plac., fol. 2, Ebor. rot. 5. The suit was by way of appeal; the cause of action, a felonious trespass. Cf. Bract., fol. 144 a. 102/1 An example may be seen in the Year Book, 30 & 31 Edward I. (Horwood), p. 106. 103/1 6 Ed. IV. 7, pl. 18. 103/2 Popham, 151; Latch, 13, 119, A.D. 1605. 104/1 Hobart, 134, A.D. 1616. 104/2 3 East, 593. 105/1 1 Bing. 213, A.D. 1823. 105/2 6 Cush. 292. 106/1 Morris v. Platt, 32 Conn. 75, 84 et seq., A.D. 1864. 106/2 Nitro-glycerine Case (Parrot v. Wells), 15 Wall. 524, 538. 106/3 Hill & Denio, (Lalor,) 193; Losee v. Buchanan, 51 N.Y. 476, 489. 107/1 Vincent v. Stinehour, 7 Vt. 62. See, further, Clayton, 22, pl. 38; Holt, C.J., in Cole v. Turner, 6 Mod. 149; Lord Hardwicke, in Williams v. Jones, Cas. temp. Hardw. 298; Hall v. Fearnley, 8 Q.B. 919; Martin, B., in Coward v. Baddeley, 4 H.&N. 478; Holmes v. Mather, L.R. 10 Ex. 261; Bizzell v. Booker, 16 Ark. 308; Brown v. Collins, 53 N.H. 442. 107/2 Blyth v. Birmingham Waterworks Co., 11 Exch. 781, 784; Smith v. London & South-Western Ry. Co., L.R. 5 C.P. 98, 102. Compare Campbell, Negligence, Section 1 (2d ed.), for Austin's point of view. 109/1 cf. Bro. Corone, pl. 6; Neal v. Gillett, 23 Conn. 437, 442; D. 9. 2. 5, Section 2; D. 48. 8. 12. 113/1 I Thorpe, p. 85; cf. LL. Hen. I., c. 88, Section 3. 113/2 Spofford v. Harlow, 3 Allen, 176. 114/1 See 27 Ass., pl. 56, fol. 141; Y.B. 43 Edw. III. 33, pl. 38. The plea in the latter case was that the defendant performed the cure as well as he knew how, without this that the horse died for default of his care. The inducement, at least, of this plea seems to deal with negligence as meaning the actual state of the party's mind. 115/1 Hobart, 134. 115/2 See Knight v. Jermin, Cro. Eliz. 134; Chambers v. Taylor, Cro. Eliz. 900. 115/3 32 Conn. 75, 89, 90. 116/1 Y.B. 12 Hen. VIII. 2 b, Pl. 2. 116/2 Keilway, 46 b. 116/3 L.R. 3 H.L. 330, 339; L.R. 1 Ex. 265, 279-282; 4 H.&C. 263; 3 id. 774. 117/1 See Card v. Case, 5 C.B. 622, 633, 634. 117/2 See Lecture I. p. 23 and n. 3. 117/3 Mitten v. Fandrye, Popham, 161; S.C., 1 Sir W. Jones, 136; S.C., nom. Millen v. Hawery, Latch, 13; id. 119. In the latter report, at p. 120, after reciting the opinion of the court in accordance with the text, it is said that judgment was given non obstant for the plaintiff; contrary to the earlier statement in the same book, and to Popham and Jones; but the principle was at all events admitted. For the limit, see Read v. Edwards, 17 C.B. N.S. 245. 118/1 Y.B. 22 Edw. IV. 8, pl. 24. 118/2 Popham, at p. 162; S.C., Latch, at p. 120; cf. Mason v. Keeling, 1 Ld. Raym. 606, 608. But cf. Y.B. 20 Edw. IV. 10, 11, pl. 10. 118/3 Latch, at p. 120. This is a further illustration of the very practical grounds on which the law of trespass was settled. 118/4 12 Mod. 332, 335; S.C., 1 Ld. Raym. 606, 608. 118/5 12 Mod. 335; Dyer, 25 b, pl. 162, and cas. in marg.; 4 Co. Rep. 18 b; Buxendin v. Sharp, 2 Salk. 662; S.C., 3 Salk. 169; S.C., nom. Bayntine v. Sharp, 1 Lutw. 90; Smith v. Pelah, 2 Strange, 264; May v. Burdett, 9 Q.B. 101; Card v. Case, 5 C.B. 622. 119/1 12 Mod. 335. See Andrew Baker's case, 1 Hale, P.C. 430. 119/2 Besozzi v. Harris, 1 F.&F. 92. 119/3 See Fletcher v. Rylands, L.R. I Ex. 265, 281, 282; Cox v. Burbridge, 13 C.B. N.S. 430, 441; Read v. Edwards, 17 C.B. N.S. 245, 260; Lee v. Riley, 18 C.B. N.S. 722; Ellis v. Loftus Iron Co., L.R. 10 C.P. 10; 27 Ass., pl. 56, fol. 141; Y.B. 20 Ed. IV. 11, pl. 10; 13 Hen. VII. 15, pl. 10; Keilway, 3 b, pl. 7. Cf. 4 Kent (12th ed.), 110, n. 1, ad fin. 120/1 2 Ld. Raym. 909; 13 Am. L.R. 609. 120/2 See Grill v. General Iron Screw Collier Co., L.R. 1 C.P. 600, 612, 614. 120/3 Railroad Co. v. Lockwood, 17 Wall. 357, 383. 121/1 L.R. 1 C.P. 300. 121/2 See Gorham v. Gross, 125 Mass. 232, 239, bottom. 121/3 Minor v. Sharon, 112 Mass. 477, 487. 122/1 See Winsmore v. Greenbank, Willes, 577, 583; Rex v. Oneby, 2 Strange, 766, 773; Lampleigh v. Brathwait, Hobart, 105, 107; Wigram, Disc., pl. 249; Evans on Pleading, 49, 138, 139, 143 et seq.; Id., Miller's ed., pp. 147, 149. 123/1 See Detroit & Milwaukee R. R. Co. v. Van Steinburg, 17 Mich. 99, 120. 123/2 In the small-pox case, Minor v. Sharon, 112 Mass. 477, while the court ruled with regard to the defendant's conduct as has been mentioned, it held that whether the plaintiff was guilty of contributory negligence in not having vaccinated his children was "a question of fact, and was properly left to the jury." p. 488. 124/1 Metropolitan Railway Co. v. Jackson, 3 App. Cas. 193, 197. 125/1 See Kearney v. London, Brighton & S. Coast Ry. Co., L.R. 5 Q.B. 411, 414, 417; S.C., 6 id. 759. 125/2 Byrne v. Boadle, 2 H. & C. 722. 125/3 See Skinnier v. Lodon, Brighton, & S. Coast Ry. Co., 5 Exch. 787. But cf. Hammack v. White, 11 C.B. N.S. 588, 594. 127/1 7 American Law Review, 654 et seq., July, 1873. 128/1 Callahan v. Bean, 9 Allen, 401. 128/2 Carter v. Towne, 98 Mass. 567. 128/3 Lovett v. Salem & South Danvers R. R. Co., 9 Allen, 557. 128/4 Back v. Stacey, 2 C.&P. 465. 128/5 Cf. Beadel v. Perry, L.R. 3 Eq. 465; City of London Brewery Co. v. Termant, L.R. 9 Ch. 212, 220; Hackett v. Baiss, L.R. 20 Eq. 494; Theed v. Debenham, 2 Ch. D. 165. 135/1 Williamson v. Allison, 2 East, 446. 136/1 Leather v. Simpson, L.R. 11 Eq. 398, 406. On the other hand, the extreme moral view is stated in Weir v. Bell, 3 Ex. D. 238, 243. 138/1 As to actual knowledge and intent, see Lecture II. p. 57. 141/1 Cf. Knight v. German, Cro. Eliz. 70; S.C., ib. 134. 141/2 Mitchell v. Jenkins, 5 B.&Ad. 588, 594; Turner v. Ambler, 10 Q.B. 252, 257, 261. 142/1 Redfield, C. J. in Barron v. Mason, 31 Vt. 189, 197. 142/2 Mitchell v. Jenkins, 5 B.&Ad. 588, 595. 143/1 See Burton v. Fulton, 49 Penn. St. 151. 144/1 Rolfe, B. in Fouldes v. Willoughby, 8 Meeson & Welsby, 540. 145/1 Supra, pp. 115 et seq. 147/1 See, e.g., Cooley, Torts, 164. 147/2 Rex v. Dixon, 3 Maule & Selwyn, 11, 15; Reg. v. Hicklin, L.R. 3 Q.B. 360; 5 C.&P. 266, n. 148/1 Aleyn, 35; Style, 72; A.D. 1648. 149/1 1 Kent (12th ed.), 467, n. 1; 6 Am. Law Rev. 723-725; 7 id. 652. 149/2 2 Wm. Bl. 892, A.D. 1773; supra, p. 92; Addison on Torts (4th ed.), 264, citing Y.B. 37 Hen. VI. 37, pl. 26, which hardly sustains the broad language of the text. 151/1 Compare Crouch v. London & N. W. R. Co., 14 C.B. 255, 283; Calye's Case, 8 Co. Rep. 32; Co. Lit. 89 a, n. 7; 1 Ch. Pl. (lst ed,), 219, (6th ed.), 216, 217; 7 Am. Law Rev. 656 et seq. 151/2 But cf. The Pawashick, 2 Lowell, 142. 151/3 Gibson v. Stevens, 8 How. 384, 398, 399; Barnett v. Brandao, 6 Man. & Gr. 630, 665; Hawkins v. Cardy, 1 Ld. Raym. 360. 151/4 Pickering v. Barkley, Style, 132; Wegerstoffe v. Keene, 1 Strange, 214, 216, 223; Smith v. Kendall, 6 T. R. 123, 124. 155/1 Card v. Case, 5 C.B. 622, 634. Cf. Austin (3d ed.), 513. 156/1 Rylands v. Fletcher, L.R. 3 H.L. 330; supra, p. 116. 156/2 See Marshall v. Welwood, 38 N.J. (9 Vroom), 339; 2 Thompson, Negligence, 1234, n. 3. 157/1 Gorham v. Gross, 125 Mass. 232; supra, p. 117. 158/1 Mitchil v. Alestree, 1 Vent. 295; S.C., 3 Keb. 650; 2 Lev. 172; supra, p. 94. 158/2 Hammack v. White, 11 C.B. N.S. 588. 166/1 Laband, Vermogensrechtlichen Klagen, Section 16, pp. 108 et seq.; Heusler, Gewere, 487, 492. These authors correct the earlier opinion of Bruns, R. d. Besitzes, Section 37, pp. 313 et seq., adopted by Sohm in his Proc. d. Lex Salica, Section 9. Cf. the discussion of sua in writs of trespass, &c. in the English law, at the end of Lecture VI. Those who wish short accounts in English may consult North Amer. Rev., CX. 210, and see Id., CXVIII. 416; Essays in Anglo-Saxon Law, pp. 212 et seq. Our knowledge as to the primitive form of action is somewhat meagre and dependent on inference. Some of the earliest texts are Ed. Liutpr. 131; Lex Baiw., XV. 4; L. Frision. Add. X.; L. Visig., V.5. I; L. Burg., XLIX. I, 2. The edict of Liutprand, dealing with housebreaking followed by theft of property left in charge of the householder, lays down that the owner shall look to the bailee alone, and the bailee shall hold the thief both for the housebreaking and for the stolen goods. Because, as it says, we cannot raise two claims out of one causa; somewhat as our law was unable to divide the severing a thing from the realty, and the conversion of it, into two different wrongs. Compare, further, Jones, Bailm. 112; Exodus xxii. 10-12; LL. Alfred, 28; I Thorpe, Anc. L., p. 51; Gaii Inst., III. Sections 202-207. 167/1 XXXI. 16. 168/1 "Peterit enim rem suam petere [civiliter] ut adiratam per testimonium proborum hominum, et sic consequi rem suam quamvia furatam. . . Et non refert utrum res que ita subtracta fuit extiterit illius appellantis propria vel alterius, dum tamen de custodia sua." Bract., fol. 150 b, 151; Britton (Nich. ed.), I. 59, 60 [23 b], De Larcyns; cf. ib. 67 [26 b]; Fleta, fol. 5i, L. I. c. 38, Section 1. 169/1 Y.B. 21 & 22 Ed. I. 466-468, noticed in North Amer. Rev., CXVIII. 421, n. (So Britton [26 b], "Si il puse averreer la perte.") This is not trover. The declaration in detinue per inventionem was called "un newfound Haliday" in Y.B. 33 Hen. VI. 26, 27; cf. 7 Hen. VI. 22, pl. 3; Isack v. Clarke, I Rolle, R. 126, 128. 169/2 Y.B. 2 Ed. IV. 4, 5, pl. 9; 21 Hen. VII. 39, pl. 49; Bro. Trespass, pl. 216, 295. 169/3 2 Wms. Saund. 47, n. 1. See above, p. 167. 170/1 Notes to Saunders, Wilbraham v. Snow, note (h). 170/2 Y.B. 11 Hen. IV. 23, 24. See, further, Y.B. 8 Ed. IV. 6, pl. 5; 9 Ed. IV. 34, pl. 9; 3 Hen. VII. 4, pl. 16; 20 Hen. VII. 1, pl. 1; 21 Hen. VII. 14 b, pl. 23; 13 Co. Rep. 69; 1 Roll. Abr. 4(I), pl. I; F. N. B. 86, n. a; supra, p. 167. 170/3 Fitz. Abr. Barre, pl. 130; Y.B. 9 Ed. IV. 34, pl. 9; 12 Am. Law Rev. 694. 171/1 2 Steph. Comm. (6th ed.), 83, cited Dicey, Parties, 353; 2 Bl. Comm. 453; 2 Kent, 585. As the bailee recovered the whole value of the goods, the old reason, that he was answerable over, has in some cases become a new rule, (seemingly based on a misunderstanding,) that the bailee is a trustee for the bailor as to the excess over his own damage. Cf. Lyle v. Barker, 5 Binn. 457, 460; 7 Cowen, 68l, n.; White v. Webb, 15 Conn. 302, 305; in the order cited. (Thence the new rule has been extended to insurance recovered by a bailee. 1 Hall, N. Y. 84, 91; 3 Kent's Comm. (12th ed.), 371, 376, n. 1 (a).) In this form it ceases to be a reason for allowing the action. 171/2 Y.B. 48 Ed. III. 20, pl. 8; Bro. Trespass, pl. 67. Cf. 1 Britton (Nich. ed.), 67 [26 b]; Y.B. 6 Hen. VI1. 12, pl. 9; 12 Ed. IV. 13, pl. 9; 12 Am. Law Rev. 694. 172/1 Y.B. 22 Ed. IV. 5, pl. 16. 172/2 2 Rolle, Abr. 569, Trespass, 5. Cf. Y.B. 20 Hen. VII. 5, pl. 15; 21 Hen. VII. 39, pl. 49; Clayton, 135, pl. 243; 2 Wms. Saund. 47 e (3d ed.). 172/3 Bro. Trespass, pl, 67 in marg.; cf. Ed. Liutpr. 131, cited supra, p. 166, n. 172/4 In one instance, where, against the opinion of Brian, the bailor was allowed to sue for damage to the chattel by a stranger, the action seems to have been case. Y.B. 12 Ed. IV. 13, pl. 9; cf. the margin of the report. 173/1 Gordon v. Harper, 7 T. R. 9; Lord v. Price, L. IL 9 Ex. 54; Muggridge v. Eveleth, 9 Met. 233. Cf. Clayton, 135, pl. 243. 173/2 Nicolls v. Bastard, 2 C. M. & R. 659, 660; Manders v. Williams, 4 Exch. 339, 343, 344; Morgan v. Ide, 8 Cush. 420; Strong v. Adams, 30 Vt. 221, 223; Little v. Fosseft, 34 Me. 545. 173/3 2 Camp. 464; cf. Mears v. London & South-Western Railway Co., 11 C.B. N.S. 849, 854. 173/4 Addison, Torts (4th ed.), 364. 174/1 Wms. Pers. Prop., 26 (5th ed.), 27 (7th ed.). 174/2 Booth v. Wilson, I B. & Ald. 59; Y.B. 48 Ed. III. 20, pl. 8; 11 Hen. IV. 17, pl. 39; 11 Hen. IV. 23, 24, pl. 46 (Tre. "ou d'apprompter"); 21 Hen. VII. 14b, pl. 23; Godbolt, 173, pl. 239; Sutton v. Buck, 2 Taunt. 302, 309; Burton v. Hughes, 2 Bing. 173; Nicolls v. Bastard, 2 C. M. & R. 659, 660; Manders v. Williams, 4 Exch. 339, 343, 344; 2 Wms. Saund., note to Wilbraham v. Snow; 2 Kent, 585, 568, 574; Moran v. Portland S. P. Co., 35 Me. 55. See, further, Lecture VI. ad fin. 175/1 Cf. Lord v. Price, L.R. 9 Ex. 54, 56, supra, p. 172. 175/2 Supra, p. 167. 175/3 Lib. X. c. 13; cf. I., c. 8. 175/4 "Is qui rem commodatam accepit, ad ipsam restituendam tenetur, vel ejus precium, si forte incendio, ruins, naufragio, ant latronum, vel hostium incursu, consumpta fuerit vel deperdita, substracts, vel ablata." Fol. 99 a, b. This has been thought a corrupt text (Guterbock, Bracton, by Coxe, p. 175; 2 Twiss, Bract. Int. xxviii.), but agrees with Glanvill, supra, and with Fleta, L. II. c. 56, Section 5. 175/5 Bract., fol. 62 b, c. 28, Section 2; Fleta, L. II. e. 59, Section 4, fol. 128. Cf. Just. Inst. 3. 24, Section 5; ib. 15, Section 2. 176/1 Y.B. 8 Ed. II. 275; Fitz. Detinue, pl. 59. 176/2 2 Ld. Raym. 909. 176/3 Y.B. 13 Ed. IV. 9, pl. 5. See Lecture VI. 176/4 29 Ass. 163, pl. 28. 176/5 Cf. Ratcliff v. Davis, Yelv. 178; Cro. Jac. 244; Noy, 137; 1 Bulstr. 29. 176/6 Y.B. 33 Hen. VI. 1, pl. 3. This case is cited and largely relied on in Woodlife's Case, infra; Southcote v. Bennett, infra; Pickering v. Barkley, Style, 132 (24 Car. I., covenant on a charter-party); and Morse v. Slue, infra; in short, in all the leading cases on bailment. 177/1 Cf. Abbreviatio Plaeitorum, p. 343, col. 2, rot. 87, 17 Ed. II. 178/1 Y.B. 9 Ed. IV. 34, pl. 9; 2 Ed. IV. 15, pl. 7. It is proper to add, that in the latter case Littleton does not seem to distinguish between servants and bailees. 178/2 Y.B. 9 Ed. IV, 40, pl. 22. So Brian, in 20 Ed. IV. 11, pl. 10, ad fin. 178/3 Y.B. 10 Hen. VII. 25, 26, pl. 3. 178/4 Cf. L. Baiw., XV. 5; Y.B. 33 Hen. VI. 1, pl. 3. 178/5 Y.B. 6 Hen. VII. 12, pl. 9; Bro. Detinue, pl. 37; 10 Hen. VI. 21, pl. 69. 178/6 Y.B. 3 Hen. VII. 4, pl. 16. Cf. 10 Hen. VI. 21, pl. 69. 178/7 Y.B. 11 Hen. IV. 23, 24; 6 Hen. VII. 12, pl. 9. 178/8 Cro. Eliz. 815; 4 Co. Rep. 83 b; Co. Lit. 89; 2 BI. Comm. 452. 180/1 Savile, 133, 134. Cf. Bro. Accion sur le Case, pl. 103; Dyer, 161 a, b. 180/2 Nugent v. Smith, 1 C.P. D. 19, Brett, J., at p. 28. 180/3 Nugent v. Smith, 1 C.P. D. 423, Cockburn, C. J., at p. 428. 181/1 Moore, 462; Owen, 57. 181/2 Dial. 2, ch. 38, A.D. 1530. 182/1 Keilway, 160, pl. 2 (2 Hen. VIII.); cf. ib. 77b (21 Hen. VII.). 182/2 Y.B. 33 Hen. VI. 1, pl. 3. 182/3 4 Co. Rep. 83 b; Cro. Eliz. 815. 183/1 Keilway, 160, pl. 2. 183/2 Y.B. 19 Hen. VI. 49, ad fin. Cf. Mulgrave v. Ogden, Cro. Eliz. 219; S.C., Owen, 141, 1 Leon. 224; with Isaack v. Clark, 2 Bulstr. 306, at p. 312, Coke, J. 183/3 See Lecture VII. 184/1 Paston, J., in Y.B. 19 Hen. VI. 49. See, also, Rogers v. Head, Cro. Jac. 262; Rich v. Kneeland, Cro. Jac. 330, which will be mentioned again. An innkeeper must be a common innkeeper, Y.B. 11 Hen. IV. 45. See further, 3 Bl. Comm. 165, where "the transition from status to contract" will be found to have taken place. 184/2 F. N. B. 94 D; infra, p. 203. 184/3 Y.B. 7 Hen. IV. 14; 12 Ed. IV. 13, pl. 9, 10; Dyer, 22 b. 184/4 The process may be traced by reading, in the following order, Y.B. 2 Hen. VII. 11; Keilway, 77 b, ad fin. (21 Hen. VII.); ib. 160, pl. 2 (2 Hen. VIII.); Drake v. Royman, Savile, 133, 134 (36 Eliz.); Mosley v. Fosset, Moore, 543 (40 Eliz.); 1 Roll. Abr. 4, F, pl. 5; Rich v. Kneeland, Cro. Jac. 330 (11 Jac. I.). 185/1 Cro. Jac. 262 (8 Jac. I.). Compare Maynard's argument in Williams v. Hide, Palmer, 548; Symons v. Darknoll, ib. 523, and other cases below; 1 Roll. Abr. 4, F, pl. 3. Mosley v, Fosset, Moore, 543 (40 Eliz.); an obscurely reported case, seems to have been assumpsit against an agistor, for a horse stolen while in his charge, and asserts obiter that "without such special assumpsit the action does not lie." This must have reference to the form of the action, as the judges who decided Southcote's Case took part in the decision. See, further, Evans v. Yeoman, Clayton, 33. 186/1 See Symons v. Darknoll, and the second count in Morse v. Slue infra. (The latter case shows the averment of negligence to have been mere form.) Cf. I Salk. 18, top. 187/1 Supra, p. 179. 187/2 Boson v. Sandford, Shower, 101; Coggs v. Bernard, infra. 187/3 Symons v. Darknoll, infra. 188/1 Reg. Brev. 92b, 95a, 98a, 100b, 104a; cf. Y.B. 19 Ed. II. 624; 30 Ed. III. 25, 26; 2 Hen. IV. 18, pl. 6; 22 Hen. VI. 21, pl. 38; 32 & 33 Ed. I., Int., xxxiii.; Brunner, Schwurgerichte, 177; id. Franzosische, Inhaberpapier, 9, n. 1. 188/2 12 Co. Rep. 64. 188/3 See, besides the following cases, the declaration in Chamberlain v. Cooke, 2 Ventris, 75 (1 W. & M.), and note especially the variations of statement in Morse v. Slue, set forth below, in the text. 189/1 Hobart, 17; Cro. Jac. 330. See also George v. Wiburn, 1 Roll. Abr. 6, pl. 4 (A.D. 1638). 190/1 The use which has been made of this case in later times shows the extreme difficulty in distinguishing between principles of substantive law and rules relating only to procedure, in the older books. 190/2 Y.B. 22 Hen. VI. 21, pl. 38; supra, p. 188, n. 1. 191/1 Palmer, 523. 191/2 Palmer, 548. 191/3 Aleyn, 93. 191/4 1 Sid. 36. 192/1 1 Sid. 244. Cf. Dalston v. Janson, 1 Ld. Raym. 58. 192/2 2 Keb. 866; 3 id. 72, 112, 135; 2 Lev. 69; I Vent. 190, 238; 1 Mod. 85; Sir T. Raym. 220. 193/1 2 Keb. 866. See 3 Keb. 74; 1 Mod. 85; Sir T. Raym. 220. 193/2 2 Keb. 72. 193/3 Y.B. 33 Hen. VI. 1; supra, p. 177. 193/4 3 Keble, 73. This is the main point mentioned by Sir T. Raymond and Levinz. 193/5 Cf. 1 Mod. 85. 194/1 1 Ventris, 238, citing Southcote's Case in the margin. Cf. 3 Keble, 135. 194/2 Aleyn, 93; supra, p. 191. 194/3 See also 1 Hale, P.C. 512, 513. 195/1 King v. Viscount Hertford, 2 Shower, 172, pl. 164; cf. Woodlife's Case, supra. 195/2 Boson v. Sandford, 1 Shower, 101 (2 W. & M.). See above, pp. 183,185; below, p. 197. Modern illustrations of the doctrine will be found in Fleming v. Manchester, Sheffield, & Lincolnshire Railway Co., 4 Q.B.D. 81, and cases cited. In Boorman v. Brown, 3 Q.B.511, 526, the reader the primitive assumpsit, which was the inducement to a declaration in tort, interpreted as meaning contract in the modern sense. It will be seen directly that Lord Holt took a different view. Note the mode of dealing with the Marshal's case, 33 Hen; VI. 1, in Aleyn, 27. 196/1 See Lovett v. Hobbs, 2 Shower, 127 (32 Car. II.); Chamberlain v. Cooke, 2 Ventris, 75 (1 W. & M.); Boson v. Sandford, 1 Shower, 101, citing Southcote's Case (2 W. & M.); Upshare v. Aidee, 1 Comyns, 25 (8 W. III.); Middleton v. Fowler, I Salk. 288 (10 W. III.). 196/2 12 Mod. 472. 196/3 2 Ld. Raym. 909. 197/1 Powtuary v. Walton, 1 Roll. Abr. 10, pl. 5 (39 Eliz.). Cf. Keilway, 160. 197/2 2 Ld. Raym. 919. See Lecture VII. How little Lord Holt meant to adopt the modern view, that delivery, being a detriment to the owner, was a consideration, may be further seen by examining the cases put and agreed to by him from the Year Books. 199/1 2 Kent, 598; 1 C.P. D. 429. 199/2 Palmer, 523. See too Keilway, 77 b, and 160, pl. 2, where the encroachment of case on detinue, and the corresponding confusion in principle, may be pretty clearly seen taking place. But see p. 175, supra. 200/1 2 Kent, 597; Forward v. _Pittard, 1 T. R. 27. 200/2 Cf. Y.B. 7 Hen. IV. 14; 2 Hen. VII. 11; Keilway, 77 b, 160, pl. 2, and other cases already cited. 200/3 Y.B. 41 Ed. III. 3, pl. 8. 200/4 Y.B. 33 Hen. YI. 1, pl. 3. 200/5 Reg. Brev. 107 a, 108 a, 110 a, b; entries cited 1 T. R. 29. 200/6 See above, pp. 167, 175 et seq.; 12 Am. Law Rev. 692, 693; Y.B. 42 Ed. III. 11, pl. 13; 42 Ass., pl. 17. 201/1 1 Wilson, 282; cf. 2 Kent (12th ed.), 596, n. 1, b. 201/2 Y.B. 33 Hen. VI. 1, pl. 3. 202/1 Mouse's Case, 12 Co. Rep. 63. 202/2 Bird v. Astcock, 2 Bulstr. 280; cf. Dyer, 33 a, pl. 10; Keighley's Case, 10 Co. Rep. 139 b, 140. 202/3 Y.B. 40 Ed. III. 5, 6, pl. 11; see also Willams v. Hide, Palmer, 548; Shep. Touchst. 173. 203/1 See Safe Delcosit Company of Pittsburgh v. Pollock, 85 Penn. 391. 203/2 Paston, J., in Y.B. 21 Hen. VI. 55; Keilway, 50 a, pl. 4; Hardres, 163. 203/3 Lane v. Cotton, 1 Ld. Raym. 646, 654; 1 Salk. 18; 12 Mod. 484. 204/1 Forward v. Pittard, 1 T. R. 27, 83. 205/1 Printing and Numerical Registering Co. v. Sampson, L.R. 19 Eq. 462, 465. 207/1 Possession, Section 6, Eng. tr., pp. 27, 28. 207/2 R. d. Besitzes, 487. 208/1 R. d. Besitzes, 490, 491. 208/2 Bruns, R. d. Besitzes, 415; Windscheid, Pand. Section 148, n. 6. Further Hegelian discourse may be found in Dr. J. Hutchison Sterling's Lectures on the Philosophy of Law. 208/3 Institutionen, Sections 224, 226; Windscheid, Pand. Section 148, n. 6. 208/4 Windscheid, Pand. Section 148, n. 6. 208/5 Besitzklagen, 276, 279. 209/1 Bruns, R. d. Besitzes, 499. 209/2 Bruns, R. d. Besitzes, Section 2, pp. 5 et seq.; Puchta, Besitz, in Weiske, Rechtslex.; Windscheid, Pand. Section 154, pp. 461 et seq. (4th ed.). 209/3 D. 41.2.3, Section 20; 13.6.8 & 9. Cf. D. 41.1.9, Section 5. 210/1 But see Ihering, Geist d. Rom. R., Section 62, French tr., IV. p. 51. 210/2 Heusler thinks this merely a result of the English formalism and narrowness in their interpretation of the word suo in the writ (disseisivit de teuemento suo). Gewere, 429-432. But there was no such narrowness in dealing with catalla sua in trespass. See below, p. 242. 210/3 See, further, Bracton, fol. 413; Y.B. 6 Hen. VII. 9, pl. 4. 211/1 Infra, p. 243. 211/2 R. d. Besitzes, 494. 212/1 Rogers v. Spence, 13 M. & W. 579, 581. 212/2 Webb v. Fox, 7 T. R. 391, 397. 212/3 Fennings v. Lord Grenville, 1 Taunt. 241; Littledale v. Scaith, ib. 243, n. (a); cf. Hogarth v. Jackson, M. & M. 58; Skinner v. Chapman, ib. 59, n. 212/4 Swift v. Gifford, 2 Lowell, 110. 212/5 1 Taunt. 248. 213/1 Cf. Wake, Evolution of Morality, Part I. ch. 4, pp. 296 et seq. 215/1 Asher v. Whitlock, L.R. 1 Q.B.1. 215/2 People v. Shearer, 30 Cal. 645. 217/1 2 Kent's Comm. 349, citing Pierson v. Post, 3 Caines, (N. Y.) 175; Buster v. Newkirk, 20 Johnson, (N. Y.) 75. 217/2 Young v. Hichens, 6 Q.B.606. 217/3 2 Kent's Comm. 349, n. (d). 218/1 Inst. 2. 1, Section 13. 218/2 Swift v. Gifford, 2 Lowell, 110. 218/3 Savigny, R. d. Besitzes, Section 21. 218/4 II. 9, Section 4; III. 29, Section 2. Animus domini will be used here as shortly indicating the general nature of the intent required even by those who deny the fitness of the expression, and especially because Savigny's opinion is that which has been adopted by English writers. 219/1 Cf. Bruns, R. d. Besitzes, 413, and ib. 469, 474, 493, 494, 505; Windscheid, Pand. Section 149, n. 5 (p. 447, 4th ed.); Puchta, Inst. Section 226. 219/2 Supra, p. 207; 2 Puchta, Inst. Section 226 (5th ed.), pp. 545, 546. 221/1 15 Jur. 1079; 21 L. J. Q.B.75; 7 Eng. L. & Eq. 424. 222/1 11 Allen, 548. 223/1 Kincaid v. Eaton, 98 Mass. 139. 223/2 Barker v. Bates, 13 Pick. 255, 257, 261; Proctor v. Adams, 113 Mass. 376, 377; 1 Bl. Comm. 297, Sharsw. ed., n. 14. Cf. Blades v. Hiqgs, 13 C.B. N.S. 844, 847, 848, 850, 851; 11 H. L. C. 621; Smith v. Smith, Strange, 955. 223/3 Reg. v. Rowe, Bell, C.C. 93. 224/1 See, as to treasure hidden in another's land, D. 41. 2. 44, pr.; D. 10. 4. 15. Note the different opinions in D. 41.2. 3, Section 3. 224/2 3 Inst. 107; 1 Hale, P.C. 504, 505; 2 Bishop, Crim. Law, Sections 834, 860 (6th ed.). 224/3 Reg. v. Middleton, L.R. 2 C.C. 38, 55. Cf. Halliday v. Holgate, L.R. 3 Ex. 299, 302. 224/4 Cf. Y.B. 8 Ed. II. 275; Fitzh. Abr. Detinue, ph 59; Y.B. 13 Ed. IV. 9, pl. 5; Keilway, 160, pl. 2; Merry v. Green, 7 M. & W. 623, 630. It may not be necessary to go quite so far, however, and these cases are not relied on as establishing the theory. For wrong explanations, see 2 East, P.C. 696. 225/1 Durfee v. Jones, 11 R. I. 588. 225/2 Reg. v. Rowe, Bell, C.C. 93, stated above. 225/3 8 Ves. 405; 7 M. & W. 623; Stephen, Crim. Law, Art. 281, Ill. (4), p. 197. He says, "because [the owner of the safe] cannot be presumed to intend to act as the owner of it when he discovers it,"--a reason drawn from Savigny, but not fitted to the English law, as has been shown. 226/1 Y.B. 13 Ed. IV. 9, 10, pl. 5; 21 Hen. VII. 14, pl. 21. Cf. 3 Hen. VII. 12, pl. 9; Steph. Crim. Law, Art. 297, and App., note xvii. 226/2 Steph. Crtre. Law, Art. 297, and App., note xvii. p. 882. It may be doubted whether the old law would have sanctioned the rule in this form. F. N. B. 91 E; Y.B. 2 Ed. IV. 15, pl. 7. 226/3 Y.B. 21 Hen. VII. 14, pl. 21; 13 Co. Rep. 69. 227/1 They have been said to be a part of the family pro hac vice. Southcote v. Stanley, 1 H. & N. 247, 250. Cf. Y.B. 2 Hen. IV. 18, pl. 6. 227/2 Moore, 248, pl. 392; S.C., Owen, 52; F. N. B. 91 E; 2 B1. Comm. 396; 1 H. Bl. 81, 84; 1 Chitty, Pl. 170 (1st ed.); Dicey, Parties, 358; 9 Mass. 104; 7 Cowen, 294; 3 S. & R. 20; 13 Iredell, 18; 6 Barb. 362, and cases cited. Some of the American cases have been denied, on the ground that the custodian was not a servant. Cf. Holiday v. Hicks, Cro. Eliz. 638, 661, 746; Drope v. Theyar, Popham, 178, 179. 228/1 Bracton, fol. 6 a, Section 3, 12 a, 17 a, Cap. V. ad fin., 25 a, b, etc.; Pucbra, Inst. Section 228. 228/2 See also 7 Am. Law Rev. 62 et seq.; 10 Am. Law Rev. 431; 2 Kent, Comm. (12th ed.), 260, n. 1. 228/3 1 Comm. 427. Cf. Preface to Paley on Agency. Factors are always called servants in the old books, see, e. g., Woodlife's Case, Owen, 57; Holiday v. Hicks, Cro. Eliz. 638; Southcote's Case, 4 Co. Rep. 83 b, 84 a; Southern v. How, Cro. Jac. 468; St. 21 Jac. I., c. 16, Section 3; Morse v. Slue, 3 Keble, 72. As to bailiffs, see Bract. 26 b, "Reestituat domino, vel servienti," etc.; Y.B. 7 Hen. IV. 14, pl. 18. 229/1 Paley, Agency, c. 4, Section 1, citing Godbolt, 360. See, further, F. N. B. 120, G; Fitzh. Abr. Dette, pl. 3; Y.B. 8 Ed. IV. 11, pl. 9. These rules seem to be somewhat modern even as to servants. The liability of a master for debts contracted by his servant is very narrowly limited in the earlier Year Books. 230/1 I am inclined to think that this extension has been largely due to the influence of the Roman law. See Lecture I. p. 20, n. 1, and observe the part which the precedents as to fire (e. g., Y.B. 2 Hen. IV. 18, pl. 6) have played in shaping the modern doctrine of master and servant. Tuberville v. Stampe, I Ld. Raym. 264 (where Lord Holt's examples are from the Roman law); Brucker v. Fromont, 6 T. R. 659; M'Manus v. Crickett, 1 East, 106; Patten v. Rea, 2 C.B. N.S. 606. In Southern v. How, Popham, 143, Doctor and Student is referred to for the general principles of liability. Doctor and Student states Roman law. See, further, Boson v. Sandford, 1 Shower, 101, 102. 230/2 Bac. Ahr. Master and Servant, K; Smith, Master and Servant (3d ed.), 260, n. (t). 230/3 Clapp v. Kemp, 122 Mass. 481; Murray v. Currie, L.R. 6 C.P. 24, 28; Hill v. Morey, 26 Vt. 178. 230/4 See, e.g., Patten v. Rea, 2 C.B. N.S. 606; Bolingbroke v. Swindon Local Board, L.R. 9 C.P. 575. 230/5 Freeman v. Rosher, 13 Q.B.780, 785; Gauntlett v. King, 3 C. B. N.S. 59; Haseler v. Lemoyne, 28 L. J. C.P. 103; Collett v. Foster, 2 H. & N. 356; Barwick v. English Joint Stock Bank, L.R. 2 Ex. 259, 265, 266; Lucas v. Mason, L.R. 10 Ex. 251, 253, last paragraph; Mackay v. Commercial Bank of New Brunswick, L.R. 5 P.C. 394, 411, 412. So as to partners, 3 Kent's Comm. (12th ed.), 46, notes (d) & 1. 231/1 Bush v. Steinman, 1 B. & P. 404, 409. 231/2 6 M. & W. 358. Cf. Udell v. Atherton, 7 H. & N. 172, 184, for a comment like that in the text. Other grounds for the decision are immaterial here. 231/3 Mackay v. Commercial Bank of New Brunswick, L.R. 5 P.C. 394; Barwick v. English Joint Stock Bank, L.R. 2 Ex. 259; Western Bank of Scotland v. Addie, L.R. 1 H. L. Sc. 145; 2 Kent (12th ed.), 616, n. 1; Swift v. Jewsbury, L.R. 9 Q.B.301, overruling S.C. sub nom. Swift v. Winterbotham, L.R. 8 Q.B.244; Weir v. Bell, 3 Ex. D. 238, 244. The objections which Baron Bramwell mentions (L.R. 9 Q.B.815) to holding one man liable for the frauds of another, are objections to the peculiar consequences attaching to the relation of master and servant in general, and have been urged in that more general form by the same learned judge. 12 Am. Law Rev. 197, 200; 2 H. & N. 856, 361. See 7 Am. Law Rev. 61, 62. 231/3 7 Am. Law Rev. 63 (Oct. 1872). 232/1 D. 44. 2. 4, note 17, Elzevir ed. 232/2 Hunter's Roman Law, 431. 232/3 Ancient Hist. of Inst. 235. 232/4 Cf. Gillett v. Ball, 9 Penn. St. 13; Craig v. Gilbreth, 47 Me. 416; Nickolson v. Knowles, 5 Maddock, 47; Williams v. Port, L.R. 12 Eq. 149; Adams v. Jones, 12 Ad. & El. 455; Bracton, fol. 28 b, 42 b, 43. And compare with the passage cited above from Blackstone: "Possider, cujus riomine possidetur, procurator alienae possessioni praestat ministerium." D. 41. 2. 18, pr. 233/1 Ward v. Macaulay, 4 T. R. 489, 490. Cf. as to factors supra, p. 228. 233/2 Berndtson v. Strang, L.R. 3 Ch. 588, 590. 233/3 Blackburn, Sale, 33; Marvin v. Wallis, 6 El. & Bl. 726. 233/4 D. 41. 2. 18, pr. "Quod meo nomine possideo, possum alieno nomine possidere: nec enim muto mihi causam possessionis, sed desino possidere et alium possessorem ministerio meo facio. Nec idem est possidere et alieno nomine possidere: nam possidet, cujus nomine possidetur, procurator alienae possessioni praestat ministerium." Thus showing that the vendor changed possession by holding in the name of the purchaser, as his agent to possess. Cf. Bracton, fol. 28 b. 233/4 Windscheid, Pand. Section 155, n. 8 a; 2 Kent (12th ed.), 492, n. 1 (a). It should be kept in mind also that the Roman law denied possession to bailees. 234/1 See, e. g., Farina v. Home, 16 M. & W. 119, 123. 235/1 McGahey v. Moore, 3 Ired. (N. C.) 35. 235/2 Reader v. Moody, 3 Jones, (N. C.) 372. Cf. Basset v. Maynard, Cro. Eliz. 819, 820. 235/3 Browne v. Dawson, 12 A. & E. 624. Cf. D. 43. 16. 17; ib. 3, Section 9; D. 41. 2. 18, Section 3; Clayton, 147, pl. 268. 236/1 Cf. Bruns, R. d. Besitzes, 503. 237/1 Clark v. Maloney, 3 Harrington (Del.), 68. Bruns (R. d. Besitzes, 503, 507) comes to the same conclusion on practical grounds of convenience, although he utterly repudiates it on theory. I must refer to what I said above touching these conflicts between theory and convenience. 238/1 Bruns, R. d. Besitzes, Section 57, p. 486. A learned writer of more ancient date asks why a doctor has not a possessory action if you cease to employ him, and answers: "Sentio actionem non tenere, sed sentio tantum, nec si vel morte mineris, possum dicere quare. Tu lector, si sapis, rationes decidendi suggere." Hommel, Rhaps., qu. 489, cited, Bruns, 407. 239/1 Gardiner v. Thibodeau, 14 La. An. 732. 239/2 Bruns, 483. 240/1 2 Kent (12th ed.), 205, n. 1. Cf. Y.B. 21 Hen. VI. 8, 9, pl. 19; American note to Scott v. Shepherd, in 1 Sm. L. C. (Am. ed.). 240/2 Britton (Nich. ed.), I. 277 (cf. Bract., fol. 164 b; Fleta, fol. 214; Glanv., Lib. XIII. c. 37); Littleton, Sections 237-240, 588, 589; 3 Bl. Comm. 170; 3 Cruise, Dig., tit. xxviii., Rents, ch. 2, Section 34. 241/1 See Lecture XI. 241/2 Cf. Stockport Water Works v. Potter, 3 H. & C. 300, 318. The language in the seventh English edition of 1 Sm. L. C., 300, is rather too broad. If the law should protect a possessor of land in the enjoyment of water coming to it, it would do so because the use of the water was regarded as a part of the enjoyment of that land, and would by no means imply that it would do the same in the case just put of a way over land of another. 242/1 Jefferies v. Great Western Railway Co., 5 El. & B1. 802. Cf. Armory v. Delamirie, 1 Strange, 505, 1 Sm. L. C. 242/2 Co. Lit. 145 b. 242/3 2 Wms. Saund. 47 b, note 1, to Wilbraham v. Snow. 242/4 Bract., fol. 150 b, 151; supra, p. 168; Y.B. 22 Ed. I. 466-468. 242/5 Y.B. 48 Ed. III. 20; 11 Hen. IV. 17; 11 Hen. IV. 23, 24; 21 Hen. VII. 14. The meaning of sua is discussed in Y.B. 10 Ed. IV. 1, B, by Catesby. Compare Laband, Vermogensrechtlichen Klagen, 111; Heusler, Gewere, 492 et seq., correcting Bruns, R. d. Besitzes, 300 et seq.; Sohm, Proc. d. L. Sal., Section 6. 243/1 Y.B. 11 Hen. IV. 17, pl. 39. 243/2 Y.B. 21 Hen. VII. 14 b, pl. 23. 243/3 Godbolt, 173, pl. 239. Cf. 11 Hen. IV. 17, pl. 39. 243/4 Bro. Abr. Trespass, pl. 433, cit. Y.B. 13 Hen. VII. 10. 243/5 Kelyng, 89. See, further, Buller, N. P. 33. 243/6 Lecture V.; Y.B. 20 Hen. VII. 1, pl. 11. 243/7 Y.B. 21 lien. VII. 14 b, pl. 23. 243/8 1 Roll. Abr. 4, 5 (I), pl. 1. Cf. Arnold v. Jefferson, 1 Ld. Raym. 275. 244/1 29 Ass., fol. 163, pl. 28. 244/2 Southcote's Case, 4 Co. Rep. 83 b. 244/3 Mores v. Conham, Owen, 123. Cf. Ratcliff v. Davis, I Bulstr. 29. 244/4 Doe v. Dyball, Mood. & M. 346 and note; 2 Wms. Saund. 111, and later notes; I Ad. & El. 119; Asher v. Whitlock, L.R. 1 Q.B.1. 244/5 Graham v. Peat, 1 East, 244. 245/1 As to this period see Heusler, Gewere. Cf. Laveleye, Propriete, 166. 248/1 2 Hist. du Droit Franc., pp. 146 et seq, 152. 248/2 Anciens Poetes de la France, (Guessard,) p. 71. 248/3 Page 283; cf. 284, cxviii, et seq., 44, lxix. 249/1 Sohm, Proc. d. Lex. Sal., Sections 15, 23-25, tr. Thevenin, pp. 80, 105, 122. 249/2 Essays in A. S. Law, p. 292. 249/3 Cap. VIII., Merkel, p. 48. 249/4 Cap. LXXXIX. Section 3, Essays in A. S. Law, p. 291. 249/5 Chap. IV. Section 16. 250/1 Fitzh. Abr. Mainprise, pl. 12 (H. 33 Ed. III.); Staundforde, P.C. 65. 250/2 Abbr. Plac., p. 343, col 2, rot. 37, 17 Ed. II. 250/3 Jacob, L. D., "Bail." Cf. I Bulstr. 45; .Hawkins, P.C., II. ch. 15, Section 83; Abbr. Plac., p. 343, col. 2, rot. 37, 17 Ed. II. 250/4 Highmore, Bail, p. 199; Jacob, L. D., "Bail." Cf. 2 Laferriere, Hist. du Droit Franc., p. 148. 250/5 Highmore, p. 195. 250/6 Ibid., p. 200. 252/1 Vermoegensrechtlichen Klagen. 253/1 II. c. 60, Section 25. Glanvill's "justa debendi causa" (Lib. X. c. 4) seems remote from consideration. 254/1 Y.B. 3 Hen. VI. 36. 254/2 Y.B. 37 Hen. VI. 13, pl. 3. 254/3 Y.B. 37 Hen. VI. 8, pl. 33. 254/4 Glanv., Lib. X. c. 12; Bract, fol. 400b, Section 10; 22 Ass., pl. 70, fol. 101. 255/1 Essays in A. S. Law, 187. 256/1 I. 45; III. 10. 256/2 Lib. X. e. 17. Suit, secta, was the term applied to the persons whose oath the party tendered. 257/1 Lib. X. c. 12 (Beames, p. 262); c. 8 & c. 5 (Beames, pp. 256, 251); cf. IV. c. 6, where witnesses are tendered de visu et auditu. Cf. Bract., 315 b, Section 6 Fleta, II. c. 63, Section10, p. 137. It was no doubt true, as Glanvill says, Lib. X. c. 17, that the usual mode of proof was by a writing or by duel, and that the King's Court did not generally give protection to private agreements made anywhere except in the Court of the King (Lib. X. c. 8). But it can hardly be that debts were never established by witness in his time, in view of the continuous evidence from Bracton onwards. 257/2 But cf. Brunner, Schwurgerichte, 399. I do not go so far as to say that they were still a living institution. However that may be, tradition must at least have modelled itself on what had been the function of the former official body. 257/3 Bract., fol. 315 b, Section 6; Britt. (Nich.) I. p. 162; Magna Charta, c. 38; Y.B. 21 Ed. I. 456; 7 Ed. II. 242; 18 Ed. II. 582; 3 Bl. Comm. 295, 344. Cf. 17 Ed. III. 48 b. 257/4 Cf. Glanv., Lib. IV. c. 6. 258/1 Lib. X. c. 18. It is possible that this means no more than Glanvill's often repeated statement, that the King's Court did not, generally speaking, take cognizance of private agreements. The substantive law was, perhaps, still limited by traditions from the infancy of contract. See pp. 248, 251, 259, 260. The proposition in its broadest form may have been based on the inability to try such agreements in any way but those which have been specified. Cf. the requirement of aliam diracionationem and aliis probationibus, in Lib. X. c. 12. But cf. Ibid. with Essays in A. S. Law, pp. 189, 190. 259/1 Sharington v. Strotton, Plowden, 298, at p. 302, M. 7 & 8 Eliz. 259/2 Pillans v. Van Mierop, 3 Burrow, 1663, 1669. 260/1 1 Thorpe, Anc. Laws, 181, Oaths, 7, 8. 260/2 Glanv., Lib. X. c. 5 (Beames, p. 251); Y.B. 7 Ed. II. 242; Novae Narr. Dette-Vers plege, Rastell's Law Tracts, p. 253, D, 2 Finl. Reeves, 376. 261/1 Glanv., Lib. X. c. 22 (Beames, p. 263); Bract., fol. 398 b, Section 1. The favorite proof by duel was also allowed, but this disappeared. When the inquest became general, the execution of the deed was tried, like any other fact, by that means. 261/2 Bract., fol. 315 b, Section 6, 400 b; Coke, 2d Inst., 44, 45. 262/1 Glanv., Lib. X. c. 12 (Beames, p. 263); Bract., fol. 100 b, Section 9. 262/2 Glanv., Lib. X. c. 17 (Beames, p. 272). 262/3 Bract., fol. 400 b, Section 9. 262/4 Cf. Y.B. 20 Ed. I. 304, and 34 Ed. II., 150, 152; ib. 330, 332; 35 Ed. I. 546. 263/1 Bract., fol. 400 b, Section 8. 263/2 Cf. Y.B. 20 Ed. I. 304. 263/3 Cap. 28; 32 & 33 Ed. I. 516; 18 Ed. II. 582; Fleta, II. c, 63, Section 9; Coke, 2d Inst., 44; 3 Bl. Comm. 344. 263/4 Y.B. 18 Ed. II. 582; 17 Ed. III. 48 b, pl. 14. 264/1 Y.B. 29 Ed. III. 25, 26; cf. 48 Ed. III. 6, pl. 11; Fleta, II. c. 60, Section 25; Glanvill, Lib. X. c. 12. 264/2 Cf. Bro..Acc. sur le Case, pl. 5; S.C., 27 Hen. VIII. 24, 25, pl. 3. 264/3 Y.B. 18 Ed. III. 13, pl. 7. 264/4 Y.B. 44 Ed. III. 21, pl. 23. 264/5 F. N. B. 122, I, in margin. Cf. F. N. B. 122 K; Y.B. 43 Ed. III. 11, pl. 1; S.C., Bro. Pledges, pl. 3; 9 Hen. V. 14, pl. 23. 265/1 Y.B. 17 Ed. III. 48 b, pl. 14. Cf. Fortescue (Amos), 67, n.; 3 Bl. Comm. 295. 265/2 For limit, see Constit. of Clarendon, c. 15; Glanv., Lib. X. c. 8, 12; Y.B. 22 Ass., pl. 70, fol. 101; 45 Ed. III. 24, pl. 30; 19 R. II., Fitzh. Abr. Dett, pl. 166; 37 Hen. VI. 8, pl. 18; 14 Ed. IV. 6, pl. 3; 15 Ed. IV. 32, pl. 14; 19 Ed. IV. 10, pl. 18; 20 Ed. IV. 3, pl. 17. 266/1 See for an illustration 2 Kent's Comm. (12th ed.), 451, n. 1 (b). 266/2 Repromittatur, but cf. pro servitio tuo vel pro homagio, Fleta, II. c. 60, Section 25. 267/1 Y.B. 29 Ed. III. 25, 26. But cf. 48 Ed. III. 3, pl. 6. 267/2 19 R. II., Fitzh. Abr. Dett, pl. 166. 267/3 Y.B. 12 Hen. IV. 17, pl. 13, ad fin. 267/4 Y.B. 9 Hen. V. 14, pl. 23. 267/5 (Cf. 13 Ed. II. 403; 17 Ed. IIL 48, pl. 14; 29 Ed. III. 25, 26.) 41 Ed. III. 7, pl. 15; 46 Ed. III. 6, pl. 16; Fitzh. Abr. Dett, pl. 166. 267/6 Y.B. 3 Hen, VI. 36, pl. 33. 268/1 Y.B. 37 Hen. VI. 8, pl. 18. 268/2 E. g., Rolfe in Y.B. 3 Hen. VI. 36, pl. 23. 269/1 Y.B. 37 Hen. VI. 8, pl. 18. Cf. Bro. Feoffements al Uses, pl. 54; Plowden, 301. 269/2 Y.B. 15 Ed. IV. 32, pl. 14; (S.C., 14 Ed. IV. 6, pl. 3;) 17 Ed. 4, pl. 4. 269/3 Cf. Y.B. 37 Hen. VI. 8, pl. 18; 17 Ed. IV. 4, 5; Plowden, 305, 306. 269/4 Y.B. 3 Hen. VI. 36, pl. 33. 269/5 Y.B. 37 Hen. VI. 13. 269/6 As to requirement of certain sum, cf. Y.B. 12 Ed. II. 375; Fleta, II. c. 60, Section 24. 270/1 Y.B. 29 Ed. III. 25, 26; 40 Ed. III. 24, pl. 27; 43 Ed. II1. 2, pl. 5. 270/2 Y.B. 43 Ed. III. 2, pl. 5; 46 Ed. III. 25, pl. 10; 50 Ed. III. 5, pl. 11. 270/3 Cf. Glanv., Lib. X. c. 8; Fleta, II. c. 60, Section 25. 270/4 Y.B. 35 Ed. I. 454; 12 Ed. II. 375. 272/1 Ducange, "Sigilium"; Ingulph. 901. 272/2 Big. Pl. Ang. Norm. 177. 272/3 Big. Pl. Ant. Norm. 177; Bract., fol. 100 b, Section 9, "scriptura." But cf. Y.B. 30 Ed. I. 158; Fleta, II. c. 60, Section 25. 272/4 Y.B. 33 Ed. I. 354, 356; 35 Ed. I. 455, top; 41 Ed. III. 7, pl. 15; 44 Ed. III. 21, pl. 23. Cf. 39 Hen. VI. 34, pl. 46. 272/5 Y.B. 7 Ed. I. 242. Cf. 35 Ed. I. 452. 272/6 Cf. Bract., fol. 100 b, Section 9. 272/7 Cf. Glanv., Lib. X. c. 12; Dugdale, Antiq. Warwic. 673, cited Ducange, "Sigillum"; Bract., fol. 396 b, Section 3; I Britt. (Nich.)163, Section 17; Abbrev. Plac. 8 Joh., Berk. rot. 4, pp. 55, 56; ib. 19 Ed. I., Norf. & Surf. rot. 7, p. 284; ib. Index "Sigillum." 272/8 Y.B. 30 Ed. I. 158; Fleta, II. c. 60, Section 25, p. 130. 273/1 45 Ed. III. 24, pl. 30. 273/2 Bract., fol. 100 b, Section 9. 275/1 Cf. 5 Co. Rep. 13 b, 14 a, with 1 Roll. Rep. 126, 128; Y.B. 43 Ed. III 30, pl. 15. 275/2 Y.B. 46 Ed. III. 19, pl. 19; S.C. Bro. Acc. sur le Case, pl. 22. 275/3 Y.B. 22 Ass., pl. 4i, fol. 94. 276/1 Y.B. 43 Ed. III. 33, pl. 38. 277/1 Y.B. 11 Hen. IV. 33, pl. 60. 277/2 Y.B. 3 Hen. VI. 36, pl. 33. 277/3 Y.B. 2 Hen. IV. 3, pl. 9; 11 Hen. IV. 33, pl. 60. Cf. 3 Hen. VI. 36, 83. 279/1 Cf. 19 Hen. VI. 49, pl. 5 ad fin., Newton, C. J. 280/1 Cf. Y.B. 48 Ed. III. 6, pl. 11. 280/2 Cases supra; Y.B. 2 Hen. IV. 3, pl. 9; 11 Hen. IV. 33. Cf. 3 Hen. VI. 36, pl. 33; 20 Hen. VI. 34, pl. 4; 2 Hen. VII. 11, pl. 9. 281/1 Y.B. 48 Ed. III. 6, pl. 11. Cf. Fitzh. Abr. Acc. sur le case, pl. 37, 11 R. II; 14 Hen. VI. 18. But cf. 43 Ed. III. 33, pl. 38. 282/1 Cf. Candish's reasons for allowing wager of law with Y.B. 32 & 33 Ed. I., Preface, p. xxxvi., citing the old rules of pleading printed at the end of the tract entitled, Modus tenendi unum Hundredum sire Curiam de Recordo, in Rastell's Law Tracts, p. 410, E, F, G. 282/2 Y.B. 3 Hen. VI. 36, pl. 33. 282/3 Y.B. 2 Hen. IV. 3, pl. 9; 11 Hen. IV. 33, pl. 60; 3 Hen. VI. 36, pl. 33. 282/4 3 Hen. VI. 36, pl. 33. 283/1 Y.B. 14 Hen. VI. 18, pl. 58. 283/2 Ibid. Cf. 48 Ed. III 6, pl. 11. 283/3 Y.B. 19 Hen. VI. 49, pl. 5. See, further, Y.B. 20 Hen. VI. 25, pl. 11. 284/1 Cf. Y.B. 3 Hen. VI. 36, pl. 33. 284/2 Y.B. 2 Hen. VII. 11, pl. 9. Cf. 20 Hen. VI. 34, pl. 4. 284/3 Cf. Y.B. 14 Hen. VI. 18, pl. 58; 21 Hen. VII. 41, pl. 66, Fineux, C. J. 284/4 Keilway, 160, pl. 2 (2 Hen. VIII.); Powtuary v. Walton, 1 Roll. Abr. 10, pl. 5 (39 Eliz.); Coggs v. Bernard, 2 Ld. Raym. 909 (2 Anne, A.D. 1703). Supra, p. 195. 285/1 Sands v. Trevilian, Cro. Car. 193, 194 (Mich. 4 Car. I., A.D. 1629). 285/2 Bro. Acc. sur le Case, pl. 5; S.C., Y.B. 27 Hen. VIII. 24, 25, pl. 3; Sidenham v. Worlington, 2 Leon. 224, A.D. 1585. 285/3 Y.B. 21 Hen. VII. 30, pl. 5; ib. 41, pl. 66. 285/4 Y.B. 3 Hen. VI. 36, pl. 33. 286/1 Sharington v. Strotton, Plowden, 298 (Mich. 7 & 8 Eliz.); ib. 309, note on "the civil law." 286/2 Hunt v. Bate, 3 Dyer, 272 a (10 Eliz., A.D. 1568). 286/3 See Lecture VIII. Mr. Langdell, Contracts, Sections 92, 94, suggests the ingenious explanation for this doctrine, that it was then held that no promise could be implied in fact from the request. There may be evidence which I do not know, but the case cited (Bosden v. Thinne, Yelv. 40) for this statement was not decided until A.D. 1603, while the implication of Hunt v. Bate, supra, which was the authority followed by the cases to be explained, is all the other way. 286/4 Sidenham v. Worlington, 2 Leon. 224, A.D. 1585. 287/1 Read v. Baxter, 3 Dyer, 272 b, n. (26 & 27 Eliz.). Cf. Richards and Bartlet's Case, 1 Leon. 19 (26 Eliz.). 287/2 Bro. Acc. sur le Case, pl. 5; S.C., Y.B. 27 Hen. VIII. 24, 25, pl. 3; 3 Dyer, 272, n. 287/3 Marsh v. Rainsford, 3 Dyer, 272 b, n.; S.C., 2 Leon. 111, and Cro. Eliz. 59, sub. nom. Marsh v. Kavenford. 287/4 Smith and Smith's Case, 3 Leon. 88, A.D. 1583; Riches and Briggs, Yelv. 4, A.D. 1601; Pickas v. Guile, Yelv. 128, A.D. 1608. 288/1 Supra, p. 195. Lord Coke's caution not to rely on the abridgments is very necessary to the proper study of the history of consideration. The abridgments apply the doctrine to cases which make no mention of it, and which were decided before it was ever heard of. 290/1 Y.B. 46 Ed. III. 19, pl. 19; 19 Hen. VI. 49, pl. 5; Keilway, 160, pl. 2; Powtuary v. Walton, 1 Roll. Abr. 10, pl. 5; Coggs v. Bernaard, 2 Ld. Raym. 909. 290/2 Riches and Briggs, Yelv. 4, A.D. 1601; Pickas v. Guile, Yelv. 128. 291/1 Bainbridge v. Firmstone, 8 Ad. & El. 743, A.D. 1838. 291/2 Wilkinson v. Oliveira, 1 Bing. N. C. 490, A.D. 1835; Haigh v. Brooks, 10 Ad. & El. 309; lb. 323; Hart v. Miles, 4 C.B. N.S. 371, A.D. 1858. 291/3 Wheatley v. Low, Cro. Jac. 668, A.D. 1623. Cf. Byne and Playne's Case, 1 Leon. 220, 221 (32 & 33 Eliz.). 291/4 Wilkinson v. Oliveira, 1 Bing. N. C. 490; Haigh v. Brooks, 10 Ad. & El. 309; Hart v. Miles, 4 C.B. N.S. 371; 6 Am. Law Rev. 47, Oct. 1871. 292/1 Supra, pp. 196, 197. See also Lecture VII. 292/2 Byles, J., in Shadwell v. Shadwell, 30 L. J. C.P. 145, 149. 292/3 Shadwell v. Shadwell, ubi supra; Burr v. Wilcox, 13 Allen, 269, 272, 273. 292/4 Thomas v. Thomas, 2 Q.B.851. 293/1 Price v. Jenkins, 5 Ch. D. 619. Cf. Grabbe v. Moxey, 1 W. R. 226; Thomas v. Thomas, 2 Q.B.851; Monahan, Method of Law, 141 et seq. 294/1 Ellis v. Clark, 110 Mass. 389. 294/2 Fitch v. Snedaker, 38 N. Y. 248, criticising Williaws v. Carwardine, 4 Barn. & Ad. 621, where, however, it does not appear that the plaintiff did not know of the offer of a reward, but merely that the jury found that she was in fact actuated by other motives, a finding wholly beside the mark. 296/1 Y.B. 29 Ed. III. 25, 26. 296/2 19 R. II., Fitzh. Abr. Dett, pl. 166. 296/3 Hunt v. Bate, Dyer, 272, A.D. 1568. 297/1 See Barker v. Halifax, Cro. Eliz. 741; S.C. 3 Dyer, 272 a, n. 32. 297/2 Sidenham v. Worlington, 2 Leonard, 224; Bosden v. Thinne, Yelv. 40; Lampleigh v. Brathwait, Hobart, 105; Langdell, Cas. on Contr. (2d ed.), ch. 2, Section 11, Summary, Sections 90 et seq. See above, Lecture VII. p. 286. 297/3 Pollock, Contr. (lst ed.), p. 6. 298/1 Canham v. Barry, 15 C.B. 597, 619; Jones v. How, 9 C.B. 1, 9; Com. Dig. Condition, D. 2; I Roll. Abr. 420 (D), pl. 1; Y.B. 22 Ed. IV. 26, pl. 6. 301/1 Gee v. Lancashire & Yorkshire Railway Co., 6 H. & N. 211, 218, Bramwell, B. Cf. Hydraulic Engineering Co. v. McHaffie, 4 Q.B.D. 670, 674, 676. 301/2 British Columbia Saw-Mill Co. v. Nettleship, L.R. 3 C.P. 499, 509, Willes, J.; Horne v. Midland Railway Co., L.R. 7 C.P. 583, 591; S.C., L.R. 8 C.P. 131. 302/1 British Columbia Saw-Mill Co. v. Nettleship, L.R. 3 C.P. 499, 509. 304/1 Cheale v. Kenward, 3 DeG. & J. 27. 304/2 Langdell, Contr., Sections 89, 28. 305/1 Langdell, Contr., Section 57. 305/2 Ibid., Sections 14, 15. 306/1 But see Langdell, Contr., Sections 14, 15. 309/1 Raffles v. Wichelhaus, 2 H. & C. 906. Cf. Kyle v. Kavanagh, 103 Mass. 356, 357. 309/2 Cf. Cocker v. Crompton, 1 B. & C. 489. 310/1 Smith v. Hughes, L.R. 6 Q.B.597. 310/2 See Gardner v. Lane, 12 Allen, 39; S.C. 9 Allen, 492, 98 Mass. 517. 311/1 Goddard v. Monitor Ins. Co., 108 Mass. 56. 313/1 See Cundy v. Lindsay, 3 App. Cas. 459, 469. Cf. Reg. v. Middleton, L.R. 2 C.C. 38, 55 et seq., 62 et seq.; Reg. v. Davies, Dearsly, C.C. 640; Rex v. Mucklow, 1 Moody, O.C. 160; Reg. v. Jacobs, 12 Cox, 151. 313/2 "Praesentia corporis tollit errorem nominis." Cf. Byles, J., in Way v. Hearne, 32 L. J. N.S.C.P. 34, 40. But cf. the conflicting opinions in Reg. v. Middleton, L.R. 2 C.C. 38, 45, 57. It would seem that a proper name or other identification of an object or person as specific may have the same effect as an actual identification by the senses, because it refers to such an identification, although in a less direct way. 316/1 Brown v. Foster, 113 Mass. 136. 316/2 Leake, Dig. Contr. 13, 14, 637; Hunt v. Livermore, 5 Pick. 395, 397; Langd. Contr. (2d ed.), Section 36. 316/3 Leake, Dig. Contr. 638; Braunstein v. Accidental Death Ins. Co., 1 B. & S. 782. 316/4 But cf. Langd. Contr. (2d ed.), Section 29. 318/1 Langd. Contr. (2d ed.), Section 29. 318/2 Bullen & Leake, Prec. of Plead. (3d ed.), 147, "Conditions Precedent." 319/1 Cf. Cort v. Ambergate, Nottingham & Boston & Eastern Junction Railway Co., 17 Q.B.127. 320/1 Goodman v. Pocock, 15 Q.B.576 (1850). 325/1 Fisher v. Mellen, 103 Mass. 503. 325/2 Supra, p. 136. 327/1 Langd. Contr. (2d ed.), Section 33. 328/1 See the explanation of Dimech v. Corlett, 12 Moo. P.C. 199, in Behn v. Burness, 3 B. & S. 751, 760. 329/1 Behn v. Burness, 3 B. & S. 751. 329/2 Langd. Contr. (2d ed.), Section 28, p. 1000. 329/3 See Lecture VIII. 330/1 Kennedy v. Panama, &c. Mail Co., L.R. 2 Q.B.580, 588; Lyon v. Bertram, 20 How. 149, 153. Cf. Windscheid, Pand., Section 76, nn. 6, 9. 330/2 Windscheid, Pand., Section 76(4). See, generally, Ibid., nn. 6, 7; Section 78, pp. 206, 207; Section 82, pp. 216 et seq. 331/1 Cr. Ihering, Geist d. Roem. Rechts, Section 48, III. p. 116 (Fr. transl.). 331/2 See, however, the language of Crompton, J. in S.C., I B. & S. 877. Cf. Kent, Comm. (12th ed.), 479, n. 1, A (c). 331/3 Behn v. Burness, 3 B. & S. 751, 755, 756. 334/1 Cf. Anglo-Egyptian Navigation Co. v. Rennie, L.R. 10 C.P. 271. 334/2 Ellen v. Topp, 6 Exch. 424. 335/1 Contracts (2d Ed.), Section 106, and passim. 336/1 Chanter v. Hopkins, 4 M. & W. 399, 404. Possibly Behn v. Burness, stated above, might have been dealt with in this way. The ship tendered was not a ship which had been in the port of Amsterdam at the date of the contract. It was therefore not such a ship as the contract called for. 336/2 Heyworth v. Hutchinson, L.R. 2 Q.B.447, criticised in Benj. Sales (2d ed.), pp. 742 et seq. 336/3 See Thomas v. Cadwallader, Willes, 496; Langd. Contr. (2d ed.), Sections 116, 140. This is put as a case of equivalence by Mr. Langdell (Contr., Section 116); but the above explanation is believed to be the true one. It will be noticed that this is hardly a true case of condition, but merely a limitation of the scope of the tenant's promise. So a covenant to serve as apprentice in a trade, which the other party covenants to teach, can only be performed if the other will teach, and must therefore be limited to that event. Cf. Ellen v. Topp, 6 Exch. 424. 337/1 Langdell, Contracts (2d ed.), Section 127. Cf. Roberts v. Brett, 11 H. L. C. 337. 339/1 Graves v. Legg, 9 Exch. 709. Cf. Lang. Contr. (2d ed.), Section 33, p. 1004. Mr. Langdell says that a bought note, though part of a bilateral contract, is to be treated as unilateral, and that it may be presumed that the language of the contract relied on was that of a bought note, and thus a condition in favor of the defendant, who made it. I do not quite understand how this can be assumed when the declaration states a bilateral contract, and the question arose on demurrer to a plea, which also states that the plaintiff "was by the agreement bound to declare" the names. How remote the explanation is from the actual ground of decision will be seen. 341/1 Recht des Besitzes, Section 11, p. 184, n. 1 (7th ed.), Eng. tr. 124, n. t. 342/1 Inst. II. Section 157. 342/2 "In suis heredibus evidentius apparet continuationem dominii eo rem perdueere, ut nulla videatur hereditas fuisse, quasi olim hi domini essent, qui etiam vivo patre quodammodo domini existimantur, unde etiam filius familias appellatur sicut pater familias, sola nota hae adiecta, per quam distinguitur genitor ab eo qui genitus sit. itaque post mortem patris non hereditatem percipere videntur, sed magis liberam bonorum administrationem consequuntur hac ex causa licet non sint heredes instituti, domini sunt: nec obstat, quod licet eos exheredare, quod et occidere licebat." D. 28.2. 11. Cf. Plato, Laws, [Greek characters] 343/1 Laveleye, Propriety, 24, 202, 205, 211, n. 1, 232; Norton, L.C. Hindu Law of Inheritance, p. 193. 343/2 D. 50. 16. 208. 343/3 D. 41. 1. 34. Cf. D. 41. 3. 40; Bract., fol. 8 a, 44 a. 343/4 D. 43. 24. 13, Section 5. 344/1 Germania, c. 20. 345/1 Littleton, Section 337; Co. Lit. 209, a, b; Y.B. 8 Ed. IV. 5, 6, pl. 1; Keilway, 44 a (17 Hen. VII.); Lord North v. Butts, Dyer, 139 b, 140 a, top; Overton v. Sydall, Popham, 120, 121; Boyer v. Rivet, 3 Bulstr. 317, 321; Bain v. Cooper, 1 Dowl. Pr. Cas. N. s. 11, 14. 345/2 Y.B. 48 Ed. III. 2, pl. 4. 346/1 Vermoegensrechtlichen Klagen, 88, 89. 346/2 Proc. de la Lex Salica, tr. Thevenin, p. 72 and n. 1. 347/1 Ethelred, II. 9; Cnut, II. 73; Essays in Ang. Sax. Law, pp. 221 et seq. 347/2 1 Spence, Eq. 189, note, citing Hickes, Dissert. Epist., p. 57. 347/3 Glanv., Lib. VII. c. 2 (Beames, p. 150). 347/4 Ibid., c. 8 (Beames, p. 168). 347/5 Reg. Maj., Lib. II. c. 39. 348/1 Fol. 61 a. 348/2 Sachsensp., II. 60, Section 2, cited in Essays in Ang. Sax. Law, p. 221; Grand Cust. de Norm., c. 88. 348/3 Britt., fol. 64 b (Nich. ed. 163); Fleta, Lib. II. c. 62, Section 10. Cf. Bract., fol. 37 b, Section 10. 348/4 Bracton, fol. 61 a, b. "Item quaero an testator legare possit actiones suas? Et verum est quod non, de debitis quae in vita testatoris convicta non fuerunt nec recognita, sed hujusmodi actiones competunt haeredibus. Cum antera convicta sint et recognita, tune sunt quasi in bonis testatoris, et competunt executoribus in foro ecclesiastico. Si autem competant haeredibus, ut praedictum est, in foro seculari debent terminari, quia antequam communicantur et in foro debito, non pertinet ad executores, ut in foro ecclesiastico convincantur." 349/1 Bracton, fol. 62a. 349/2 Y.B. 20 & 21 Ed. I. 232; cf. ib. 312. 349/3 Oates v. Frith, Hob. 130. Cf. Y.B. 5 Hen. VII. 18, pl. 12; Popham, J., in Overton v. Sydall, Poph. 120, 121 (E. 39 El.); Boyer v. Rivet, 3 Bulstr. 317, 319-322; Brooker's Case, Godb. 376, 380 (P. 3 Car. I.). 349/4 Bain v. Cooper, 1 Dowl. Pract. Cas. N. s. 11, 14. Cf. Y.B. 14 Hen. VIII. pl. 5, at fol. 10. 350/1 Bract., fol. 66 b, 76 b, and passim; Y.B. 20 Ed. I. 226, 200; Littleton, Section 241. The same thing was said where there were several executors: "They are only in the place of one person." Y.B. 8 Ed. IV. 5,pl. 1. 350/2 Comm. 385. 350/3 Cf. Glanv., Lib. VII. c. 3; F. N. B. 21 L; Dyer, 4 b, 5 a. 351/1 Cf. Bract., fol. 80 b. 351/2 Charta Divis. Reg. Franc., Art. IX. & VIII. Cf. 3 Laferriere, Hist. du Droit Francais, 408, 409. 351/3 Glanv., Lib. IX. c. 1 (Beames, pp. 218, 220); Bract., fol. 79 b. 352/1 Brooker's Case, Godbolt, 376, 377, pl. 465. 352/2 Dyer, 1 b. Cf. Bain v. Cooper, 1 Dowl. Pr. C. N. s. 11, 12. 354/1 In the American Law Review for October, 1872, VII. 49, 50, I mentioned one or two indications of this fact. But I have since had the satisfaction of finding it worked out with such detail and learning in Ihering's Geist des Roemischen Rechts, Sections 10, 48, that I cannot do better than refer to that work, only adding that for my purposes it is not necessary to go so far as Ihering, and that he does not seem to have been led to the conclusions which it is my object to establish. See, further, Clark, Early Roman Law, 109, 110; Laferriere, Hist. du Droit Frang., I. 114 et seq.; D. 1.5. 4, Section 3; Gaii Inst. IV. Section 16; ib. II. Section 69. 356/1 Erbvertraege, I. 15 et seq. 356/2 Hist. du Droit Franc., IV. 500. 357/3 "Quantum dare voluerit aut totam furtunam eui voluerit dare . . . nec minus nec majus nisi quantum ei creditum est." Lex Sal. (Merkel), XLVI. 357/4 Lex Sal. (Merkel), Cap. XLVI., De adfathamire; Sohm, Frank. Reichs- u. Gerichtsverfassung, 69. 357/6 Beseler, Erbvertraege, I. 101, 102, 105. 358/1 "Omnem facultatem suam. . . seu cuicunque libet de proximis vel extraneis, adoptare in hereditatem vel in adfatimi vel per scripturarum seriem seu per traditionem." L. Rib. Cap. L. (al. XLVIII.); cf. L. Thuring. XIII. So Capp. Rib. Section 7: "Qui filios non habuerit et aliurn quemlibet heredem facere sibi voluerit coram rege . . . traditionem faclat." 357/2 Ed. Roth., cap. 174, 157; cf. lb. 369, 388; Liutpr. III. 16 (al. 2), VI. 155 (al. 102). Cf. Beseler, Erbvertraege, I. 108 et seq., esp. 116-118. Compare the charter of A.D. 713, "Offero . . . S. P. ecclesia quam mihi heredem constitui." (Mem. di Lucca V. b. No. 4.) Troya III. No. 394, cited Heusler, Gewere, 45, 46. Cf. ib. 484. This, no doubt, was due to Roman influence, but it recalls what Sir Henry Maine quotes from Elphinstone's History of India (I. 126), as to sale by a member of one of the village communities: "The purchaser steps exactly into his place, and takes up all his obligations." Ancient Law, ch. 8, pp. 263, 264. 357/3 (Merkel) Cap. LVIII., De chrenecruda. Sohm, Frank. R. u. G. Verf., 117. 358/1 A.D. 679: "Sicuti tibi donata est ira tene et posteri tui." Kemble, Cod. Dip., I. 21, No. xvi. Uhtred, A.D. 767: "Quam is semper possideat et post se cui voluerit heredum relinquat." Ib. I. 144, cxvxi. ("Cuilibet heredi voluerit relinquat" is very common in the later charters; ib. V. 155, MLXXXIL; lb. VI. 1, MCCXVIIL; it). 31, MCCXXX.; lb. 38, MCCXXXIV.; and passim. This may be broader than cui voluerit herealum.) Offa, A.D. 779: "Ut se viverite habe . . . deat. et post se suoe propinquitatis homini cui ipse vo . . . possidendum libera utens potestate relinquat." Ib. I. 164, 165, CXXXVII. Aethilbald, A.D. 736: "Ita ut quamdiu vixerit potestatem habeat tenendi ac possidendi cuicumque voluerit vel eo vivo vel certe post obitum suum relinquendi." Ib. I. 96, LXXX.; cf. ib. V. 53, MXIV. Cuthred of Kent, A.D. 805: "Cuicumque hominum voluerit in aeternam libertatem derelinquat." Ib. I. 232, CXC. "Ut habeat libertatem commutandi vel donandi in vita sua et post ejus obiturn teneat facultatem relinquendi cuicumque volueris." Ib. I. 233, 234, CXCI.; cf. ib. V. 70, MXXXI. Wiglaf of Mercia, Aug. 28, A.D. 831: "Seu vendendum ant commutandum i cuicumque ei herede placuerit dereliaquendum." Ib. I. 294, CCXXVII. 359/1 "W. et heredibus suis, videlicet quos heredes constituerit." Memorials of Hexham, Surtees Soc. Pub., 1864, II. 88. 359/2 Cf. Y.B. 27 Ass., fol. 135, pl. 25. Under the Welsh laws the champion in a cause decided by combat acquired the rights of the next of kin, the next of kin being the proper champion. Lea, Superstition and Force (3d Ed.), 165. Cf. ib. 161, n. 1; ib. 17. 361/1 D. 38. 8. 1, pr. 361/2 "Cum is, qui ex edicto bonorum possessionem petiit, ficto se herede agit." Gaii Inst. IV. Section 34. Cf. Ulp. Fragm. XXVIII. Section 12; D. 37. 1. 2. So the fidei commissarius, who was a praetorian successor (D. 41. 4. 2, Section 19; 10. 2. 24), "in similitudinem heredis consistit." Nov. 1. 1, Section 1. Cf. Just. Inst. 2. 24, pr., and then Gaius, II. Sections 251, 252. 361/3 Gaii Inst. II. Sections 102 et seq. Cf. ib. Sections 252, 35. 361/4 Gaii Inst. IV Section 35: "Similiter et bonorum emptor ficto se herede agit." Cf. ib. Sections 144, 145. Keller, Roemische Civilprocess, Section 85, III. But cf. Scheurl, Lehrb. der Inst., Section 218, p. 407 (6th ed.). 361/5 Paulus in D. 50. 17. 128. 362/1 "In re legata in accessione temporis quo testator possedit, legatarius quodammodo quasi heres est." D. 41. 3. 14, Section 1. 362/2 D. 41.1.62; 43. 3. 1, Section 6; Gaii Inst. II. Section 97; Just. Inst. 2. 10, Section 11. 363/1 "[Accessiones possessionum] plane tribuuntur his qui in locum aliorum succedunt sive ex contractu sive voluntate: heredibus enum et his, qui successorum loco habentur, datur accessio testatoris. Itaque si mihi vendideris servum utar accesssione tua." D. 44.3.14, Sections 1, 2. 363/2 "Ab eo . . . in cujus locum hereditate vel emptione aliove quo iure successi." D. 43. 19. 3, Section 2. 363/3 D. 50. 4. 1, Section 4. Cf. Cic. de Off. 3. 19. 76; Gaii Inst. IV. Section 34. 363/4 C. 2. 3. 21; C. 6. 16. 2; cf. D. 38. 8. 1, pr. 364/1 "In locum successisse accipimus sive per universitatem sive in rem sit successum." D. 43. 3. 1, Section 13. Cf. D. 21.3.3, Section 1; D. 12.2.7&8;D. 39. 2. 24, Section 1. 364/2 D. 41.2. 13, Sections 1, 11. Other cases put by Ulpian may stand on a different fiction. After the termination of a precarium, for instance, fingitur fundus nunquam fuisse possessus ab ipso detentore. Gothofred, note 14 (Elz. ed.). But cf. Puchta, in Weiske, R. L., art. Besitz, p. 50, and D. 41.2.13, Section7. 364/3 Inst. 2. 6, Sections 12, 13. Cf. D. 44. 3. 9. See, for a fuller statement, 11 Am. Law Rev. 644, 645. 365/1 Recht des Besitzes, Section11 (7th ed.), p. 184, n. 1, Eng. tr. 124, n. t. 365/2 Paulus, D. 8. 6. 18, Section 1. This seems to be written of a rural servitude (aqua) which was lost by mere disuse, without adverse user by the servient owner. 365/3 Hermogenianus, D. 21. 3. 3; Exe. rei jud., D. 44. 2. 9, Section 2; ib. 28; ib. 11, Sections 3, 9; D. 10. 2. 25, Section 8; D. 46. 8. 16, Section I; Keller, Roem. Civilproc., Section 73. Cf. Bracton, fol. 24 b, Section 1 ad fin. 365/4 "Recte a me via uti prohibetur et interdictum ei inutile est, quia a me videtur vi vel clam vel precario possidere, qui ab auctore meo vitiose possidet. nam et Pedius scribit, si vi aut clam aut precario ab co sit usus, in cuius locum hereditate vel emptione aliove quo lure suceessi, idem esse dicendum: cum enim successerit quis in locum eorum, aequum non est nos noceri hoc, quod adversus eum non nocuit, in cuius locum successimus." D. 43. 19. 3, Section 2. The variation actore, argued for by Savigny, is condemned by Mommsen, in his edition of the Digest, --it seems rightly. 365/5 D. 12. 2. 7 & 8. 366/1 Ulpian, D. 39. 2. 24, Section1. Cf. D. 8. 5.7; D. 39. 2. 17, Section 3, n. 79 (Elzevir ed.); Paulus, D. 2. 14. 17, Section 5. 366/2 "Cum quis in alii locum successerit non est aequum ei nocere hoc, quod adversus eum non nocuit, in cujus locum successit. Plerumque emptoris eadem causa esse debet circa petendum ac defendendum, quae fuit auctoris." Ulp. D. 50. 17. 156, Sections 2, 3. "Qui in ius dominiumve alterius succedit, iure ejus uti debet." Paulus, D. 50. 17. 177. "Non debeo melioris condieionis esse, quam auctor meus, a quo ius in me transit." Paulus, D. 50. 17. 175, Section 1. "Quod ipsis qui contraxerunt obstat, et successoribus eoturn obstabit." Ulp. D. 50. 17. 143. "Nemo plus iuris ad alium transferre potest, quam ipse haberet." Ulp. D. 50. 17. 54; Bract., fol. 31 b. Cf. Decret. Greg. Lib. II. Tit. XIII. c. 18, De rest. spoliat.: "Cum spoliatori quasi succedat in vitium." Bruns, R. d. Besitzes, p. 179. Windscheid, Pand., Section 162 a, n. 10. 366/3 "Ne vitiosae quidam possessioni ulla potest accedere: sed nec vitiosa ei, quse vitiosa non est." D. 41. 2. 13, Section 13. 367/1 Hill v. Ellard, 3 Salk. 279. Cf. Withers v. Iseham, Dyer, 70 a, 70 b, 71 a; Gateward's Case, 6 Co. Rep. 59b, 60b; Y.B. 20 & 21 Ed. I 426; 205; 12 Hen. IV. 7. 368/1 Doe v. Barnard, 13 Q.B.945, 952, 953, per Cur., Patteson, J. Cf. Asher v. Whitlock, L.R. 1 Q.B.1, 3, 6, 7. 368/2 See, further, Sawyer v. Kendall, 10 Cush. 241; 2 Bl. Comm. 263 et seq.; 3 Ch. Pl. 1119 (6th Am. ed.); 3 Kent, 444, 445; Angell, Limitations, ch. 31, Section 413. Of course if a right had already been acquired before the disseisin different considerations would apply. If the right claimed is one of those which are regarded as incident to land, as explained in the following Lecture, the disseisor will have it. Jenk. Cent. 12, First Cent. Case 21. 370/1 Ared v. Watkin, Cro. Eliz. 637; S.C., ib. 651. Cf. Y.B. 5 Hen. VII. 18, pl. 12; Dyer, 4 b, n. (4). 370/2 Roe v. Hayley, 12 East, 464, 470 (1810). 371/1 Boyer v. Rivet, 3 Bulstr. 317, 321. 372/1 Essays in A. S. Law, 219. 372/2 "Per medium," Bracton, fol. 37b, Section10 ad fin. 374/1 Bract., fol. 17 b. Cf. Fleta, III. c. 14, Section 6. 374/2 See, further, Middlemore v. Goodale, Cro. Car. 503, stated infra, p. 379. 374/3 See also Bract., fol. 380 b, 381. "Et quod de haeredibus dicitur, idem dici poterit de assignatis .... Et quod assignatis fieri debet warrantia per modum donationis: probatur in itinere W. de Ralegh in Com. Warr. circa finem rotuli, et hoc maxime, si primus dominus capitalis, et primus feoffator, ceperit homagium et servitium assignati." Cf. Fleta, VI. Section 6; Moore, 93, pl. 230; Sheph. Touchst. 199, 200. As to the reason which led to the mention of assigns, cf. Bract., fol. 20 b, Section 1; 1 Britt. (Nich.), 223, 312. 375/1 I do not stop to inquire whether this was due to the statute of Quia Emptores, by which the assign was made to hold directly of the first grantor, or whether some other explanation must be found. Cf. Bract., fol. 37 b; c. 14, Sections 6, 11; VI. c. 28, Section 4; 1 Britton (Nich.), 256, [100 b]. 375/2 Fleta, III. c. 14, Section 6, fol. 197; 1 Britton (Nich.), 223, 233, 244, 255, 312; Co. Lit. 384 b; Y.B. 20 Ed. I. 232; Abbr. Placit., fol. 308, 2d col., Dunelm, rot. 43; Y.B. 14 Hen. IV. 5, 6. 377/1 Fol. 67 a; cf. 54 a. 377/2 Fol. 381; supra, p. 874, n. 3. 378/1 Cf. Pincombe v. Rudge, Hobart, 3; Bro. Warrantia Carte, pl. 8; S.C., Y.B. 2 Hen. IV. 14, pl. 5. 378/2 Y.B. 50 Ed. III. 12b & 13. 378/3 Y.B. 42 Ed. III. 3, pl. 14, per Belknap, arguendo. 378/4 Noke v. Awder, Cro. Eliz. 373; S.C., ib. 436. Cf. Lewis v. Campbell, 8 Taunt. 715; S.C., 3 J. B. Moore, 35. 379/1 Middlemore v. Goodale, Cro. Car. 503; S.C., ib. 505, Sir William Jones, 406. 379/2 Harper v. Bird, T. Jones, 102 (Pasch. 30 Car. II.). These cases show an order of development parallel to the history of the assignment of other contracts not negotiable. 380/1 Andrew v. Pearce, 4 Bos. & Pul. 158 (1805). 383/1 Austin, Jurisprudence, II. p. 842 (3d ed.). 383/2 "Quoniam non personae, sed praedia deberent, neque adquiri libertas neque remitti servitus per partem poterit." D. 8. 3. 34, pr. 383/3 "Qui fundum alienum bona fide emit, itinere quod ei fundo debetur usus est: retinetur id ius itineris: atque etiam, si precario aut vi deiecto domino possidet: fundus enim qualiter se habens ita, cum in suo habitu possessus est, ius non deperit, neque refert, iuste nec ne possideat qui talem eum possidet." D. 8. 6. 12. 383/4 Elzevir ed., n. 51, ad loc. cit.; Cicero de L. Agr. 3. 2. 9. 383/5 D. 50. 16, 86. Cf. Ulpian, D. 41. 1. 20, Section 1; D. 8. 3. 23, Section 2. 383/6 Inst. 2. 3, Section 1. 384/1 D. 8. 1. 14, pr. Cf. Elzevir ed., n. 58, "Et sic jura . . . accessiones ease possunt corporum." 384/2 "Cum fundus fundo servit." D. 8. 4. 12. Cf. D. 8. 5. 20, Section 1; D. 41. 1. 2O, Section 1. 384/3 Jurisprudence, II. p. 847 (3d ed.). 384/4 Cf. Windscheid, Pand., Section 57, n. 10 (4th ed.), p. 150. 385/1 Fol. 10b, Section 3. 385/2 Fol. 220b, Section 1. 386/1 Fol. 221. 386/2 Fol. 219a, b. 386/3 Fol. 102a, b. 386/4 Fol. 226 b, Section 13. All these passages assume that a right has been acquired and inheres in the land. 387/1 Fol. 53 a; cf. 59 b, ad fin., 242 b. 387/2 "Nihil praescribitur nisi quod possidetur," cited from Hale de Jur. Maris, p. 32, in Blundell v. Catterall, 5 B. & Ald. 268, 277. 388/1 Bract., fol. 46b; cf. 17b, 18, 47 b, 48. 388/2 Fol. 81, 81 b, 79 b, 80 b. 388/3 Fol. 24 b, 26, 35 b, 86, 208 b, &c. Cf. F. N. B. 123, E; Laveleye, Propriete, 67, 68, 116. 388/4 Abbr. Plac. 110; rot. 22, Devon. (Hen. III.}. 388/5 Stockwell v. Hunter, 11 Met. (Mass.) 448. 389/1 Keilway, 130 b, pl. 104. 389/2 Keilway, 113 a, pl. 45; Dyer, 2b. 389/3 Keilway, 113a, pl. 45. Cf. Y.B. 33-35 Ed. I. 70; 45 Ed. III. 11, 12. 389/4 Litt. Section 589. 389/5 Keilway, 2 a, pl. 2 ad fin. (12 Hen. VII.). But cf. Y.B. 6 Hen. VII. 14, pl. 2 ad fin. 389/6 4 Laferriere, Hist. du Droit. Franc. 442; Bracton, fol. 53a. 390/1 Cf. Co. Lit. 322 b, et seq.; Y.B. 6 Hen. VII. 14, pl. 2 ad fin. 390/2 Daintry v. Brocklehurst, 3 Exch. 207. 390/3 Y.B. 5 Hen. VII. 18, pl. 12. 391/1 Y.B. 9 Hen. VI. 16, pl. 7. 391/2 Y.B. 14 Hen. VI. 26, pl. 77. 391/3 Y.B. 5 Hen. VII. 18, pl. 12. 391/4 Cf. Theloall, Dig. I. c. 21, pl. 9. 391/5 Buskin v. Edmunds, Cro. Eliz. 636. 391/6 Harper v. Bird, T. Jones, 102 (30 Car. II.). 391/7 Bolles v. Nyseham, Dyer, 254 b; Porter v. Swetnam, Style, 406; S.C., ib. 431. 391/8 3 Bl. Comm. 231, 232. 392/1 Yielding v. Fay, Cro. Eliz. 569. 392/2 Pakenham's Case, Y.B. 42 Ed. III. 3, pl. 14; Prior of Woburn's Case, 22 Hen. VI. 46, pl. 36; Williams's Case, 5 Co. Rep. 72 b, 73 a; Slipper v. Mason, Nelson's Lutwyche, 43, 45 (top). 392/3 F. N. B. 127; Nowel v. Smith, Cro. Eliz. 709; Star v. Rookesby, 1 Salk. 335, 336; Lawrence v. Jenkins, L.R. 8 Q.B.274. 392/4 Dyer, 24 a, pl. 149; F. N. B. 180 N. 393/1 F. N. B. 128 D, E; Co. Lit. 96 b. It is assumed that, when an obligation is spoken of as falling upon the land, it is understood to be only a figure of speech. Of course rights and obligations are confined to human beings. 393/2 Keilway, 145 b, 146, pl. 15; Sir Henry Nevil's Case, Plowd. 377, 381; Chudleigh's Case, 1 Co. Rep. 119 b, 122 b. 393/3 F. N. B. 180 N.; Co. Lit. 385 a; Spencer's Case, 5 Co. Rep. 16 a, 17 b; Pakenham's Case, Y.B. 42 Ed. III. 3, pl. 14; Keilway, 145 b, 146, pl. 15; Comyns's Digest, Covenant (B, 3). 394/1 Holms v. Seller, 3 Lev. 305; Rowbotham v. Wilson, 8 H. L. C. 348; Bronson v. Coffin, 108 Mass. 175, 180. Cf. Bro. Covenant, pl. 2. 394/2 Y.B. 21 Ed. III. 2, pl. 5; F. N. B. 180 N. 394/3 The action is case in the Prior of Woburn's Case, Y.B. 22 Hen. VI. 46, pl. 36. In F. N. B. 128 E, n. (a), it is said that a curia claudenda only lay upon a prescriptive right, and that if the duty to fence was by indenture the plaintiff was put to his writ of covenant. But see below, pp. 396, 400. 394/4 Y.B. 32 & 33 Ed. I. 430. 395/1 Y.B. 20 Ed. I. 360. 395/2 Y.B. 32 & 33 Ed. I. 516. 395/3 "Quia res cum homine [obviously a misprint for onere] transit ad quemcunque." Fol. 382, 382 b. 395/4 Lib. VI. c. 23, Section 17. 395/5 Pakenham's Case, Y.B. 42 Ed. III. 3, pl. 14. 395/6 Sugd. V. & P. (14th ed.), 587; Rawle, Covenants for Title (4th ed.), p. 314. Cf. Vyvyan v. Arthur, 1 B. & C. 410; Sharp v. Waterhouse, 7 El. & Bl. 816, 823. 396/1 Co. Lit. 385 a. 396/2 Cf. Finchden as to rent in Y. B, 45 Ed. III. 11, 12. 396/3 Cf. Y.B. 50 Ed. III. 12, 13, pl. 2. 397/1 Covenant, pl. 17. 397/2 There is a colon here in both editions of the Year Books, marking the beginning of a new argument. 397/3 Pakenham's Case, Y.B. 42 Ed. III. 3, pl. 14. 398/1 Bro. Covenant, pl. 5. Cf. Spencer's Case, 5 Co. Rep. 16 a, 17 b, 18 a. 398/2 Horne's Case, Y.B. 2 Hen. IV. 6, pl. 25. 399/1 "Quod conceditur." Cf. Spencer's Case, 5 Co. Rep. 16 a, 18 a. 399/2 It was quite possible that two liabilities should exist side by side. Bro. Covenant, pl. 32; Brett v. Cumberland, Cro. Jac. 521, 523. 399/3 1 Co. Rep. 122 b; S.C., sub nom. Dillon v. Fraine, Popham, 70, 71. 400/1 Essays in Ang. Sax. Law, 248. 400/2 Y.B. 22 Ed. I. 494, 496. 400/3 Y.B. 4 Ed. III. 57, pl. 71; S.C., 7 Ed. III. 65, pl. 67. 401/1 Bract., fol. 17 b, 37 b; Fleta, III. c. 14, Section 6; 1 Britton (Nich.), 223, 233, 244, 255, 312; Abbrev. Plac. p. 308, col 2, Dunelm, rot. 43 (33 I.); Y. B, 20 Ed. I. 232; Co. Lit. 384 b. 401/2 Hyde v. Dean of Windsor, Cro. Eliz. 552. 401/3 Spencer's Case, 5 Co. Rep. 16 a. Cf. Minshill v. Oakes, 2 H. & N. 793, 807. 402/1 Hyde v. Dean of Windsor, Cro. Eliz. 552, 553; S.C., ib. 457. Cf. Bally v. Wells, 3 Wilson, 25, 29. 402/2 Dean of Windsor's Case, 5 Co. Rep. 24 a; S.C., Moore, 399. Cf. Bro. Covenant, pl. 32. Cf. further, Conan v. Kemise, W. Jones, 245 (7 Car. I.). 403/1 F. N. B. 181 N; Sir Henry Nevil's Case, Plowden, 377, 381. 403/2 Ewre v. Strickland, Cro. Jac. 240. Cf. Brett v. Cumberland, 1 Roll R. 359, 360 "al comen ley"; S.C., Cro. Jac. 399, 521. 403/3 Cockson v. Cock, Cro. Jac. 125. 403/4 Sale v. Kitchingham, 10 Hod. 158 (E. 12 Anne). 403/5 Supra, pp. 396, 398, 400. Cf., however, Lord Wensleydale, in Rowbotham v. Wilson, 8 H. L. C. 348, 362, and see above, p. 391, as to rents. 404/1 4 Kent (12th ed.), 480, n. 1. 404/2 It is used in a somewhat different sense is describing the relation between a tenant for life or years and a reversioner. Privity between them follows as an accidental consequence of their being as one tenant, and sustaining a single persona between them. 406/1 Rowbotham v. Wilson, 8 H. L. C. 348, 362 (Lord Wensleydale). 406/2 Harbidge v. Warwick, 3 Exch. 552, 556. 406/3 Rowbotham v. Wilson, 8 El. & Bl. 123, 143, 144. 404/4 5 Co. Rep. 16, a. 407/1 Y.B. 8 Ed. IV. 5, 6, pl. 1; 22 Ed. IV. 6, pl. 18. Cf. 5 Ed. IV. 7, pl. 16. 407/2 Cf. Keilway, 42 b, 46 b; 2 Bl. Comm. 329. 408/1 Y.B. 14 Hen. VIII. 6, pl. 5. Cf. Chudleigh's Case, 1 Co. Rep. 120a, 122 b; S.C., nom. Dillon v. Fraine, Popham, 70-72. 408/2 Lewin, Trusts, Ch. I. (7th ed.), pp. 16, 15. 408/3 4 Inst. 85; Gilb. Uses (Sugd.), 429, n. (6); Lewin, Trusts (7th ed.), pp. 15, 228. 408/4 Burgess v. Wheate, 1 Eden, 177, 203, 246. 408/5 Lewin, Trusts, Introd. (7th ed.), p. 3. 408/6 1 Rich. III. c. 1. Cf. Rex v. Holland, Aleyn, 14, Maynard's arg.; Bro. Feoffements al Uses, pl. 44; Gilb. Uses, 26* (Sugd. ed., 50). 409/1 4th Inst. 85; S.C., Dyer, 869, pl. 50; Jenk. Cent. 6, c. 30. Cf. Gilb. Uses, 198* (Sugd. ed. 399). 409/2 Gilb. Uses, 35* (Sugd. ed. 70). 409/3 Theloall's Dig., I. 16, pl. 1. 
38589	----	generously made available by The Internet Archive.) The Lawyer in History, Literature, and Humour. Edited by WILLIAM ANDREWS, F.R.H.S. "A welcome addition to the lighter literature of the law."--_The Times._ "A considerable amount of historical and literary information."--_Daily News._ "An entertaining work. It is rich in the lore and the humour of the law, and ought to be as interesting to the layman as to the lawyer."--_The Globe._ "A handsome volume.... The work is printed and got up in a style that does credit to the well-known firm of publishers."--_Chester Courant._ [Illustration: TRIAL OF A PIG AT LAUSANNE IN THE FOURTEENTH CENTURY.] Legal Lore: Curiosities of Law and Lawyers EDITED BY William Andrews. LONDON: WILLIAM ANDREWS & CO., 5, FARRINGDON AVENUE, E.C. 1897. Preface. The favourable reception given to my volume issued under the title of "The Lawyer in History, Literature, and Humour," has induced me to prepare, on similar lines, the present book, dealing with curiosities of the law. I hope those who are interested in the study of the byways of literature may find entertainment and instruction in its pages, and that it will win a welcome not only from the legal profession, but from the reading public. I am enabled by the courtesy of Messrs. Chatto & Windus, to reproduce for my frontispiece, an illustration from a work published by them, under the title of "Credulities Past and Present." WILLIAM ANDREWS. THE HULL PRESS, 10th December, 1896. Contents. PAGE BIBLE LAW. By S. Burgess, M.A. 1 SANCTUARIES. By William E. A. Axon, F.R.S.L. 13 TRIALS IN SUPERSTITIOUS AGES. By Ernest H. Rann 23 ON SYMBOLS. By George Neilson 43 LAW UNDER THE FEUDAL SYSTEM. By Cuming Walters 58 THE MANOR AND MANOR LAW. By England Howlett 83 ANCIENT TENURES. By England Howlett 95 LAWS OF THE FOREST. By Edward Peacock, F.S.A. 109 TRIAL BY JURY IN OLD TIMES. By Thomas Frost 122 BARBAROUS PUNISHMENTS. By Sidney W. Clarke 132 TRIALS OF ANIMALS. By Thomas Frost 149 DEVICES OF THE SIXTEENTH CENTURY DEBTORS. By James C. Macdonald, F.S.A., Scot. 161 LAWS RELATING TO THE GIPSIES. By William E. A. Axon, F.R.S.L. 165 COMMONWEALTH LAW AND LAWYERS. By Edward Peacock F.S.A. 179 COCK-FIGHTING IN SCOTLAND. 197 COCKIELEERIE LAW. By Robert Bird 200 FATAL LINKS. By Ernest H. Rann 205 POST-MORTEM TRIALS. By George Neilson 224 ISLAND LAWS. By Cuming Walters 237 THE LITTLE INNS OF COURT. 258 OBITER. By George Neilson 267 INDEX 277 LEGAL LORE. Bible Law. BY S. BURGESS, M.A. At the very outset of any treatment of so delicate a subject as that indicated by the title of this chapter, we are met by no small difficulty. This consists in the danger of committing unintentional errors of irreverence, and thus offending the prejudices of those who are more or less pledged to their belief in the verbal inspiration of every Bible chapter and verse. With this risk before us, we can only trust to our own sense of a rational view of a subject so full of capabilities of misconstruction. Those of us who can remember the outburst of righteous indignation at the publication of the "Essays and Reviews" and of "Ecce Homo," feel surprise at the quiet indifference with which views expressed in them are now received. This does not at all, or necessarily, mean that men's faith is colder, or that the spirit of reverent religious feelings has died away. The advance of accurate scientific investigation may have upset the faith of some, and given a subject for outbursts of intolerant pulpit denunciations, but we must think that there are signs plainly discernible of a quiet acceptation of modern discovery by the majority of thoughtful and devout believers in the inspiration of Holy Scripture. These remarks will be found not unneedful as we pursue the examination of this particular branch of Biblical study, namely, the Law as it is found in the Bible, and this will be seen at once when it is laid down as an absolutely necessary condition of our investigation that this same Law can plainly be divided into two distinct portions--that which is of Divine, and that which is of human origin. The bare statement of this fact will offend certain prejudices. The Divine "Fiat" stamps with as marvellous and undoubted clearness, certain portions, as other parts are marked by the progress of human intelligence, the needs of human society, and the force of the human will. The very fact of the existence of Law entails the necessity of Penalty, and this may be spiritual or corporal. The former depends on the acknowledgment of the rule over us of a Superior Being. The latter is a necessary accompaniment of all and every human life, believing or unbelieving. So in the Bible Law we can easily distinguish between the penalty affixed to the breaking of the first of the Ten Commandments, and that which followed on the breaking of the sixth. On the authority of Hebrew scholars, we are told that the use of the Hebrew Article shows that _The Law_ refers to the expressed will of God. If this rule be invariable, it would be of great value, and especially so in the use of the Greek Article. The writers of the Psalms gave forth an intense reflection of the old Law; always presuming, as they of course did, that it emanated from the Deity. Now let us be allowed to start with the assumption that the Mosaic is the earliest form of tabulated Law. A most excellent book has just been published, "The History of Babylonia," by the Society for Promoting Christian Knowledge. It is a cheap little book, but full of information upon which one feels able to rely. We find there that the Moral Law of Babylonia represents the spirit of Bible Law so accurately that it would be absurd to set up any theory of an independent basis. We must make a date somewhere, and therefore we cannot do better than choose a date that can be fairly tested, and safely on this side of mythical eras,--and that is about 1500 B.C. This must appear a very safe and modest date to fall back upon. The Babylonians want us to go back 432,000 years, but to accept this assertion requires more faith than most of us possess. For our present purpose there is nothing gained by comparing the Mosaic Law with that discovered with such infinite care and learning in the Babylonian records. The utmost that can be said is that we have startling coincidences, and an intensely interesting subject opened out. But there is no single grain of information, and that is what we are just now in search of. We feel quite distrustful of documents, especially _stone_ ones, which give the lifetime of Alorus as extending to 36,000 years. That was before the Deluge. The Wandering Jew sinks into insignificance, and is a mere puling infant by the side of such figures as these, because the son of Alorus reigned for 46,800 years. However short the "year" was, the period of life was quite lengthy. If a year was our week, the last named patriarch was about 1,000 years old. This is a departure somewhat from the Law as it is in our Bibles. But it will be an interesting study for some kind student to compare that Law with the echoes thereof found in Asiatic literature, even far away on the eastern shores of China. The mystery still unsolved is, "_How did it get there?_" With the greatest diffidence we make the statement that the first notion of Law was in connection with sacrifice. The time may come when this can be refuted. But at present, leaving out of the question natural and unwritten Law, we find no bond but this. Sacrifice comes to us as a Law from a Superior Being. Heathen nations have recognized the efficacy of sacrifice and offerings. Man without Law was an impossibility. No living thing can exist without some Law. Thus we look back to the first records of created living things for some Law. Science sheds a great, broad, and even scaring, light on the Law prevailing over inanimate nature. The seas and the fields obey it. But for us to make a record of Law as it made its beginning, is a task too great, and it is indeed then we feel that "fools may rush in" where better souls have had to languish in doubt. Let us take the Law in the Bible as we can read it, and how few care to read it! There was a man once who had read the whole of the first five books through _twice_. Thinking there might be something to gain from such abnormal study, we propounded a few questions on this very subject. The result was a senseless repetition of verses from Leviticus. And yet, to tell the honest truth, there is very little left us to do but to _quote_. There is a little assistance we can give, and most thankful we are to have it in our power to do so. Let us all the time remember that the Bible Law is the sole foundation of every Law, Human and Divine, as far as we can discover. If it can be proved that the Babylonian record with its 40,000 year old kings is to be relied on, then by all means let us accept it. We start with the sacrifice as the "_companion_" of the Law. No one can feel hurt by this. It is no good to any of us to ask whether Abel's sacrifice was according to revealed Law or anterior to it. It is plain that sacrifice came to be the great medium of the Law between man and the great prevailing Law. With this allowed, all the rest is easier to grasp. The early Law among the first people seemed to have no force but in its connection with some higher Power. This Power has been now deputed to earthly sources. The writers of the Psalms represent to us a perfect intercourse with the Deity. The question then arises, "On what grounds was this intercourse conducted?" The answer seems clearly to be on the conditions of the Laws of sacrifice. Now, by comparing the elaborate list of these contained in Smith's "Dictionary of the Bible" with a very careful one in "Notes on the Hebrew Psalms," by W. R. Burgess (1879), we can make out a clear and very useful _resumé_. Leaving out the great sin offerings for the _whole people_ and for the priests, we have the following sin offerings:-- 1. For any sin of ignorance. Lev. iv. A most elaborate ceremonial of sacrifice and blood sprinkling. We should like to know when the "plea of ignorance" was done away with altogether, as we believe it has no force at all in modern Law. 2. For refusal to bear witness on oath. Lev. v. This is of very great interest in the light of recent legislation as to affirmation. We have come across many people, it is needless to add grossly ignorant, who have entirely lost sight of the obvious emphasis on the word "False" in the 9th Commandment, placing the whole force on the fact of "Witness." 3. The Laws as to defilement. These, we presume, have left no trace on modern Law. 4. The breach of a rash oath, the keeping of which would involve sin. Lev. v., 4. This opens a most interesting subject, but we have not space to enter upon it. From the days of Jephthah and his oath with regard to his daughter until this day, the question has been full of difficulties, and is divided amongst, perhaps, equal advocates for the two opposed views of it. 5. Sacrilege in ignorance, fraud, _suppressio veri_, and perjury, were punished by enforced compensation, and the addition of a fifth part of the value concerned in the matter to the priest, or to the person wronged. 6. Illtreatment of betrothed slaves. Lev. xix., 20. This is only curious, but at the same time has a connection with late enactments in criminal Law. 7. The Law as to the powers of a father is extraordinary. When one considers the relation now existing and defined by our Law, the revolution is beyond all measure out of reasonable proportion. For a curse, a blow, or even wilful disobedience, the penalty was _death_! 8. The Law of usury is difficult, but the chief points are well known. The main principle of the Law prevails to this day. Let us only notice the striking fact that usury could not be exacted upon the Jews themselves. Does this not offer a fine comment on the grievous usury so cruelly enforced in after years by these people upon the _Gentile_ races? 9. Debt. All debts were released at the seventh year. So there was a year of limitation. 10. Tithe. This Law has been so frequently and ably set forth, that it is entirely one's own fault if it needs any comment. 11. Poor Laws. These are conspicuous by their absence. There was a legal right of gleanings, a second tithe to be given in charity, and wages were to be paid day by day. (Deut. xxiv.) A few rather important forms of legislation must be placed here as addenda. We notice the entirely despotic power of the husband over the wife, and all belonging to her. Compare _our_ useful but very late enactment as to married women's property, apart from her almost complete irresponsibility. The slander against a wife's virginity is punished by a fine only, but the fact of its truth, and therefore no longer a slander, is punished by the death of the woman. This is a most striking proof of the lower room in social judgment awarded to the female Israelite. We notice also that the power of the master over his servant was absolute, but that the master suffered a penalty if his servant or slave died under castigation! Ex. xxi. If he was maimed, he was by this fact allowed his freedom. The rule as to _Hebrew_ slaves is very interesting. It is too long to be quoted here, but it can be easily mastered by a reference to Ex. xxi., Deut. xv., Lev. xxv. We notice that there is no protection _legally_ allowed to _strangers_, and so we find kindness and protection enjoined as a sacred duty. We believe that the old list of "Prohibited Degrees," which we saw placed in churches in our infancy, and is still to be seen, is in all respects enforced by our present Law. But we are not quite sure of this. We can only remember the vague sense of mystery underlying the clause, which was always put in the largest type:-- "A MAN MAY NOT MARRY HIS GRANDMOTHER." Another most interesting Law must be carefully noticed, and if possible, more deeply studied. In cases of accidental homicide, there was mostly an "avenger of blood" to be looked for. To escape this untoward follower, cities of refuge or sanctuaries were named, and in these the poor wretch was safe until the death of the high priest. As to the legal penalty of adultery, are we quite sure that, according to results, we have greatly improved upon the old Bible Law? Under this the punishment was _death_ of _both offenders_. Was it the fear lest the population of the world should be so very seriously lessened that gradually brought this Law to less than a penal one, so that at this day a Royal "Commission" is placed on the offence in the shape of the absolute freedom of the offenders to seek for _another opportunity_? Just a few words more as to those who interpreted the Law. These were the Priests and the Levites. The "Judges," as we read of them in the book of that name, had, with the exception of Samuel, mostly to do with the settlement of political disputes, and the leading out of the people to victory or defeat, as the case might be. But in later times the power of the Sanhedrim was undoubtedly great. The king's power was legally limited. But so it is, and has been, in all ages and in all dominions _in theory_! Yet we find Rehoboam expelled by Jereboam, and the latter as despotic as the former, just as we find a firm will in Cromwell after the despotism of Charles, in what had been then for centuries the most "Constitutionally" governed country in the world! Sanctuaries. BY WILLIAM E. A. AXON, F.R.S.L. In all ages men have attributed a special sanctity to certain localities, usually those devoted to the purposes of worship, and this sentiment has in many lands been utilised in the interests of mercy by exempting those within the precincts from arrest for some, or even all, crimes and offences. In the earlier stages of development, the punishment of crime was not regarded as a duty of the community, but as an obligation, or privilege of the injured or of those nearest to him in blood or social relationship. Thus the son of a murdered man had the right to murder the murderer. The general principle of the earlier forms of justice is the _lex talionis_, but the infliction of the penalty was mostly in the discretion of the avenger. He might be afraid to attempt to slay a strong or powerful homicide, and be willing to pardon the offence for a money consideration. A criminal who took refuge in a sacred place secured at least a breathing time in which his friends might effect a compromise with his adversary. Greece had its famous _asyla_, but the custom of our own country was probably influenced from Hebrew rather than classical sources. In the narrative of the death of Joab, the hesitation of Benaiah shows that it was unusual to slay one who had taken hold of the horns of the altar. The six Cities of Refuge were appointed as places of safety for involuntary homicides, where they were protected from the avenger of blood. Amongst our Anglo-Saxon ancestors, the Church exerted a moderating influence. Every consecrated church had the right to shelter the fugitive from justice for seven days, and when the building was needed, he might be placed in a house provided for that purpose by the church, which was not to have more doors than the church itself. If the criminal was dragged forth from his refuge, the violators of the sanctuary were fined in varying degrees according to the rank of the ecclesiastical edifice. In addition to the inherent right of each church, special privileges were conferred on certain places by the exercise of the royal prerogative. In 1378, it was decided that the property of fraudulent debtors who had taken sanctuary should be liable for the satisfaction of the claims of their creditors. In 1486, Pope Innocent VIII. issued a bull relating to English sanctuaries, by which it was provided that when the refugee left his asylum, he lost his right of protection, even though he subsequently returned to the sanctuary. At the same time, the king was empowered to appoint keepers to look after those who having been accused of treason, had taken sanctuary. Great changes were made in the law during the reign of Henry VIII. Traitors were wholly exempted from the privilege; those abjuring the realm were not actually banished, but were to remain throughout life in the sanctuary, and if they left it and committed any offence, they might then be brought to trial. All inmates were to wear a badge twenty inches in length and breadth, were forbidden the use of weapons, and were not to leave their lodgings between sunrise and sunset. In 1538, the right of sanctuary was further restricted, and Wells, Manchester, Northampton, York, Derby, and Launceston were declared sanctuaries. Manchester found this privilege to be of such doubtful value that two years later it was transferred to Chester, and afterwards to Stafford. In the reign of James I., the right of sanctuary was abolished almost everywhere. The Palatine Counties had their special sanctuaries. In Cheshire, Hoole Heath, Overmarsh, and Rudheath were such places of refuge. The abbey of Vale Royal had also a grant. But generally the County Palatine of Chester was a place of resort for those who had come into conflict with the law in other parts of the kingdom, and it was not until the reign of Charles II. that the king's writ ran in the palatinates and other privileged places. Many privileged places in London, Westminster, and Southwark were brought within the regular jurisdiction in the reign of William III. and George II. We have an instructive picture of the working of the sanctuary system in the case of Manchester. The Act of 32 Hen. VIII., c. 8, abolished the right of refuge in all places except, and the exception is a considerable one--churches, hospitals, and churchyards. Perhaps a more important exception was that sanctuary was to be denied to those guilty of murder, rape, highway robbery, burglary, house-burning, or sacrilege. Whilst abolishing many sanctuaries, certain additional places were named as cities of refuge for minor offenders. One of these was Manchester. A year later the town petitioned to be relieved from this distinction. The inhabitants set forth that Manchester had a great trade in the bleaching of linen yarn, and in the making of linen and woollen cloths and dressing of cotton, and that the influx of dissolute persons to the sanctuary had caused serious damage to the prospects of the town, which, having no mayor, sheriff, or bailiff, and no jail, was badly circumstanced for dealing with these lawless invaders. The request was granted, and the sanctuary removed from Manchester to Chester. But the city of the Deva found it desirable to obtain relief, and a further removal was made to Stafford. The fridstool at Hexham still remains, although nearly everything else of the Saxon foundation has perished. This "chair of peace" was the central point of the sanctuary, which extended a mile around. A Durham example of the working of the law may be cited. "Memorandum: That on the 13th day of the month of May, A.D. 1464, one Colson, of Wolsyngham, Durham, who had been detected in a theft, and therefore put and detained in gaol, at length contrived to escape, and fled to the Cathedral Church of Durham, in order to avail himself of its immunities, and whilst he was there standing near the bier of St. Cuthbert, prayed, that a Coroner might be assigned to him. Upon John Raket, Coroner of the Ward of Chester in Strata (sic) coming to him, the same Colson confessed the felony, making upon the spot the corporeal oath that he abjured the realm of England, and would withdraw from it as soon as he could conveniently, and would never return thither, and which oath he took at the bier of St. Cuthbert in the presence of Master George Cornworth, Sacristan of the Cathedral Church of Durham; Ralph Bows, Knight and Sheriff of Durham; John Raket (the Coroner); Robert Thrylkett, Deputy Sheriff; Hugh Holand, and Nicholas Dixson, and of many others; by reason of which renunciation and oath all the dress of the said Colson belonged to the said Sacristan and his office; wherefore the said Colston was enjoined to take off to his shirt all his garments, and deliver them to the aforesaid Sacristan, and he did so, placing them all into his possession, the Sacristan gave up and delivered to him again, gratuitously, all his dress that he had up to this occasion been clothed in; and after that Colstone withdrew from the Church, and was handed over to the nearest constable by the aforesaid sheriff, and so on from constables to constables, holding a white cross made of wood as a fugitive, and so he was to be conducted to the nearest seaport to take vessel as one never to return. This was done on the day, month, and year aforesaid."[1] The system was one that led to gross abuse. It was held that the right did not extend to others than those whose offences entailed forfeiture of life and limb, but in practice knavish debtors, fraudulent executors, etc., availed themselves of the protection. There was plenty of scope for dispute as to jurisdiction. In 1427, the Abbot of Beaulieu was required to give proof of his right to shelter William Wawe, who is described as a heretic, traitor, common highwayman and public robber. "Wille Wawe was hanged," is the sum of the matter as recorded by Stowe. Between 1478 and 1539, at Durham, 283 persons took refuge who were, as principals or accessories, accused of homicide. There were sixteen debtors, four horse-stealers, nine cattle-stealers, and four house-breakers. One had been charged with rape, and seven with theft. One had been backward in his accounts, one had harboured a thief, and one had failed to prosecute. Sir John Holland, in revenge for the death of his esquire, killed the son and heir of Hugh, second Earl of Stafford, and then took sanctuary at Beverley. The murderer, in this case, was the half-brother of Richard II., but it was with great difficulty that the king was induced to grant a pardon. The church of St. John of Beverley had a charter from Athelstan, and near the altar was the Fridstool, or chair of peace, "to which what criminal soever flies hath full protection." The privilege extended for a radius of about a mile round the minster, and the limits were marked by stone crosses. Infraction of the right of sanctuary was punishable by severe penalties, and to take a refugee from the Fridstool was to incur both secular and ecclesiastical penalties, the latter extending to excommunication.[2] The widow of Edward IV. fled with her younger children for safety to the sanctuary of Westminster after her eldest son had fallen into the keeping of the Duke of Gloucester. Sir Thomas More reports the discussion in the Council of the Protector, and the arguments used by Cardinal Bourchier, which induced the queen to give up the Duke of York. The boy king, who was never crowned, and his brother were murdered in the Tower. It is noteworthy that this unfortunate monarch was born in the sanctuary of Westminster when his father was in exile. Skelton, the poet, died in this same sanctuary. The privileges of the sanctuary were not always respected. When Geoffrey, Archbishop of York, took refuge in St. Martin's Priory, Dover, he was dragged from the altar in his pontifical robes by order of the bishop of Ely, who was then Chancellor of the Kingdom. But this arbitrary proceeding was not the least of the causes of the downfall of William of Longchamp. When William Longbeard, who had been condemned to death, took sanctuary at St. Mary-le-Bow, Hubert de Burgh ordered the church tower to be set on fire to compel him to come forth. Longbeard abandoned his place of refuge, and was dragged to Tyburn, and there hanged. But although de Burgh was Archbishop of Canterbury and Justiciary of the Kingdom, and the Church was his own peculiar, his violation of sanctuary led to the loss of his great secular dignity. Later, when he had himself to seek refuge, a great debate arose as to his having been forcibly taken from a sanctuary, and he was restored to its protection, and escaped to Wales. Whilst the same rights of sanctuary existed in Ireland and in Wales, they were apparently not made use of to any great extent. In Scotland, the churches of Wedale, near Galashiels, and of Lesmahagow, near Lanark, were the most famous of the religious sanctuaries. The latter had also a royal charter from David I. These sanctuaries ended with the Reformation. The abbey of Holyrood and its precincts, which include Arthur's Seat and the Queen's Park, gave protection to debtors until, by the abolition of imprisonment for debt, its privileges ceased to have any meaning. One of those who thus sought refuge at Holyrood during a part of his career was Thomas de Quincey. Sanctuaries probably served a useful purpose in ages when the law was harsh and indiscriminate in its punishment of offenders. The limited protection afforded by the Church sanctuaries at least gave an opportunity for the first heat of revengeful feeling to subside, and the greater sanctuaries protected not merely vulgar offenders, but those whom the stormy tide of politics had placed at the mercy of their enemies. As the law became stronger, and the course of justice more certain, the need for these refuges ended, and those that continued were public nuisances, and mere centres of crime and anarchy, such as Scott has described for us in his picture of Alsatia. We may be thankful that sanctuaries are now merely objects of antiquarian interest and speculation. Trials in Superstitious Ages. BY ERNEST H. RANN. In superstitious ages, when belief in the power of the law to adjust all quarrels, to hold the balance equally between man and man, and to accord to each one his rights, was less prevalent than it is at the present day, disputants naturally resorted to other tribunals for the settlement of their claims. A perfect system of law was impossible; what law existed was arbitrarily administered, often for the benefit of the most powerful litigant, and the claimant with only justice on his side often had the mortification of seeing a verdict given against him. During the development of a system of law-giving, when the accumulated experience of humanity had not sufficed to produce perfection, man in his darkness, his ignorance, and superstition, turned to the supernatural, and devised certain ceremonies by which the judgment of God might be evoked to demonstrate the guilt or innocence of the accused. The antiquity of the ordeal, as it was called, cannot be measured. Such a form of trial is found to have existed in the earliest ages, and even now traces of it linger among savage tribes of the earth. In Africa especially the ordeal is well known. During his travels among the negro tribes north of the Zambesi, Dr. Livingstone encountered the curious practice of the "mauvi," which consisted of making all the women of a tribe drink an infusion of "goho," for the purpose of ascertaining which of them had bewitched a particular man. The accused women were drawn up in a row before the hut of the king, and the draught administered to them. Those who were unable to retain the horrible decoction, and vomited, were considered innocent of the charge: those who were purged were adjudged guilty, and put to death by burning. The Calabar bean is also used by the natives of Africa in the form of an emulsion as an ordeal for persons accused of witchcraft, proof of innocence consisting of ability to throw off the poison by vomiting. Among the Barotse tribes the process is conducted by deputy, the testing liquid being poured down the throat of a dog or cat, and the accused person being treated according to the effect produced on the animal. Among the Dyak tribes lumps of salt are thrown into a bowl of water by the accuser and accused, and judgment is given against the owner whose lump disappears first. Another method adopted by the Dyaks is for each of the two parties to choose a mollusc, and to squeeze over it a few drops of lime-juice; the owner of the mollusc which moves first under the acid stimulant losing the case. Ratzel mentions that among the Malay tribes ordeals by fire, ducking, pulling a ring out of boiling water, or licking red-hot iron, are still frequent. Where the ordeal fails to produce the desired result, wager of battel, in reality another form of ordeal, is resorted to. Among the Tagals it is usual to light a consecrated candle, and to consider the person guilty of the crime under consideration to whom the candle flame is blown during the performance of the ceremony. The Igorrotes have a more painful method of fixing guilt. The accuser and the accused are placed together; the backs of their heads are scratched with a sharply-pointed bamboo stick, and the man who loses most blood also loses his case. In Hawaii ordeals are administered by the priests, the suspected person being compelled to hold his hands over consecrated water, and adjudged guilty if the liquid trembles in the vessel while the priest looks at him. The Siamese have a form of ordeal which consists of making the two parties to a suit swallow consecrated purgative pills, the man who retains them for the greater length of time winning the case. Even among the comparatively enlightened races of the peninsula of India, ordeals of the most elaborate and curious character are practised at the present time. Warren Hastings mentions that in his day no fewer than nine forms were in use among the Hindoos. The ordeal of the balance was commonly employed, and is still in force in certain districts. The beam is adjusted, and both scales made perfectly even. After the accused has been bathed in sacred water, and the deities worshipped, he is placed in the scale-pan and carefully weighed. When he is taken out the Pandits pronounce an incantation, and place round his head a piece of paper setting forth the charge against him. Six minutes later he again enters the scale, and the balance is called upon to show his fault or innocence. If he weigh more than before, he is held guilty; if less, innocent; if exactly the same, he must be weighed a third time, when, according to the _Mitácsherá_, a difference in his weight will be observable. Should the balance break down, the mishap would be considered as proof of the man's guilt. The ordeal of the balance is not altogether unknown in English history, for an incident is recorded in which Susannah Haynokes, of Aylesbury, was accused of bewitching her neighbour's spinning-wheel, and preventing it from working properly. Susannah loudly protested her innocence, and demanded an ordeal to prove it. She was taken to the church, and weighed in a semi-nude condition against a copy of the Bible, and being able to outweigh the Scriptures, was considered to be innocent of the offence charged against her. Possibly it never occurred to the owner of the spinning-wheel that lack of oil was the cause of its refusal to go round. Among other ordeals in use by the Hindoos is that of iron, the accused being required to lick a red-hot bar of the metal. If his tongue be burnt, he is considered guilty, if not, he is reckoned innocent, but it cannot be supposed that among tribes addicted to this practice the injury to the tongue is considered sufficient punishment for the offence with which the suspect is charged. The poison ordeal, employed also, it may be noted, by the Hovas of Madagascar, is commonly practised. A small quantity of _vishanága_, a poisonous root, is mixed with clarified butter, which the accused must eat from the hand of a Brahman. If the poison produce no visible effect, he is absolved; otherwise, condemned. In other cases the hooded snake called _nága_ is placed in a deep earthen pot, from which the accused has to take a ring, seal, or coin without being bitten, when he is considered innocent. In trial by the Cósha the accused is made to drink three draughts of water in which images of the Sun, of Dévì, and other deities have been washed. If, within fourteen days, he is afflicted with any form of sickness, he is considered guilty. For the fire ordeal an excavation is made in the ground, and filled with burning pippal wood. Into this a person must walk bare-footed without hurt in order to prove his innocence. Hot oil ordeals are also in force, when the accused has to thrust his hand into the liquid without being burned; and chewing a grain of consecrated rice, which, if it comes from the man's mouth dry or stained with blood, is considered proof of his guilt. At other times a silver image of the Genius of Justice, called _Dharma_, is thrown with an image of iron or clay, called _Adharma_, into an earthen jar; and the accused is acquitted if he bring out the silver image, but condemned if he draw forth the iron. The history of the middle ages furnishes numerous examples of ordeals employed in the settlement of disputes, which in the absence of a strong and impartial system of law-giving, found great favour with the people of all ranks. They were peculiarly distinguished by the appellation of _Judicium Dei_, or judgments of God, and sometimes called _vulgaris purgatio_. The law of the Church sanctioned the ordeal throughout Europe for a considerable period, and faculties were freely given by the clergy for the performance of these strange ceremonials. Indeed, the whole business, as a judgment of God, was frequently conducted by the servants of the Church, always in consecrated ground, and the sacred edifice itself was occasionally requisitioned in order to add greater solemnity to the proceedings. The ordeal of fire, practised, curiously enough, by the Greeks in the time of Sophocles, was allowed only to persons of high rank. The accused was required to carry a piece of red-hot iron for some distance in his hand, or to walk nine feet, bare-footed and blind-fold, over red-hot ploughshares. The hands or feet were then immediately bound up, and inspected three days afterwards. If, on examination, no injury was visible, the accused was considered innocent; if traces of the burning remained, he was reckoned guilty, and received punishment commensurate with his offence, without any discount for the harm he had already suffered. The most notable historic instance of this form of ordeal is that of Queen Emma, mother of Edward the Confessor. She was accused of a criminal intrigue with Alwyn, Bishop of Winchester, and condemned to the ordeal of fire, which, on this particular occasion, took the form of nine red-hot ploughshares, laid lengthwise at irregular intervals, over which she was required to walk with bandaged eyes. She passed successfully through the severe trial, and at the conclusion innocently asked when the ordeal was about to begin. The Queen's innocence was, to the popular mind, established more substantially than would have been possible in any existing court of law. She was not the only gainer by the restoration of her reputation, for in consideration of the success which had attended her, she settled twenty-one manors on the Bishopric and Church of Winchester. In the Eastern Empire the fire ordeal was largely used by the Emperor Theodore Lascoris for the discovery of the origin of the sickness with which he was afflicted. His majesty attributed the malady to magic, and all suspected persons were required to handle red-hot iron in order to establish their guilt or innocence, "thus joining," as an ancient scribe exclaims, "to the most dubious crime in the world the most dubious proof of innocence." Fire, as we have said, was employed for persons of high rank: those of baser degree, especially bondsmen and rustics, were tried by the ordeal of boiling water. "I will go through fire and water for my friend" was a common expression in the middle ages, and, though having lost its original significance, the saying has persisted to the present time as a declaration of self-sacrifice. The accused person was required to take a stone from a pan of boiling water, to insert the hand and wrist into the liquid, and in case of the triple ordeal, to plunge the arm in up to the elbow. When cold water was employed, and in cases of witchcraft this was generally resorted to, the suspect was flung into a river or pond. If he floated without appearance of swimming, he was pronounced innocent; if he sank, he was condemned as guilty--rather a superfluous proceeding, considering that the man was in all probability already drowned. It would be going too far to assert that in all cases these ordeals were carried out with the strictest impartiality and consideration for the ends of justice. Means were not unknown to circumvent the peculiar forms of the trial, and precautions were often taken by the clergy, as might have been done in the case of Queen Emma, to protect those whom they desired to clear of suspicion. It is a well-known fact that white-hot iron may be licked with impunity, and the Mevleheh dervishes are proficient in the trick of holding red-hot iron between their teeth. Sometimes cold iron, painted red, was employed, and at others the fire reduced in temperature at the critical moment, the suspect receiving only such injury as would heal in the three days allowed before his hand was examined. Artificial preparations were frequently employed, while the suspect had at times the option of going alone into the church, and in all cases of keeping the crowd of spectators at a distance, which made minute inspection of the proceedings impossible. Another form of ordeal was the _judicium crucis_, or trial of the Cross, employed largely in criminal cases. When an accused person had declared his innocence on oath, and appealed to the judgment of the Cross, two sticks were prepared precisely like one another. The figure of the Cross was cut upon one of these sticks, and the other left blank. Each of them was wrapped in fine white wool, and laid upon the altar or the relics of the saints, after which a prayer was uttered that God might discover by unmistakable signs whether the prisoner was innocent or guilty. The priest then approached the altar, took up one of the sticks, and uncovered it. If it happened to be the stick marked with the cross, the prisoner was pronounced innocent; if it were the other, he was condemned as guilty. A different form of this ordeal was adopted when the judgment of the Cross was invoked in civil cases. The judges and all parties to the suit assembled in the church. Representatives, generally the youngest and strongest priests, were then chosen, and required to stand one on each side of a crucifix. At a given signal they stretched out their arms at full length, so as to form a cross with their body, and in this painful posture they continued to stand during divine service. The party whose representative dropped his arms first, or shifted his position, lost his cause. History records a dispute over a monastery, between the Bishop of Paris and the Abbot of St. Denis, which was settled in this manner. A crowd assembled, and arranged bets on the result, but those who supported the Bishop's man were sadly disappointed, for he dropped his arms at an early stage, and lost the cause of his employer. The ordeal of the Cross was abolished by Louis de Debonnaire in 816, on the ground that it was irreverent in character. Ecclesiasticism also played a prominent part in the ordeal of the corsnedd, to which persons accused of robbery had to submit. The corsnedd was a piece of bread made of unleavened barley, to which cheese made of ewe's milk in the month of May was added. Over the whole, one ounce in weight, a form of exorcism was uttered, desiring of the Almighty that the corsnedd might cause convulsions and paleness, and find no passage, if the man were really guilty, but might turn to health and nourishment if he were innocent. The practice is strongly remindful of the trial of jealousy in use among the Israelites, by which an unfaithful woman was compelled to drink holy water containing dust of the floor of the tabernacle, the belief being that she would be stricken with illness if she were guilty. The corsnedd was given to the suspected person, who at the same time read the sacrament. Godwin, Earl of Kent, was, in the reign of Edward the Confessor, accused of murder, and forced to the ordeal of the corsnedd, when, according to ancient chroniclers, the consecrated food stuck in his throat, and caused his death. Both the expressions, "I will take the sacrament upon it," and "May this morsel be my last," are supposed to have been derived from this curious form of law-giving. A somewhat similar custom is in vogue in Russia at the present day. Balls of bread are made and dropped into consecrated water, the priest meanwhile reciting the formula:--"Ivan Ivanoff, if you are guilty, as this ball falls to the bottom, so your soul will fall into hell." As a rule the culprit confesses immediately. In Ceylon, also, a similar form of ordeal is by no means unusual. A man suspected of theft is required to bring the person he holds in greatest affection before the judge, and placing a heavy stone on the head of his substitute, say, "May this stone crush thee to death if I am guilty of the offence." The Tartar sets a wild bear and a hatchet before the tribunal, saying as he does so, "May the bear devour me, and the hatchet chop off my head, if I am guilty of the crime laid to my charge." Another form of ordeal which was cherished and practised with assiduity was that of the bier, founded on the belief that the body of a murdered man would show signs, by bleeding or movement, when his assassin approached. The accused had to place his hand on the naked breast of the corpse, and declare his innocence, though the slightest change in the body was considered proof of his guiltiness. This method of finding out murderers had its origin, it is believed, in Denmark, where it was in the first instance adopted by King Christian II. for the discovery of the murderer of one of his courtly followers. The belief has survived to a certain extent to the present day, for even English peasants still expect all persons present at a funeral to touch the body in proof of their bearing no ill-will towards the dead man. Not so frequently employed, but still occasionally met with in ancient history, was the ordeal of compurgation, where the innocence of the accused was sworn to by his friends, and judgment went against the party whose kindred refused to come forward, or who failed to provide the necessary number of compurgators. It was a conflict of numerical strength, and the higher number carried the day. Another custom, still surviving, was to tie a key in a Bible opened at Psalm L, verse 18, "When thou sawest a thief, then thou consentedst with him," and balance the whole, the belief being that the book would turn in the hands of a guilty person. Challenging the accuser to mortal combat was a proceeding which found much favour with the warlike spirit of the middle ages. Of course it was considered that Providence would defend the right, even if a miracle were needful, but nevertheless each party placed considerable reliance on his own strength of arm and fighting skill. These judicial combats were in ancient times practised among the Jews, and were also common in Germany in remote ages, though they do not find mention in Anglo-Saxon laws, and were apparently not in use in England until after the Norman Conquest. In Germany a bier was placed in the midst of the lists, accuser and accused stood respectively at the head and foot, and remained for some minutes in profound silence before they commenced fighting. Civil, criminal, and military cases were, in the absence of sufficient direct evidence, decided by means of the judicial combat or wager of battel. The offended party had the right to challenge his accuser to settle the dispute by force of arms, and the forms and ceremonies connected with the trial are well illustrated in the opening scenes of "King Richard II." The combat took place in the presence of the court itself, Heaven being expected to give the victory to the innocent or injured party. It was commonly resorted to in charges of treason, as in the above-mentioned dispute between Henry Bolingbroke and Thomas Mowbray, when the ceremonies were of an imposing character. As in the majority of ordeals, deputies could be chosen to perform the requisite duties, but the principals were in all cases answerable for the consequences. No commoner was allowed to challenge a peer of the realm, nor could the citizens of London, for some obscure reason, indulge in these popular forms of legal administration. Each of the combatants professed his willingness to make good his claims, body for body-- "For what I speak My body shall make good upon this earth, Or my divine soul answer it in heaven." Neither sorcery nor witchcraft had to be employed, and the battel was to continue until the shades of evening had fallen, and the stars appeared. If the accused were killed, his blood was attainted, but if he were only vanquished, he was immediately condemned to an ignominious death by hanging, providing he accepted his fate without demur. The defeated party, however, might crave his life, in which case he was allowed to live as a recreant, on condition that he retracted unreservedly the false statements that he had sworn. At the Durham Assizes, on August 6, 1638, a wager of battel was offered and accepted, for deciding the rights to land at Thickley, between Ralph Claxton, demandant, and Richard Lilburne, tenant. According to an old chronicle, "the defendant appeared at 10 o'clock in the forenoon, by his attorney, and brought in his champion, George Cheney, in full array, with his stave and sandbag, who threw down his gauntlet on the floor of the court, with five small pieces of coin in it. The tenant then introduced his champion, William Peverell, armed in the same manner, who also threw down his gage." But the champions, instead of being allowed to fight, were ordered to appear at the Court of Pleas in the following month. Legal arguments followed, and the trial by battel was eventually postponed indefinitely. In criminal trials no deputies were allowed, and the parties were compelled to settle their quarrel in person, unless one of them was a woman, an infant, or a man over the age of sixty, or was afflicted with lameness or blindness. In the case of any of these disqualifications, trial by jury could be claimed and insisted upon. One of the most remarkable wagers of battel occurred in 1817. A young woman named Mary Ashford, living at Erdington, near Birmingham, was supposed to have been murdered early one morning when returning from a dance. Suspicion fell on Abraham Thornton, a partner of the previous night, who was tried for the crime and acquitted. Evidence for another trial was collected, and Thornton was _appealed_ by William Ashford, the direct heir male of the murdered woman. But when the proceedings commenced, Thornton's counsel took refuge under a very old Act, by which no man could be tried on a second charge of murder, on which he had been acquitted, except by wager of battel before the king, between the heir-at-law of the person murdered and the accused. The appellant, Mary Ashford's brother, declined the combat on the ground of physical inferiority, and Thornton was discharged. Immediately afterwards the antiquated law was removed from the Statute Book. This marked the end of trials by ordeal as recognised by law. The process of extermination had long been in progress, but popular opinion was against reform, and certain of these curious customs survived. Although the clergy had at first taken part in these ceremonials, and presided over them in church, they came in time to discountenance them. The canon law declared against ordeals as being the work of the Devil, and a decree to this effect was issued in the eighteenth canon of the fourth Lateran Council in November, 1215. Upon this authority it was thought proper, says Blackstone (as had been done in Denmark a century ago), "to disuse and abolish these trials entirely in our courts of justice by an Act of Parliament, Henry III., according to Sir Edward Coke, or rather by an order of the King in Council." The actual date of the abolition of ordeals by fire and water was 1261. On the Continent these forms of trial had been abolished by civil and ecclesiastical law much earlier, although in 1498 an attempt was made to test the doctrine of Savonarola by means of a challenge from one of his disciples to a Franciscan friar to walk through a pile of burning wood. Old customs die hard, and the incident is a curious and interesting instance of the persistence of a popular form of trial even among the members of a party by which it had been condemned. On Symbols. BY GEORGE NEILSON. The wayward fancies of mankind are well illustrated in the diversity of symbolic observances, some never losing their meaning, some absolutely unintelligible in their historic form, and some as much characterised by a befitting dignity, as others are by the want of it. All once were self-explanatory and possessed a measure of propriety proportioned to the state of the people amidst whom they originated. But tradition is long, centuries elapse, each modifying a ceremony, and when the procedure emerges within the knowledge of record, it has often so lost touch with its surroundings, that it is hopeless to speculate how it arose. Symbols are drawn from and applied to every field of human activity. Of course in a general sense man expresses himself only so, and a regular alphabet is but a comparatively trifling advance on the language of signs. What we call civilization, is at bottom little more than a clear recognition of certain symbols of government. The Queen's crown, the Judge's ermine, the Mayor's mace, what are they else? The sceptre is only a glorified stick, of which the policeman's baton is a humbler shape. Each embodies the great thought that behind it stands a nation's determination to be ruled by law. In the history of law, symbol and the traces of symbol meet us at every turn. The middle ages teemed with them. Roman law had bequeathed not a few. Perhaps the most wondrous of them all is one that has long ceased to have any legal connection, although its mark is all-powerful over civilisation. How daring was the imagination which prompted the choice, for the heraldic badge of Christianity, of the dread emblem of capital punishment by crucifixion! In the pure domain of the law of the early and middle ages, a perfect wilderness of symbols presents itself to eyes which strive to explore the origins of institutions. Law is ever beset by a tendency towards formalism, and in early times a severe insistence upon ceremony, no doubt, gave prominence and prescriptive sanction to symbolic acts. Law and custom after all only mean that the way things were done yesterday is the safest way of doing them to-day. The acceptance of a common form implies a very large public consent, which is equally necessary to its abrogation, once it is accepted. No small part of its value lies in its certainty, "certainty which," Coke well says, "is the mother of quiet and repose." Hence the fixity and longevity of many emblematic methods of performing acts affecting status or property rights. The constitution or discharge of slavery, or the transfer of a slave from one master to another, had a variety of set forms. A freeman might deliver himself to serfage by putting a leathern thong upon his neck. When a church was the donee, the ceremony might take place at the altar, and the man present himself there with cords round his throat. "Thus he offered himself," says an old record, "to the Almighty Lord." A coin or two on the head was also a customary part of the process. In the manumission or liberation of the slave, these coins struck off the head served the purpose of declaring him free, as did the companion symbol of open doors, or the placing him at four cross roads, and bidding him go whither he would. Another common symbol of enfranchisement was the delivery of an arrow, thought to denote the right confined to freemen of bearing arms. Even a short account of legal symbols would make a very large treatise. Single instances such as the ring, the staff, the glove, and the horn would each furnish material for an elaborate monograph. The theme would call for a discussion of the great war of investitures, and would touch very many points of ecclesiastical, civil, and criminal law and history. The scope of the present unambitious article is only directed to a few illustrations in relation to the transfer of land, the act of divesting the old proprietor and clothing the new with his rights. Although such symbols usually had a connexion with the subject conveyed, there are many types in which that connexion is not readily traceable. Why for example amongst the Saxons should a resignation of all interest in an estate have been made by a gesture with curved fingers? One can understand why a sod should be so often a token, but why does the glove play so large a part in Merovingian and Carolingian conveyancing? Was it, indeed, as German scholars speculate, because the donor metaphorically took it off and the donee put it on, making his the covered hand, the _vestita manus_, that would defend the land conveyed? How came an eleventh century magnate to attest his renunciation of justiciary rights to a monastery "by cutting off the top of the silk band by which his fur robes were fastened to his breast, and with that segment re-investing three monks therein?" In this case a portion of that silken band was carefully sewn up, as an adminicle of evidence, in the writ recording the transaction. How again came it that a claim of feudal service might be departed from by the delivery and placing of a wand (_virgula_) upon the altar? All these are much more personal symbols than real. They are mainly guarantees of the grantor's good faith. They do not seem to be primarily emblems of possession. The contrast between these two classes will be best appreciated by considering types of the latter. When a purchaser proceeded to set up fresh boundary marks, or to take a spade and dig, or when he received delivery of a sod with grass or shrubbery upon it, or lifted from the ground the charter granted by the seller with amongst other things a sod laid thereon, the act of seisin, the formal occupation is visibly completed. Of this class of symbol, the sod (_cespes_) is probably the best and most typical for a few words of illustration. We read of litigants laying judicial claim to land in the mall or public court by putting their spears into a sod, representative of the subject in dispute. We hear of the sods being cut in the shape of bricks, and of their being preserved as memorials, with the twigs growing in and incorporated with them. We hear of sods offered on the altar when the grant of land was being made to a church. We hear of transfer from one vassal to another being accomplished by the grantor delivering the sod to the over-lord, and the latter passing it on to the grantee. Of all the symbols employed in connection with feoffments, however, the rod (_festuca_) had the widest vogue on the continent. Not that it was restricted to transactions in land; it was a more or less lineal descendant of the Roman stipulation, a contract visibly expressed by the parties breaking a straw between them. Under Charlemagne a renunciation by certain priests was made by them "holding straws in their hands and casting them from them before God and his angels." Later this appears as a recognised method of renunciation, but with a rod substituted for the straw. In some cases the fact of renunciation is emphasised by the rod being not only thrown to the ground by the resigner, but trodden under foot when there. The rôle of the _festuca_ was peculiarly important amongst the Frankish peoples.[3] Galbert of Bruges, a Flemish twelfth century historian, states that the counts of Flanders gave investitures to their vassals, after receiving their fealty and homage, by a wand (_virgula_) held in hand, and he has a dramatic passage describing how the people of Bruges, in token of their renunciation of their feudal bond to Hacket the castellan, "picking up bits of stick exfestucated their homage and fealty," _i.e._ cast the rods from them, and so doing severed all connexion with their former chief. In England and in Scotland, this rod symbol (_fustis et baculus_) also played a large part. Bracton referred it specially to land without houses. Tenure by the verge, a species of copyhold, had its name, we learn from Littleton, from _un petite verge_, delivered by the old tenant to the steward or bailiff of the manor, who re-delivered it to the new holder. Jordan Fantosme tells us that when Brien, messenger of Ranulf Glanvil, in 1174, announced in Westminster the capture of the Scottish King at Alnwick, Henry II. rewarded him for his good news by handing him a stick (_bastuncel_), which vested him in ten librates of land. In Scotland the feudal resignation by a vassal to his overlord for the re-investure of a fresh owner was effected by "staff and baton" (_fustis et baculus_), and references to those symbols occurred in every day conveyancing until far into the present century. Indeed this picturesque ritual was, strictly speaking, not abrogated, although made unnecessary, by the Act 8 and 9 Victoria ch. 35. The commonest conveyancing symbol for land in England was the formal delivery of turf or twig of the ground conveyed, made by a representative of the grantor, to a representative of the grantee. The most familiar in Scotland was the handing over of "earth and stone." This latter was the normal form of seisin, and its history goes far back, not only in Scotland, but on the continent as well. A curious Saxon legend attests this. Widukind narrates that some Saxons, having landed from their ships in Thuringia, one of them, wearing a golden torque and bracelets, met a Thuringian, who asked if he would sell his ornaments. The sly Saxon entered into an odd transaction; the Thuringian gave him in exchange for his gold, a lapful of soil. The Thuringians rejoiced exceedingly over the smart bargain their countryman had made, but changed their tune when soon afterwards the Saxons claimed the land as theirs, purchased with their own gold, and by force of arms made good the demand. Our chronicles have a good many stories about symbols. In the Norman _Brevis Relatio_, a sketch of the origin of William the Conqueror, is told of his grandfather, Duke Richard the Good, that once when staying at a monastery, after prayer in the morning he laid a spindle on the altar. Upon being asked what it meant, he named the manor which he had by so homely a symbol bestowed for the good of his soul. When the infant William came into the world, it was said,--and afterwards noted as prophetic--that when they laid him down upon some straw, the little hands each clutched a handful. Acquisitive tendencies were foreshadowed! The _Roman de Rou_ tells that in 1066, when William landed in England, he stumbled and fell, an omen which for the moment disconcerted his followers, but rising with a shout, he swore by the splendour of God that with his two hands he had taken possession of the land. Prompt to catch the occasion, one of his men ran forward to a cottage, tore a handful of thatch from the roof, and passed it to his chief, with the cry, "Receive this seisin,"--quasi-ceremonial words which with William's pious, "God be with me," the curious may compare with the formalities of English livery in deed, as described (sec. 59), in Coke upon Littleton. The normal symbol of seisin for a house in England, was (before the Act 7 and 8 Victoria ch., 76, superseded these archaic ceremonies), was the ring or hasp of the door, known in Scotland for houses in burghs as "hasp and staple." In the latter country also, there were a good many special types of symbol characteristically appropriate to seisin in special kinds of property. Thus for mills "clap and hopper," for fishings "net and coble," for teinds (Anglice tithes) a sheaf of corn, for the patronage or advowson of a church a psalm-book and keys, attained the figurative purpose requisite. There were many others less familiar amongst them, one, a hat, worthy of a few words all to itself. Our own generation may not regard this as a particularly dignified symbol, but there is a cloud of witnesses to shew its very various applicability. The priest's cap or biretta was sometimes employed to instal him in a chaplainry or benefice. And apart from the place of the hat in the regulations of the tilting ring, it was occasionally used in Scotland as a symbol in connection with what were known as heirship goods. But it had in the twelfth century been accorded the very loftiest use to which secular symbolism could be turned. In 1175, King William the Lion, taken prisoner the year before, relinquished the independence of Scotland, and did homage to the English King at York, as a condition of his liberation. The contemporary records are silent regarding symbolic details, but in 1301 Edward I. stated in his letter to the Pope that "in token of his fealty, William the King of Scotland, had, on the altar of St. Peter's, at York, offered his cap (_chappelus_), lance, and saddle, which until this day remain and are preserved in said church." Any incredulity which a fair-minded Scot can entertain, regarding this allegation that the freedom of his country was once symbolically surrendered in King William's cap, will be materially lessened, and Scottish patriotism so far consoled, by the recollection that under very similar circumstances the realm of England was in 1193 given away with the bonnet (_pilleus_) of the captive Richard I., who, thus (as Hoveden tells us), gave investiture of his kingdom to his arch-enemy, the Emperor Henry VI. This was, however, only formal: the Emperor at once re-invested King Richard in his realm with a double crown of gold, though subject to an annual tribute of £15,000--a business transaction painfully illustrative of the Christian chivalry of the Crusades. The annals of Scotland boast one instance of a royal symbol much more regal than either of these two. About the beginning of the year 1124, King Alexander I., restoring by charter to the Bishopric of St. Andrews an extensive tract of land, completed the grant according to Andrew of Wyntoun (vii., 5), in a truly stately fashion. He-- Gert than to the awtare bryng Hys cumly sted off Araby Sadelyd and brydelyd costlykly Coveryd with a fayre mantlete Off precyous and fyne welvet Wyth his armwris off Turky That pryncys than oysid generaly And chesyd mast for thare delyte Wyth scheld and spere off sylvyr qwhyt. It was a special occasion, for Bishop Robert's appointment, which had led to the grant, was a Scottish victory over the pretensions of the See of York. There is an appeal to the imagination so strong in the scene, that, in spite of the interval of 300 years betwixt the event and this oldest record of it, one is slow to offer any criticism on the charger; more especially as the entire verity of the silver spear is corroborated by Walter Bower's enshrining in his Scotichronicon the fact that in the fifteenth century it was doing duty as the shaft of the cross in the Cathedral. Yet the unexampled symbol, coupled with the analogy from York in 1175, compels the suggestion, that perhaps during these 300 years an original _capellus_ have been mis-read as _caballus_, or mistaken for Scottish _capul_, and thus by the magic of mistranslation, a king's cap _may_ have been transmuted into an Arab steed. Whilst of course a crown was the standard symbol of investiture for a kingdom, inferior rights of principality were often typified by other things, such as a sword, a spear, or a banner. And as feudal forms were observed in the bestowal, so were they sometimes in the taking away. England dispensed with several of her monarchs, but apparently in no case was a deposition attended by the feudal solemnities. In Scotland when, in 1296, King John Balliol was pulled out of the throne by the same hands as had placed him in it, Edward I. spared his vassal little of the indignity of the situation. Balliol, deprived of his royal ornaments, with the ermine stripped from his tabard, resigned his realm by the symbol of a white wand. Than this Jhon tuk a quhyt wand And gave wp in till Edwardis hand Off this Kynryk all the rycht. No Scottish historian has noticed the absolute legal propriety of this, and it is worth noticing. By contemporary law (_Britton_, ii., 22), _une blaunche verge_ was the recognised symbol of disseisin by consent. The thirteenth century was very particular, even in small things, about its law. _Disseisin_, provided for by statute of 1429, in disputed successions to real property, and known to Scotland as the breaking of seisin, was symbolically affected--_frangendo discum_--by the curiously expressive act of breaking a dish or dishes, with fire underneath. Law under the Feudal System. BY CUMING WALTERS. To the historian proper feudalism presents a wide subject with diverse points of interest, but its legal aspect is comparatively a small matter, and it can be considered without detailed reference to the whole vast scheme which existed from early German and Gothic times, and overspread the greater part of Europe. It is a common error to suppose that it was introduced into England by the Normans. William the Conqueror only superimposed a French form of feudalism upon that which already existed; and all historians agree that the measures he adopted, the restrictions he made, and the original conditions he established, were evidence of his farseeing genius, and a masterpiece of statecraft. His was a feudalism which, while giving the lords great personal power and influence, retained them still as the servants of the king, and totally prevented them from using their strength against the throne. In this respect the feudal system in England never resembled that of Germany and France, or even that which the Norman barons established in Scotland. The Conqueror had no intention of allowing the owners of territory to supersede his own authority, and to be beyond the sovereign's control. While, therefore, he allowed them all liberty in dealing with their dependents, he made it impossible for them to defy his own authority, first by distributing their possessions so that they could not have a great army of followers at command, and, secondly, by insisting upon a formal declaration of allegiance from both the barons and their vassals. The former, therefore, were not beyond the law, and the latter had nominally, if not actually, some right of appeal to the monarch. These points it is necessary to bear in mind for a full understanding of legal procedure during the long period feudalism prevailed. The feudal lord's claims upon his vassals were numerous. First came his claim to their military service. He could demand from them service as assessors in his courts of various fines and payments and confiscations of land. He could dispose of females in marriage; not infrequently he consigned them to a debased existence. When the tenant was invested with possession of his feud or fief, he paid homage to his lord, that is, he proclaimed himself the "man" to help and to serve his master. Kneeling humbly before the baron, he took oath of fealty, and practically enslaved himself. It was here that King William showed his wisdom by ordaining that the oath of allegiance should be not only to the feudal superior, but to the monarch as the head of all, and thus he secured the ultimate service of all vassals to the crown, and deprived the barons of autocratic power. The Saxon feudalism had been of the most tyrannical character, the owners of slaves making their own laws, and carrying them out with the utmost barbarism. Records exist which prove that for slight offences mistresses were accustomed to order their servants to be scourged to death, or subjected to fearful tortures. For breaking a dish, or spilling wine from a cup, for example, a servant might have his ears cut off, his nose slit, or suffer the loss of his hand, according to the caprice or fancy of his lord or lady. While murderers and robbers could find sanctuary in the Church, servants had no such refuge. They were torn away from the altar to which they clung in their terror, and none could or would intervene to protect them. According to the decree of King Ethelred, public punishments were to be mild, and death sentences were seldom to be passed; but the sovereign's wishes had no effect upon the treatment of bondmen. High-born women were as cruel as their husbands, and King Ethelred's own mother is said to have beaten him so severely when he was a child that he regarded whipping instruments with horror to the end of his life. Flagellation was not recognised as a legal punishment by the Saxons, though a husband might beat his wife and incur no penalty, while the whipping of slaves was accounted no more than the whipping of animals, and perhaps less. For all other classes money-fines were almost the only authorised penalty, a fixed price being set upon persons of different degrees. But the slave had no real value, and hence could be mutilated or killed at the pleasure of his lord. The ideal of feudalism, never realised in England, was that the king and his tenants-in-chief should hold law-courts, which the tenant or the sub-tenants should be bound to attend to have their cases tried according to statute rules. But the system was only imperfectly carried out, and the fact that the tenant-in-chief, or feudal lord, had the right to levy taxes (called "tallage" or "tailles") on his vassels, speedily led to all sorts of tyranny and abuse. Still, the feudal courts could not engross the legislation for the excellent reason that the quick-witted Conqueror had preserved the Witanagenot and the courts of the shire and the hundred to check the barons. The latter made a big effort to introduce the Continental system of feudalism, by which each of them would have been supreme in his domain; but the plans were defeated as we have seen. William's successors were men of a different stamp, and the system proved unworkable in the hands of weaker men. "The prince," says Hume, "finding that greater opposition was often made to him when he enforced the laws than when he violated them, was apt to render his own will and pleasure the sole rule of government, and on every emergency to consider the power of the persons whom he might offend rather than the rights of those whom he might injure." The mischievous course pleased none, and the royal prerogative was at last systematically assailed by the barons in the time of John, and the Magna Charta wrestled from him. The concessions then made were of benefit to the barons rather than to the landless and dependent classes, and it remained for the third Edward to diminish their power and increase the liberties of the populace. Law in England during all this period was chiefly a system of oppression, proceeding stage by stage from the highest to the lowest. The revenues of the crown were obtained by extravagant rents, forfeits, taxes, reliefs, fines, aids, and other devices which show the amazing ingenuity of the extortioners. The result was that most tyrannical exactions were made in turn by the feudal lords, and the dependents groaned for six centuries under these lawless yet legalised oppressions. Personal property was at the mercy of the lords, who adopted the most cruel means to enforce their "rights." They, in turn, could be the victim of extortions, as was proved in the case of Roger of Dudley, who was summoned to receive the honour of knighthood in 1233. He found the honour so expensive that he declined to appear, whereupon a writ was issued--"Because Roger de Someri, at the feast of Pentecost last past, has not appeared before the King to be girded with the military girdle, the Sheriff of Worcestershire is hereby commanded to seize on the house of Dudley and all other lands of the said Roger within his jurisdiction, for the King's use; and to keep them with all the cattle found upon them, so that nothing may be moved off without the King's permission." The same Roger had a twelve years' dispute with William de Birmingham touching the service due for the manor of Birmingham, for which the latter was required to perform the service of eight knights' fees, a half and a fourth part, and also to do suit to the court at Dudley once every three weeks. In such wise did these cheftains rule. Another curious piece of law relating to the Dudley lands is told by Leland:--"The lorde Powis, grauntfather that is now, being in a controversy for asawte made upon hym goying to London by the lord Dudeley, Dudeley castelle condesended by entreaty, that his son and heir should mary the olde lorde of Dudleis' daughter." A very amiable method of atoning for personal violence. The feudal lord had absolute power over his own family, as well as over his dependents, the laws of household government being entirely of his own devising and prompted by his passion, his ignorance, and his wickedness. Robert de Belesme, Earl of Shropshire and of Arundel and Shrewsbury, one of the most powerful and defiant barons of Norman times, tore out the eyes of his own children when they had, in sport, hidden their faces beneath his cloak. He cast his wife in a dungeon, heavily fettered; but every night he sent his servants to drag her to his bed, and in the morning sent her back to her prison. This torture he inflicted upon her to gain money from her family. He disdained to allow his captives in war to be ransomed, but impaled them, men and women, upon stakes. His friends were terrified to approach him, for by way of pleasantry he would engage them in merry chat and suddenly plunge his sword into their sides with a loud laugh. No law could touch this man, and no avenger arose to overcome him. The Warden of the Welsh and English Marches made also his own laws, which were conceived in a spirit of the utmost cruelty. Border foragers, for example, were cast into a dungeon, and subjected to the punishment of having their right hands chopped off with the axe. This prescribed penalty was often aggravated by additional torture or death. Feudalism was deep-rooted, so deep-rooted that not the enactments of all the Normans and Plantagenets could do more than check its growth and gradually ameliorate its severities. But while some of the old customs were abolished, the bulk of the laws remained based upon the Anglo-Saxon customs, so that as one writer has tersely explained, "the Land Laws and Game Laws are derived from the Normans, the Common Law from the Anglo-Saxons, and almost all our Statute Laws breathe the spirit of pre-Norman England." To this Macaulay refers with ill-disguised scorn in his History: "Our laws and customs have never been lost in general irreparable ruin. With us the proceedings of the Middle Ages are still valid precedents, and are still cited on the gravest occasions by the most eminent statesmen.... Thus in our country the dearest interests of parties have been staked on the results of the researches of antiquaries." The historian, however, does admit that there is compensation for the anomalies which result from this polity. "Other societies possess written constitutions more symmetrical. But no other society has yet succeeded in uniting revolution with prescription, progress with stability, the energy of youth with the majesty of immemorial antiquity." That the spirit of olden feudalism should sometimes be found surviving in modern laws is inevitable. Villenage is extinguished, and yet in the very character of certain classes, as well as in the operation of certain laws affecting lands and personal privileges, we see a direct connection between the submission of the bondman in the past to his hereditary master and the readiness of the poor in the present to yield to one in higher station. What struck the philosophic Emerson most, on his visit to England, was that Englishmen should maintain their old customs, repeat the ceremonies of the eleventh century, and consider in so many things that "antiquity of usage is sanction enough." "The Middle Ages," he said, "still lurk in the streets of London." The stocks and the whipping-post, which stood in front of every castle, were the commonest instruments in use for the punishment of the ceorl and villein who displeased their masters. For the ceorl, who could not quit the land on which he was born, or free himself from slavery, life was particularly hard. He could not absolve himself by money payments, like the rest of his fellow-men, if once he gave offence; while the majority could rob and murder and escape with a fine, the ceorl's slightest defect, real or imagined, was punished with merciless rigour. Tithings and the process of compurgation came to the assistance of other criminals, but the ceorl could appeal to none, and expect neither pity nor aid. Such facts give point to Emerson's dictum that "Castles are proud things, but 'tis safest to be outside them." The villein was in a much happier state than the ceorl. He was free against everybody except his lord, and the criminal code accorded him the same privileges as a free man. The lord was even liable to punishment for killing or mutilating his villein, and the _Mirror of Justice_ in the thirteenth century laid down the fact that "the villein is no serf in any sense of the word; he is a free man; his land is a free tenure." But all this is largely comparative, and our estimate of the advantages enjoyed by the villein must depend upon whether we view it by the standards of the time, or by modern standards. At all events, while the ceorl tasted all the bitterness of his serfdom, the adjudged felon in other stations was able to obtain much leniency. The common form of oath or abjuration in King Edward's time was this: "This heare, thou Sir Coroner, that I am a robber and a murderer, and a fellow of our Lord the King of England; and because I have done many such evils in his lande I do abjure the lande of our Lord Edward, and I shall haste me towards the port of ----, which thou hast given me, and that I shall not goe out of the highway, and if I doe, I will that I be taken as a robber and a felon. And that at such a place I will diligentlie seeke for passage, and I will tarrie there but one ebbe and flood, if I can have passage; and unlesse I can have it in such a place I will goe every day into the sea up to my knees, assaying to pass over; and unlesse I can do this within fortie days I will put myselfe again into the Church as a robber and a felon, so God me helpe and his holy judgment." But King Richard showed no disposition to put so much trust in the honour of these gentry, and when setting out for Palestine, he made a law against peculating sailors, which was calculated to dismay them: "Whosoever is convicted of theft shall have his head shaved, melted pitch poured upon it, and the feathers from a pillow shaken over it, that he may be known; and shall be put on shore on the first land which the ship touches." This punishment reminds us of a modern American institution. The law of "Englishry" deserves a passing note. It dates back to the time of Canute, and was continued by the Normans. When Canute sent away the greater portion of his Danish troops, "the Witan pledged themselves that the rest should be safe in life and limb, and that any Englishman who killed any of them should suffer punishment. If the murderer could not be discovered, the township or hundred was fined." The proud and tyrannical Normans used this law to their own advantage. A mere Englishman being a vassal, and of no importance, could be killed with impunity, but it was ordained that when a man was found killed, and evidence was not brought to prove that he was English, he should be held to be a Frenchman, so that a penalty could be imposed upon the township. This law of "Englishry" is often illustrated in old chronicles. Men were found murdered by the roadside, on heaths, and in woods; the chronicles state that "no Englishry was proved," and the towns were accordingly amerced. The "Frankpledge" was not so feudal in character, though it was based upon the principle that "every landless man shall have a lord who shall answer for his appearance in the courts of law." The custom prevailed before the Conquest, ten men forming a "tithing," the members of which were answerable each for others. The present Court Leet is a survival of the system, though in a very modified form. The feudalism which the Norman barons imposed upon Scotland, and which was unchecked by King William, so that it reproduced all the evils of the ferocious Continental system, was marked by terrible excesses. No institution was more shameful and abhorrent, or so vividly reveals the baseness to which unrestricted feudalism sank, than the horrible depravity of maiden-rights, or _droits de seigneur_. Beaumont and Fletcher founded upon the historic incidents their drama of "The Custom of the Country," and though a few mild attempts have been made to throw doubt upon the facts, there is no question that these domestic tyrannies spread rapidly from Scotland to France and Germany, and took numerous odious forms. Isaac Disraeli, in his "Curiosities," devotes a chapter to the subject, which can scarcely be dealt with in detail in a work appealing to the general reader. The shameful institution was abolished by Malcolm III., who, however, put the matter upon a business basis by ordering that it should be redeemed by a quit-rent. But the lord still considered himself privileged to manifest his authority over his vassals by thrusting his booted leg into the bed of a newly-married couple, or by sousing the bridegroom in a river. The wardships enjoyed by the feudal lords were equally absurd, one of their favourite methods of raising money being to arrange an unsuitable marriage, and on the refusal of the persons to carry out the contract, to claim the revenue of the wards' estate as "forfeit." The feudal lord could sell his vassals as he did his animals, and they were often bartered away with fields and houses. The value of a serf was roughly apprised as four times that of an ox, and he could also be used as "live money." Mr. Ruskin, in his third letter in "Fors Clavigera," gives an account of the laws promulgated by King Richard, Coeur de Lion, whom he declared to be the truest representative of the British "Squire," under all the significances of that name. The ideal lord was an admixture of the patriarch and the tyrant, and if we examine Richard's legislation, and endeavour to recognise the objects he had in view, we see that with a considerable amount of selfishness he also possessed a real wish to add to the welfare of his people. He simplified and adjusted the weights and measures of the country to put an end to cheating, and he took severe measures "to prevent the extortions of the Jews." If the people would be honest, he was quite willing to do the fighting for them; if they made good cloth, he was ready to see that they got good pay; and when they bought and sold, he was determined that each should give the other good measure. But with much power comes caprice, and the feudal lords too soon forgot the interests of their dependents in serving their own ends. The English barons never made the formal claim of the German barons to rob on the highways in their own territories, though, without asserting the right, they frequently performed the act. A case in point is that of William de Birmingham, who so late as the sixteenth century went out with a hundred men to molest and rob travellers on foot. The ordinary laws were unequal to calling them to account for these misdeeds; nothing but conquest by battle could have checked them. Besides, there were Lord Palatines whose rule in their own domains was equal to that of the sovereigns, and they could make or abrogate laws at will. These kings _in petto_ appointed their own judges and courts, could reverse sentences, pardon at will for any crime, and indict at pleasure. Offences committed in the County Palatine were said to be "against the peace" of the lord, and not against the peace of the king, and it was with a rod of iron that these despots governed the territory allotted to them. Still there was a show of legality in this. It differed from the wanton caprice of Geoffrey of Coventry, who oppressed the inhabitants, was amenable to no law for so doing, but consented to remit the burdensome taxes if his wife would ride naked through the streets. As a specimen of the barbarous humour of these lords, the Godiva story is instructive. At the end of King Stephen's troublous reign, there were eleven hundred and fifteen castles in England, each of them a centre of power, at that particular time almost absolute. The wise provisions of the Conqueror had to some extent been overcome, and the feudal lords had become so unmanageable that Henry II. found himself compelled to stipulate for the destruction of a number of the strongholds. At the same time he prevented the erection of others except by royal licence, and so began to limit the oppression which had prevailed. We find, too, that in consequence of the frequent over-riding of the common law by men in authority, the monarch reserved to himself more and more of sovereign power, "by which," says Sir Robert Filmer in his famous "Patriarcha"--answered by John Locke in the still more famous treatises on Civil Government--"he did supply the want or correct the rigour of the common law, because the positive law, being grounded upon that which happens for the most part, cannot forsee every particular which time and experience bring forth. Already sundry things do fall out," he continues later, "both in war and peace, that require extraordinary help ... so that rare matters do grow up meet to be referred to the absolute authority of the prince." We find such a case in the time of Richard II., when, on a question of freehold, the appeal went direct to the king because "of maintenance, oppression, or other outrages the common law cannot have duly her course." How the lords could avoid and defy the common law is proved by two curious instances in the history of the Dudleys, the family previously referred to. Lord Edward Dudley, in 1592, had a dispute with the neighbouring Lyttelton family, and raising some 150 persons, he went one night and stole all the cattle on the latter's estate. Lyttelton obtained judgment against Dudley, who was ordered to return the cattle, but he posted his servants at the gates, and bade them cut the bailiffs to pieces. Lyttelton then armed sixty men and took the cattle back by force; Dudley armed 700 men to fetch them back and kill them. For this offence the nobleman and eighty followers were indicted, but by one means and another the proceedings were made to last four years, and then an agreement was entered into by the parties. Lord Edward's son, Ferdinando, was the hero of the next exploit. He purchased the property of an oppressed widow, named Martha Grovenor, for £1200, but only paid £100. She sued him in the Exchequer for the remainder, and obtained judgment for the balance. No notice was taken of this. The following year the widow obtained a second decree, and this again was ignored. His lordship was next called upon for costs, and this led him to make an effort to compromise the matter. He entered into an agreement to pay all arrears and costs, but, having done so much, refused to fulfil his obligations. An execution of ejectment was then levied against his lordship. This he avoided for nine years, and it was only twelve years after negotiations had begun that the widow was able to obtain her dues. A very brief glance at Continental feudalism and its influence upon statute law may now be given. It enables us to mark some of the differences between the English and the foreign systems, the one with its restrictions and the other all-powerful. In the eleventh century, all France and the German Empire were one vast feudal possession. The powers of the lords have been classed by the historian Hallam as follows--First, the right of coining money; second, that of waging private war; third, exemption from all public tributes except the feudal aids; fourth, freedom from legislative control; and fifth, the exclusive exercise of original judicature in their dominions. It is easy to perceive how, with these initial powers conceded, the seigneurs were enabled to make themselves the veritable masters of the kingdom. In Germany the lawlessness of the barons became as proverbial as did their cruelty towards their slaves. The whole country was divided up into territories over which the feudal chiefs reigned as absolute and despotic kings. Nor is the spirit of feudalism in that country yet extinct, for, unlike France, it has not had its bloody revolt against "aristocrats." No one can have travelled in Germany and seen the castle towering high on crag or rock, and the diminutive houses scattered about its base, without realising at a glance how the chieftains and their serfs lived in the old days. In Germany the feudal system was seen at its strongest and its worst, and law was paralysed while the men of lust and blood were supreme in their own dominions. Austria has a similar story to tell of barbarity towards serfs, and the abrogation of law by powerful chieftains. But it is remarkable that in Russia, where the feudal spirit still most strongly survives, and is marked by many excesses utterly repugnant to the feeling and customs of the times, the earliest attempts to establish a feudal system were quelled by the princes. In this land, where a mistress might, until recently, have her maid whipped to death for dropping a teacup, or for any other trivial offence, real or imagined, where again it was taken for granted that "A Count carbonadoes His ignorant serfs with the knout," feudalism, once instituted, deepened its hold with the progress of years. While there was no law for the lower classes, save that dictated by the caprice of their masters, there were special exemptions and priveleges for the noble and wealthy. The Russian lords pay no taxes, and they retain, in almost undiminished force, that power to abuse, insult, and destroy the peasantry which was possessed by the _ancienne noblesse_ of France before the Revolution. Mr. Morley Roberts, in one of his Russian historical sketches, relates that not long ago a noble threw a Hebrew into a dungeon for an offence, and a week later asked his jäger what had become of him. "Oh," said the fellow with a laugh, "he made so much noise that I shot him." The state of Bohemia from the ninth to the fourteenth century shows to what deplorable depths a race may sink under an unrestrained and licentious feudalism. The Bohemian nobles practically abolished the marriage laws, and in addition to oppressing their dependents, frequently sold them into slavery. When St. Adalbert endeavoured to effect a reformation, he found every impediment put in his way, and his wishes openly defied. He had a horror of bloodshed, and preached the hatefulness of murder. By way of response, a man, whose wife had been put in a nunnery to save her from his brutality, was dragged out and butchered in the streets. Adalbert had to wait long before he could influence these men who, secure in their castles, could indulge their rapacity without fear of punishment. Reforms, effected in the tenth century, however, were not permanent, and in the twelfth century the nobles had succeeded in converting the local assembly, with its power of appointing judges, to their own uses. Mr. Edmund Maurice, in his history of Bohemia, relates that the nobles began to secure the judgeships for themselves, and then sold or bequeathed the offices to heirs. They thus made the appointments a means of tyranny and a source of profit, and with the money acquired purchased the lands of freemen. Others, owing to the unpopularity of the local tribunals, strengthened the power of their own feudal courts, and again reduced their dependents to abject slavery. "The coolness," says Mr. Maurice, "with which many of the grants of land transferred workmen of various kinds as mere appendages of fields and fishponds, is in itself a proof of the degraded position to which the peasant class had been reduced; and the fact that military service seemed one of the few means of escaping from serfdom, led the peasants to favour those wars which in the end increased their misery." Eventually King Wenceslas, famed in ballad, and still more famed in Bohemian history, came to the rescue, and ordained "that no baron or noble of the land shall have power in the city of Brünn, or shall do any violence in it, or shall detain anyone, without the license and proclamation of the judge of the city." The wide survey we have taken enables a fair estimate to be made of the state of the law in Europe when the castle was the court of justice, and the baron was the judge. England alone of all Europeon countries seems to have been able to place a check upon the more flagrant abuses, and in later times of reform to have succeeded, while abolishing what was essentially evil in the system, in retaining whatever of it was of worth. Whether there be still laws too deeply impressed with feudal ideas for modern acceptance is a question for legislators to consider. The Manor and Manor Law. BY ENGLAND HOWLETT. Everything relating to the manor reminds us forcibly of the baron of olden days, with his little territory, in which he was practically a king. Estates in copyhold are essentially distinct both in their origin and in their nature from those of freehold estates. Copyhold lands are holden by _copy_ of court roll, that is to say, the muniments of the title to such lands are _copies_ of the roll or book in which an account is kept of the proceedings in the _court_ of the manor to which the lands belong. For it must be remembered that all copyhold lands belong to and are parcel of some manor. An estate in copyhold is not a freehold; but, according to construction of law, merely an estate _at the will of the lord_ of the manor, at whose will copyhold estates are expressed to be holden. Copyholds are also said to be holden _according to the custom_ of the manor to which they belong, for custom is of course the life and being of copyholds. We must remember that in former days, a baron, or great lord, becoming possessed of a large tract of land, granted part of it to freemen for estates in fee simple. Part of the land he reserved to himself, and this formed the demesnes of the manor, properly so called: other parts of the land he granted out to his villeins, or slaves, permitting them, as an act of pure grace and favour, to enjoy such lands at his pleasure; but sometimes enjoining, in return for such favour, the performance of certain agricultural services, such, for instance, as ploughing the demesne, carting the manure, and other such servile work. The lands remaining after this parcelling out, generally the poorest, formed the waste lands of the manor, over which rights of commons were enjoyed by the tenants. In this way arose a manor, of which it will be seen the tenants formed two classes, the freeholders and the villeins. Now for each of these classes a separate court was held--for the freeholders a Court Baron; for the villeins another called a Customary Court. In the former court the suitors were the judges; in the latter the lord only, or his steward. In some manors the villeins were allowed to have life interests, but these grants were not extended so as to admit any of their children. Hence arose copyholds for life. Again, in other manors a much greater degree of liberality was shown by the lords; and on the death of a tenant, the lord permitted his eldest son, or indeed sometimes all his sons, or sometimes the youngest only, and afterwards other relations to succeed him by way of heirship; for which privilege, however, the payment of a fine was usually required on the admittance of the heir to the tenancy. Frequently it happened that the course of descent of estates of freehold was chosen as the model for such inheritances; but in many cases dispositions of the most capricious kind were adopted by the lord of the manor, and in course of time actually became the custom of the manor. And thus it was that copyholds of inheritance arose. Again, if a villein tenant wished to part with his own parcel of land to some other of his fellows, the lord would allow him to _surrender_ or yield up again the land, and then, on the payment of a fine, would indulgently _admit_ as his tenant, on the same terms, the other, to whose use and in whose favour the surrender had been made. Thus arose the method now prevalent at the present day, of conveying copyholds by _surrender_ into the hands of the lord of the manor to the use of the purchaser, and the subsequent admittance of the latter. By long custom and continued indulgence that which at first was a pure favour gradually grew up into a right, and thus it came to pass that the will of the lord, which had of course originated the custom, came at last to be controlled by it.[4] The rise of the copyholder from a state of uncertainty to certainty of tenure appears to have been very gradual. Britton, who wrote in the reign of Edward I., thus describes this tenure under the name of Villeinage. "Villeinage is to hold part of the demesnes of any lord entrusted to hold at his will by villein services to improve for the advantage of the lord." And he further adds that "In manors of ancient demesne there were pure villeins of blood and of tenure, who might be ousted of their tenements at the will of their lord." In the reign of Edward III. a case occured in which the entry of a lord on his copyholder was adjudged lawful, _because he did not do his services_, by which he broke the custom of the manor, which seems to show that even at that time the lord could not have ejected his tenant without a cause. And later, in the reign of Edward IV., the judges gave to copyholders a certainty of tenure by allowing them an action of trespass on ejectment by their lords without just cause. "Now," says Sir Edward Coke, "copyholders stand upon a sure ground; now they weigh not their lord's displeasure; they shake not at every sudden blast of wind; they eat, drink, and sleep securely; only having a special care of the main chance, namely, to perform carefully what duties and services soever their tenure doth exact and custom doth require; then let lord frown, the copyholder cares not, knowing himself safe." In the present day a copyholder has as good a title as a freeholder; in some respects a better; for all the transactions relating to the conveyance of copyholds are entered on the court rolls of the manor, and thus a record is preserved of the title of all the tenants. Since the passing of the statute of _Quia Emptores_, 18 Edward I., it has not been lawful to create a tenure of an estate in fee simple; so that every manor bears date at least as far back as that reign; to this rule the few seignories, which may have been subsequently created by the king's tenants in capite, form the only exception. The name "manor" is of Norman origin, but the estate to which it was given existed, in its essential character, long before the Conquest; it received a new name as the shire also did, but neither the one nor the other was created by this change. The local jurisdiction of the thegns who had grants of sac and soc, or who exercised judicial functions amongst their free neighbours, were identical with the manorial jurisdictions of the new owners. Although long continued custom has now rendered copyholders quite independent of the will of the lords, yet all copyholds, properly so called, are still expressly stated, in the court rolls of manors, to be holden at the will of the lord; and, more than this, estates in copyholds are still liable to some of the incidents of mere estates at will. In ancient times the law laid great stress on the feudal possession or seisin of lands, and this possession could only be had by the holder of an estate of freehold, that is, an estate sufficiently important to belong to a free man. Now, as we have seen, copyholders in ancient times belonged to the class of villeins or bondsmen, and held, at the will of the lord, lands of which the lord himself was alone feudally possessed. The lands held by the copyholders still remained part and parcel of the lord's manor; and the freehold of these lands still continued vested in the lord; and this is the case at the present day with regard to all copyholds. The lord of the manor is actually seised of all the lands in the possession of his copyhold tenants. The lord, having the legal fee simple in the copyhold lands comprised in his manor, possesses all the rights incident to such an estate, controlled only by the custom of the manor, which is now the tenant's safeguard. Thus he possesses a right to all the mines and minerals under the land, and also to all timber growing on the surface, and this even though the timber may have been planted by the tenant. However, it must be borne in mind that these rights are somewhat interfered with by the rights which long continued custom has given to the tenants, for the lord cannot come upon the lands to open his mines, or to cut his timber, without the copyholder's leave. A copyholder cannot commit any waste, either voluntary, by opening mines, cutting down timber or pulling down buildings; or permissive, by neglecting to repair. For the land, with all that is under it or upon it, belongs to the lord of the manor; the tenant has nothing but a customary right to enjoy the occupation; and if he should in any way exceed this right, a cause of forfeiture to his lord would at once accrue.[5] By the customs of manors, on every change of tenancy, whether by death, sale, or otherwise, fines of more or less amount become payable to the lord. By the customs of some manors the fine payable was anciently arbitrary; but now in modern times, fines, even when arbitrary by custom, are restrained to two years' improved value of the land after deducting quit rents. In some manors a fine is due on the change of the lord; but in this case the change must always be by act of God, and not by any act of the party. The tenure of an estate in copyholds involves an oath of fealty from the tenant, and together also with suit to the customary court of the manor. Another incident of the tenure, and this sometimes a very profitable one, is the escheat to the lord on failure of heirs. Before the abolition of forfeiture for treason and felony, the lord of a copyholder had a great advantage over the lord of a freeholder in this respect, that, whilst freehold lands in fee simple were forfeited to the crown by the treason of the tenant, the copyholds of a traitor escheated to the lord of the manor of which they were held. One of the most curious incidents of the tenure is the right of the lord, on the death of a tenant, to seize the tenant's best beast, horse, or other chattel under the name of a heriot. Now it would appear that heriots were introduced into England by the Danes. The heriot of a military tenant was his arms and habiliments of war, which belonged to the lord for the purpose of equipping his successor. And it would seem that in analogy to this purely feudal custom, the lords of manors usually expected that the best beast or other chattel of each tenant, whether he were a freeman or a villein, should on his death be left to them. In old wills of copyholders we constantly find this legacy to the lord of the manor the first bequest mentioned: in fact the tenant really making a bounty of what was actually an obligation. In cases where the tenant died intestate the heriot of the lord was taken in the first place out of his effects, unless indeed the lord seized the whole of the goods, which not unfrequently happened in days before custom had so completely controlled the rights of the lord, and at the same time protected the interests of the tenant. Heriots survive to this day in many manors, a true badge of the ancient servility of the tenure. Now, however, the right of the lord is confined to such a chattel as the custom of the manor, grown into a law, will permit him to take; and in most cases the heriot consists not of a chattel at all, but merely of a money payment. The mode in which copyhold land is transferred from one person to another still retains much of the primitive simplicity of bygone ages. The copyholder personally surrenders the lands into the hands of the lord, generally through his steward, and this surrender is evidenced by the delivery of some article varying according to the custom of the particular manor: in some manors the surrender is effected by the delivery of a rod, in others of a straw, and again in others by a glove. The surrender having been duly effected, the purchaser is admitted, and the various documents used are all entered upon the court rolls of the manor. The steward is the person who makes the entries on the court rolls, and they are kept in his custody, but subject however to the right of the tenants to inspect them. The steward also usually presides at the copyhold courts of the manor. A special custom is required to entitle the wife of a copyholder to any interest in her husband's lands on his death intestate. Where such a custom does exist the wife's interest is termed her _freebench_, and it consists generally of a life interest in one-third part of the lands of which the husband died possessed. Freebench in most manors differs from the ancient right of dower in this most important particular, that whilst the widow could claim her dower out of all the freehold lands which her husband actually possessed at any time during the marriage, the right to freebench does not in general attach until the actual death of the husband, and of course may be defeated by a devise of lands by the husband's will. From this it will be seen that freebench is no impediment to free alienation by the husband of his copyholds without any consent on the part of his wife. To this general rule, however, the manor of Cheltenham forms an important exception; for by the custom of this manor the widow's freebench attaches in the same way as the ancient right of dower did on all the land of copyhold tenure, of which the husband at any time during the marriage had been possessed. Centuries have robbed the manor of much of its importance; most of the honour and prestige has decayed which once surrounded the lord, his power has become controlled by long continued custom, so that the copyhold tenants are practically independent of him, and have as good a title to their lands as freeholders. Little remains beyond the most prominent of the old formalities, which at one time gave dignity and importance to the lord of the manor and his court. Most of the dealings with copyhold land are now effected out of court, and although the courts are still held at the customary periods, they are for the most part an empty formality, their glamour gone, yet still possessing an especial interest of their own as evidence of the surviving of ancient customs, which have practically remained unchanged through the roll of centuries. Ancient Tenures. BY ENGLAND HOWLETT. Practically all the landed property in England is, by the policy of our laws, supposed to be granted by, dependent upon, and holden of some superior lord, in consideration of certain services to be rendered to such lord by the possessor of this property, and the terms or manner of their possession is therefore called a _tenure_. Thus all the land in the kingdom is supposed to be held, mediately or immediately, of the sovereign who is consequently styled the lord or lady _paramount_. All tenures being thus derived, or supposed to be derived, from the sovereign, those who held directly under such sovereign, and in right of the crown and dignity, were called tenants _in capite_, or _in chief_, which was the most honourable species of tenure, although at the same time it subjected the tenants to far greater and more burthensome services than the inferior tenures did, and this distinction ran through all the different sorts of tenure. William I., and other feudal sovereigns, although they made large and numerous grants of land, always reserved a rent or certain annual payments, which were collected by the sheriffs of the counties in which the lands lay, to show that they still retained the _dominium directum_ in themselves. With our ancestors the most honourable and highly esteemed species of tenure was that by knight service, and this was purely and entirely a military tenure, being, in fact, the result of the feudal establishment in England. Now to make a tenure by knight service, a determinate quantity of land was necessary, which was called a knight's fee, _feodum militare_; the measure of which in 3 Edward I., was estimated at twelve ploughlands, and its value (although it varied with the times) in the reigns of Edward I. and Edward II. was stated at £20 per annum. The knight who held this proportion of land was bound to attend his lord to the wars for forty days in every year, if called upon so to do, which attendance was his rent or service for the land he claimed to hold. If, however, he held only half a knight's fee, he was only bound to attend his lord twenty days, and so on in proportion. This tenure of knight service drew with it several consequences as inseparably incident to the tenure in chivalry, and one of the most profitable, and, at the same time, arbitrary of these was marriage. This incident called marriage was the right which the lord possessed of disposing of his infant wards in matrimony, at their peril of forfeiting to him, in case of their refusing a suitable match, a sum of money equal to the value of the marriage; that is, what the suitor was willing to pay down to the lord as the price of marrying his ward; and double the market value was to be forfeited, if the ward presumed to marry without the consent of the lord. The personal attendance rendered necessary by knight service growing troublesome and inconvenient in many respects, the tenants found means of compounding for it; first, by sending others in their stead, and then in process of time making a pecuniary satisfaction to the lord in lieu of it. This pecuniary satisfaction at last came to be levied by assessments at so much for every knight's fee; the first time this appears to have been done was in 5 Henry II., on account of his expedition to Toulouse; but it soon became so universal that personal attendance fell quite into disuse. From this period we find, from our ancient histories, that when the kings went to war, they levied scutages on their tenants, that is, on all the landowners of the Kingdom, to defray their expenses, and to pay for the hire of troops. These assessments, in the time of Henry II., seem to have been made in a most arbitrary manner, and entirely at the king's will and pleasure. The prerogative became, indeed, abused to such an extent, that at last it became a matter of national clamour, and King John was obliged to consent by his _Magna Carta_, that no scutage should be imposed without the consent of Parliament. But this clause was omitted in the Charter of Henry III., where we only find that scutages, or escuage, should be taken as they were used to be taken in the time of Henry II.; that is, in a reasonable and moderate manner. Yet afterwards, by statute 25 Edward I., and many subsequent statutes, it was again provided, that the king should take no aids or tasks but by the common assent of the realm; hence it was held that scutage, or escuage, could not be levied except with the consent of Parliament; such scutages being indeed the groundwork of all succeeding subsidies, and the land tax of later times. It will easily be seen that with the degenerating of knight service, or personal military duty into a pecuniary assessment, all the advantages were destroyed, and nothing in fact remained but the hardships. Instead of having a national militia, composed of barons, knights, and gentlemen, bound by their interests and their honour to defend the king and country, the whole system of military tenures tended to nothing else but a wretched means of raising money to pay an army of occasional mercenaries. At length the military tenures, with all their heavy appendages were destroyed at one blow by statute, 12 Charles II., C. 24, which enacts "that the courts of wards and liveries, and all wardships, liveries, primer seisins, and ousterlemains, values and forfeitures of marriage, by reason of any tenure of the king or others, be totally taken away. And that all fines for alienation, tenures by homage, knight service, and escuage, and also aids for marrying the daughter, or knighting the son, and all tenures of the king _in capite_, be likewise taken away. And that all sorts of tenures, held of the king or others, be turned into free and common socage; save only tenures in frank almoign, copyholds, and the honorary services of grand serjeanty." Another ancient tenure was that by _Grand Serjeanty_, whereby the tenant was bound, instead of serving the king generally in the wars, to do some special honorary service for the king in person; as to carry his banner, his sword, or the like; or to be his butler, champion, or other officer at his coronation. Tenure by _cornage_ was a species of grand serjeanty, being a grant of land upon condition that the tenant was to wind a horn when the Scots or other enemies entered the land, in order to warn the king's subjects. The tenure of petit serjeanty bears a great resemblance to the tenure of grand serjeanty; for as the one is a personal service, so the other is a rent or render, both tending to some purpose relative to the king's person. Petit serjeanty as defined by Littleton, consists in holding lands of the king, by service of rendering to him annually some small implement of war, as a bow, a sword, a lance, an arrow, or the like. This, of course, is but socage in effect, for it is no personal service, but a certain rent. The tenure by which the grants to the Duke of Marlborough and the Duke of Wellington, for their great military services to the country, are held, are of this kind, each rendering a small flag or ensign annually, which is deposited in Windsor Castle. Bury House (New Forest), the property of Sir Charles Mill, Bart., is held by the tenure of presenting the king whenever he enters the New Forest with a brace of milk-white greyhounds. A breed of these dogs is preserved by the family in readiness. King George III. received dogs in recognition of this tenure in 1789, and the incident is the subject of one of Lawrence's pictures. In Beckwith's edition of Blount's "Fragmenta Antiquitatis," the following tenure is inserted from the "Black Book of Hereford."--"The tenants at Hampton Bishop, in the county of Hereford, were to get yearly six horse loads of rods or wattels, in the Hay Wood, near Hereford, and bring them to Hereford to make booths (or hurdles to pen sheep in) at the fair when they should be required; and for every load of the said rods they were to be allowed a halfpenny at the fairs." This tenure would appear to relate to one particular fair only, and not to all the fairs formerly held at Hereford. The particular fair is supposed to have been the one beginning on May 19th, and commonly called the nine-days' fair, from the circumstance of its continuing for that length of time. From time immemorial this fair was proclaimed, with certain formalities, by the Bishop of Hereford's bailiff, or his deputy, the tolls of the fair belonging to one or both of these officers. During the continuance of the fair, the Bishop's bailiff superseded the Mayor of Hereford as acting magistrate, the fair being held in a street opposite the Bishop's palace. Brienston, in Dorsetshire, was held in grand serjeanty by a curious jocular tenure, viz.:--by finding a man to go before the king's army for forty days when he should make war in Scotland (some records say in Wales) bareheaded and bare-footed, in his shirt, and linen drawers, holding in one hand a bow, and in the other an arrow without feathers.[6] The Dukes of Athol hold the Blair Athol estate by the tenure of presenting a white rose to the sovereign whenever he visits them there. Land was frequently held by the tenure of protecting the church property in times of war. Scott tells us how the Bishop of Durham gave lands to the Danish Count, Witikind, to be held by this tenure. The story is not true, but the tenure is; Broad lands he gave him on Tyne and Wear, To be held of the Church by bridle and spear; Part of Monkwearmouth, of Tynedale part, To better his will and soften his heart. _Harold the Dauntless._ Canto i., IV. The tenure of ancient demesne exists in those manors, and in those only, which belonged to the crown in the reigns of Edward the Confessor and William the Conqueror, and in Domesday Book are called _Terroe Regis Edwardi_. The tenants are freeholders and possessed certain privileges, the chief of which was a right to sue and be sued only in their lord's court. Another kind of ancient tenure, still subsisting, is the tenure of frankalmoign, or free alms, and this is the tenure by which the lands of the church are for the most part held. This tenure is expressly excepted from the statute, 12 Charles II., by which the other ancient tenures were destroyed. It has no peculiar incidents, the tenants not being bound even to do fealty to the lords, because, as Littleton says, the prayers and other divine services of the tenants are better for the lords than any doing of fealty. As the church is a body having perpetual existence, there is, moreover, no chance of any escheat. By this tenure almost all the monasteries and religious houses held their lands. It was an old Saxon tenure; and continued under the Norman revolution, through the great respect that was shewn to religion and religious men in ancient times. This too, no doubt, is the reason that tenants in frankalmoign were discharged from all other services except the repairing of highways, building castles, and repelling invasions; just in fact as the Druids, among the Ancient Britons, had similar privileges. The tenure being purely spiritual, the lord had no remedy for neglect by distress or otherwise, but merely a complaint to the ordinary to correct it. One of the most interesting tenures is that of Borough English. There are a great number of manors throughout the country in which this tenure prevails; they are not however confined to one county or one district. Borough English is the right of succession of the youngest son, instead of the eldest, to real estate in case of intestacy, but the custom is not always the same; it differs in different manors. In some it is confined to the sons only, and if there should be no son the estate is shared equally amongst all the daughters. In other manors, principally Sussex, the youngest daughter inherits. Again, there are cases to be found where if there be no children, the youngest brother inherits, and in others it goes according to the rules of the common law. There are, moreover, places in which the copyhold land only is Borough English, while the freehold is held by the ordinary tenure, and in others the freehold and copyhold alike follow the Borough English custom. The area over which this Borough English tenure prevails is an exceedingly wide one. It is found in nearly every part of Europe, except perhaps Italy and Spain--in Germany, Hungary, the Ural mountains, and in Asia as far as the borders of China. Many attempts have been made to explain the custom. Littleton suggests that the youngest son, by reason of his tender age, is not so capable as the rest of his brethren to help himself. It is possible the origin may have come to us from the Tartars, amongst whom this custom of descent to the youngest son also prevails. That nation is composed almost entirely of shepherds and herdsmen, and the elder sons, as soon as they are capable of leading a pastoral life, migrate from their father with a certain allotment of cattle, and go to seek a new habitation. And thus we find that, among many other northern nations, it was the custom for all the sons, but one, to migrate from the father, which one became his heir. The tenure of Gavelkind prevails principally in the County of Kent. It is universally known what struggles the Kentish men made to preserve their ancient liberties, and with how much success those struggles were attended. It seems fair therefore, to conclude that this custom was a part of those liberties, agreeably to the general opinion, that Gavelkind, before the Norman Conquest, was the general custom of the realm. The distinguishing properties of this tenure are various; some of the principal are these: 1. The tenant is of age sufficient to alienate his estate by feoffment at the age of fifteen. 2. There never was any escheat in case of an attainder and execution for felony; their maxim being "the father to the bough, the son to the plough." 3. In most places, the tenant had the power of devising his lands by will, before the statute for that purpose was made. 4. The lands descend not to the eldest, youngest, or any one son only, but to all the sons together. This last incident is, of course, the most important affecting the tenure, and not only this, but also the most interesting, in that, like Borough English, it prevails to the present day. True it is that certain lands in Kent, once Gavelkind, have been made descendable according to the rules of the common law, by special statutes; however, these statutes only affect a very small portion of the county. Gavelkind and Borough English, being customs already acknowledged by the law, need not be specially pleaded; it is sufficient to show that the lands are affected and regulated by the same; but all other private customs must be pleaded. The ancient Barons of Buccleuch, both from feudal splendour and from their frontier situation, retained in their household at Branksome a number of gentlemen of their own name, who held lands from their chief for the military service of watching and guarding his castle. Nine and twenty knights of fame Hung their shields in Branksome Hall Nine and twenty squires of name Brought them their steeds from bower to stall. Nine and twenty yeomen tall Waited duteous on them all. They were all knights of metal true, Kinsmen to the bold Buccleuch. "Lay of the Last Minstrel."--Scott. Canto i., III. Laws of the Forest. BY EDWARD PEACOCK, F.S.A. The subject of "The Laws of the Forest" and of the wild things which have their homes therein, both in our own island and elsewhere, has been a matter of discussion for ages; but very little has been written thereon which is of much service, except to legal specialists. It is, indeed, one of those difficult subjects which is hardly possible to make interesting to those whose thoughts range in the present rather than in the past. There can be no doubt whatever, that from the birth of the human race, long ere we can trace our history back in written documents, the killing of animals has been a sport as well as a means of procuring food; both these may be considered, whatever certain dreamers may aver to the contrary, as among the necessities of human life. We cannot be quite certain whether the stone axes, hammers, and spears, of which we see such numbers in our museums, were wrought in anticipation of the delights of the chase, or whether they were simply, what may be called, the tools of the primæval butcher; but, knowing as we do, the contempt in which every man at the present hour is held, who having wealth and leisure enough to indulge in what is called "sport," abstains from amusing himself in some form of slaughter, we may well believe that our palæolithic predecessors, however empty the larder might be, would try to impose on themselves that what they did was done to amuse themselves, as a manly exercise, not a stern necessity. In confirmation of this, we must call mind that there have been found several weapons with the reindeer and other animals carved, or perhaps it would be better to say scratched, upon them with a high degree of pictorial excellence; we may therefore infer that amusement, as well as appetite, occupied the minds of those early artists, who so deftly represented the creatures on whom they waged war. Had they merely been regarded as things to be eaten, such as the tinned meats we now buy from the provision merchant, they would never have been held worthy of artistic treatment. One of the oldest proverbs that have come down to us, if indeed it be not the very oldest, is that wherein we are told something "Of Nimrod the founder Of empire and chace, Who made the woods wonder And quake for their race." That he was the first of the great hunters is a dream of Lord Byron's, not in any way countenanced by Holy Scriptures, or any of the old authorities. We are simply told in Genesis that Nimrod was a son of Cush, and that "He began to be a mighty one in the earth. He was a mighty hunter before the Lord. Wherefore it is said, even as Nimrod the mighty hunter before the Lord."[7] The precise meaning of this has been questioned. It most likely signifies that Nimrod was the first person who organised those mighty hunting expeditions, which were so famous in the days of the great Oriental despotisms. From these tyrants it is probable that the Forest Laws of Mediæval Europe had their origin. In the sculptures that have been unearthed in the dead cities of the East, hunting scenes of great magnificence are not uncommon, nor are they unknown in Egypt, where, however, the capture of fish was the more common sport, as the Nile may be said to have been at every man's door. That Forest Laws of some kind or other existed in these far-off times may be accepted as certain, and we may take it for granted, when we call to mind the general legislation then in force, that they were terribly cruel according to our modern ideas, but we can at present only arrive at these conclusions by inference. When Rome became the mistress of the world, we know that in many parts of the empire the wild creatures were rigorously preserved, but we do not think that they were often hunted by their owners. Such was rather the duty of freed men and slaves. Those which were fit for food were preserved as delicacies for the table, but the larger beasts, such as the lion, the tiger, the bear, the lynx, and perhaps even the wild cat, were reserved for the sports of the amphitheatre. Amphitheatres were much more common than is usually supposed. In a few places their remains exist still, but most of them have perished, serving as quarries for stone during the whole of the Middle Ages, and in Mohammedan lands to a much more modern period, perhaps even to the present day. We are not sure that any list of them has been preserved, or could now be compiled, but they were so numerous throughout the empire that the possession of wild beasts on the immense estates of the Roman patricians must have been a great source of wealth to their owners. The Roman nobles did not care for field-sports as the northern nations did. A feeling or instinct of this kind dies hard. At the present day the Italian cares much less for such amusements than the Englishman, the German, or the inhabitants of northern France. Virgil, who represents more fully than any other heathen poet, the feelings of the better sort of Romans of his own time, says, attributing the words to another, but evidently speaking his own thoughts:-- "Above aught else let the woods be dear to me."[8] This was, however, not for the sake of the slaughter that might be perpetrated therein, but on account of their many beauties and the grateful shade which they afforded. Virgil was in many respects a modern in his love of scenery, though we doubt whether snow-clad mountains and craggy heights would have appealed to him as they have done to us during the short time that has elapsed since we have been able to see them without discomfort. When the Roman Empire was in the zenith of its glory, there does not seem to have been in Gaul or Britain any vast stretches of forest. The country was no doubt well wooded when we compare it with the France or England of to-day, for during the last two hundred years trees have been wantonly destroyed, to the great injury of agriculture as well as local beauty, for the sake of supplying land-owners with ready money. Long continued wars have also desolated the national forests for the sake of supplying timber to the shipbuilder. After the various invasions which desolated so many parts of the Roman Empire, large portions of Gaul reverted to a state of nature. Towns and villages were burned, their inhabitants slaughtered, or scattered far away from their homes. A picturesque account of what followed is given in Montalembert's _Les Moines d'Occident_, from which we gather that much of Gaul had reverted to a state of nature, such as it was in ere civilisation had made its first incursions on the untamed wilderness. The lives of the early Gallic saints, found scattered through the many volumes of the _Acta Sanctorum_, bear the like testimony, as do many parts of the old romances, the scenes of which so often lie in the trackless forest. In England, things may not have been quite so woeful. The population, we believe, never became so scanty as in Eastern Gaul. It is still a matter of controversy whether here the native folk were slaughtered or driven into the mountains of Wales, or whether the greater part of them were made bondmen. We hold the latter opinion, but the whole subject is beset with great difficulties. However this may be, it is quite certain that the population was very much reduced; many wide districts, which had been carefully cultivated by the Roman settlers, or natives who had adopted their manners, were laid waste. The picturesque villas, with their adjoining peasant homesteads, were all gone--burnt with fire,--and woodland, scrub, or mere sandy desolation supplied the place of the adjoining pleasure-grounds, farms, and pastures. One of these desolate tracts named Andredsweald stretched from Kent to the Hampshire Downs, at some points almost touching the Thames. Another great forest appears to have extended from a point a little to the north of London, till it reached the forests of Rockingham and Sherwood. The great level of Hatfield Chace seems to have been a spur of this, if not so, they were but separated by a narrow stretch of cultivated land from the forest itself. Deer were plentiful on Hatfield Chace until the reign of Charles the First. They even continued to exist longer on the eastern side of the Trent, on a long and narrow belt of scrub which extended from Morton, near Gainsburgh, to the point where the Trent falls into the Humber. An ancestor of our own, who died as recently as 1758, was accustomed to hunt them there. As well as these larger forests, the whole land was dotted over with places once the sites of Roman dwellings, but which now had become either mere wastes, or woodlands covered with tall timber trees, interspersed with the elder, the nut, the thorn, the birch, the maple, and the alder. In some places the yew and the holly were abundant also, but they seem to have flourished only in widely separated patches. The Saxon and the Danish conquests came about gradually, and the country was in so disturbed a state that it was impossible for rigid Forest Laws to be enacted, or even if written on parchment to be put in force. Besides this, the Saxon and Danish leaders were of a different character from their Norman successors. A vague memory still haunted them of the free life once lived in Germany and Scandinavia; a life as different as can well be imagined from that of modern democracy, but still one in which every thrall, bondman, and slave had certain well ascertained rights, which were under the protection of the State and the Church. Thus it came to pass that there were in almost every district stretches of forest land, which were, in a great degree, open to the people, where men could fell timber for their dwellings and slaughter animals for food; though even before the Norman Conquest had come as a shadow on the liberties of Englishmen, there is reason for thinking that forestal-rights had become, in name at least, a privilege of the king and his great theïgns. The Norman Forest Law was of a similar character to that which William's forefathers had enforced in Normandy. The country, which we have for ages known as France, was, in earlier times, broken up into many provinces, and it was only by a slow process that it became one. Each of these provinces had a Forest Law of its own. When the Normans settled in the goodly land which they called after themselves, they retained the customs which they found there. When William transferred the laws of his old duchy to his new kingdom, it could, at the first, only be by an act of favour that anyone could kill a beast of chase except himself or his retainers. This from the nature of things did not last long. William never could have intended to retain the whole of the vast territories which the victory of Senlac had given him in his own possession. He divided the kingdom among his chief tenants--tenants _in capite_,--and to these great men, with some slight exceptions, he handed over all forestal rights which existed in their domains, the king retaining to himself for his own pleasure, and as a mark of dignity, some great forests, which for ages have remained in royal hands. Notwithstanding certain Danish and Saxon charters, it has always been traditionally held that our Forest Laws come from William the First, and this is substantially true, though objections to the statement might be taken. It would not be unsafe to say that no one but the Conqueror could have enforced so drastic a regulation. As the Bishop of Oxford has so truly said, "The King made and kept good peace. The Dane-geld and the Forest-Law were not too much to pay for the escape from private war and feudal disruption."[9] It is true that William had desolated large tracts of land to make them serve him for the chase; the crime was terrible, though exaggerated by modern historians; but he had many noble qualities, so that those who had not personally suffered were willing to overlook the evil. With his son, William the Red, the Forest Laws became unbearable, and were hated by baron and villain alike. He was one of the worst kings which ever disgraced the English throne. In a deeply religious age he was wantonly opposed to all godliness. Alike the enemy of God and Man, a type and representative of all things evil, we need not wonder when he fell by an arrow in the New Forest, that men saw a visible judgment of God. To him, and to Henry the First, are commonly ascribed the ferocity of the Forest Laws. Men believed that in after time kings would have mitigated matters had it been in their power. They said, and there is much truth in the averment, that these bad laws required the support of an army of evil men to work them efficiently, and that for the ordinary court officials, or the king himself, to thwart these people would be especially dangerous. When we call to mind what have been from time to time the characters of the farmers of the taxes at Naples, and various parts of France, we cannot deny that there is much truth in the statement. Affairs reached their most evil point when Henry II. was King. It was then the custom for the royal foresters to be a complete law unto themselves, they put to death and mutilated whom they would without any trial whatever, or with but the mockery of the water-ordeal, a farce which had already been condemned by the Church, but which was very fashionable with ruffians who were anxious to secure a conviction. One of these fellows laid hold of an ecclesiastic, with the intention of extracting from him a large sum of money. Well was it for him that he was of the diocese of Lincoln, and that at that time Hugh of Avalon was its bishop. The thunders of excommunication were at once heard, the ecclesiastic escaped from the forester's clutches, and from that time forward, though much yet remained to be done, the tide turned, and the Forest Laws were administered with something more nearly approaching to justice. Trial by Jury in Old Times. BY THOMAS FROST. When we congratulate ourselves, as we are so apt to do, on the length of time the system of trial by jury has been established in England, and the safeguard it affords against attempts to strain the law to the prejudice of the accused, we are often unmindful of the fact that the institution has not always proved a safeguard when the court, acting under the influence of the Crown, endeavoured to obtain a conviction. It was only in the latter half of the sixteenth century that juries began to evince that determination not to yield their own judgment to the wishes of those in high authority, which became further developed in the course of the seventeenth. An interesting illustration of the old spirit of judges, and the new spirit of juries, is afforded by the trial of Sir Nicholas Throckmorton, in 1554, on a charge of high treason, in conspiring the death or deposition of the Queen, and the seizure by force of arms of the Tower of London. The prosecution was conducted by Serjeant Stanford and the Attorney-General, Griffin, the former leading; and it is noteworthy that both they and Chief Justice Bromley questioned the prisoner in much the same manner as is still customary in France and Belgium, striving to procure evidence that would convict him out of his own mouth. The endeavour failed, and the only criminating evidence against the prisoner was contained in the alleged confessions of Winter and Crofts, who, however, were not called as witnesses. The jury, after several hours' deliberation, returned a verdict of not guilty, upon which the Lord Chief Justice addressed them in threatening tones, saying, "Remember yourselves better. Have you considered substantially the whole evidence as it was declared and recited? The matter doth touch the Queen's highness and yourselves also. Take good heed what you do." The jury were firm, however, and the foreman replied to the remonstrance of the bench, "We have found him not guilty, agreeable to all our consciences." Then the Attorney-General rose, and addressing the court, said, "An it please you, my lords, forasmuch as it seemeth these men of the jury, which have strangely acquitted the prisoner of his treasons whereof he was indicted, will forthwith depart the court, I pray you for the Queen that they and every one of them may be bound in a recognizance of £500 a-piece, to answer to such matters as they shall be charged with in the Queen's behalf, whensoever they shall be charged or called." The court went beyond even this audacious request, for they actually committed the jury to prison! Four of them were discharged shortly afterwards, having so little moral stamina left as to make a humble confession that they had done wrong; but the remaining eight were brought before the Star Chamber and severely dealt with, three being ordered to pay a fine of £2,000 each, and the others £200 each. In the following reign, in a case in which three persons were indicted for murder, and the jury found them guilty of manslaughter only, contrary to the direction of the court, the jurors were both fined and bound in recognizances for their future "good behaviour." A decision of the Lord Chancellor, the two Chief Justices, and the Chief Baron, in the reign of James I., sets forth that when a person is found _guilty_ on indictment, the jury should not be questioned; but when a jury has acquitted a prisoner against what the court holds to be proof of guilt, they may be charged in the Star Chamber, "for their partiality in finding a manifest offender not guilty." In 1667, we find this view extended to the case of grand juries ignoring a bill on grounds which the court did not consider sufficient. Chief Justice Kelying in that year having fined a grand jury of the County of Somerset, for not finding a true bill against a man accused of murder; but, says the report, "because they were gentlemen of repute in the county, the court spared the fine." This case, and several others in which the same judge had acted in a similar manner, were brought under the notice of the House of Commons, however, and that assembly resolved "that the precedents and practice of fining or imprisoning jurors for verdicts is illegal." Notwithstanding this resolution of the House of Commons, William Penn, and another member of the Society of Friends, named Mead, being indicted at the Old Bailey for having, with other persons unknown, unlawfully and tumultuously assembled in Gracechurch Street, in the City of London, the Recorder dealt with the jury in a manner which caused the illegality of fining jurors for their verdicts to be again brought into question. The indictment set forth that Penn, by agreement with and abetment of Mead, did in the open street speak and preach to the persons there assembled, by reason whereof a great concourse of people gathered and remained a long time, in contempt of the King and the law, and to the great terror and disturbance of many of His Majesty's liege subjects. The trial took place before the Recorder, the Lord Mayor, and the Aldermen; and when witnesses had deposed that Penn had preached, and that Mead was there with him, the Recorder summed up the evidence, and the jury retired to consider their verdict. They were absent a considerable time, at length returning with the verdict that Penn was "guilty of speaking in Gracechurch Street." "Is that all?" the Recorder asked. "That is all I have in commission," replied the foreman. "You had as good say nothing," observed the Recorder, and the Lord Mayor added, "Was it not an unlawful assembly? You mean he was speaking to a tumult of people there." "My lord," returned the foreman, "that is all I have in commission." "The law of England," said the Recorder "will not allow you to part until you have given in your verdict." "We have given in our verdict," returned the jury, "and we can give in no other." "Gentlemen," said the Recorder, "you have not given in your verdict, and you had as good say nothing; therefore go and consider it once more, that we may make an end of this troublesome business." The jury then asked for pen, ink, and paper, and the request being complied with, they again retired, returning after a brief interval with their verdict in writing. They found Penn "guilty of speaking or preaching to an assembly met together in Gracechurch Street," and Mead not guilty. "Gentlemen," said the Recorder, regarding the jury angrily, "you shall not be dismissed till we have a verdict that the court will accept; and you shall be locked up, without meat, drink, fire, and tobacco. You shall not think thus to abuse the court. We will have a verdict, or you shall starve for it." Penn protested against this course, upon which the Recorder ordered the officers of the court to stop his mouth or remove him. The jury not leaving their box, the Recorder again directed them to retire and re-consider their verdict. Penn made a spirited remonstrance. "The agreement of twelve men," said he, "is a verdict in law, and such a one having been given by the jury, I require the clerk of the peace to record it, as he will answer at his peril. And if the jury bring in another verdict contradictory to this, I affirm they are perjured men in law. You are Englishmen," he added, turning to the jury, "mind your privilege; give not away your right." The court then adjourned to the following morning, when the prisoners were brought to the bar, and the jury, who had been locked up all night, were sent for. They were firm of purpose, and through their foreman persisted in their verdict. "What is this to the purpose?" demanded the Recorder, "I will have a verdict." Then addressing a juror, named Bushel, whom he had threatened on the previous day, he said, "you are a factious fellow; I will set a mark on you, and whilst I have anything to do in the city, I will have an eye on you." Penn again protested against the jury being threatened in this manner, upon which the Lord Mayor ordered that his mouth should be stopped, and that the gaoler should bring fetters and chain him to the floor; but it does not appear that this was done. The jury were again directed to retire and bring in a different verdict, and they withdrew under protest, the foreman saying, "We have given in our verdict, and all agreed to it; and if we give in another, it will be a force upon us to save our lives." According to the narrative written by Penn and Mead, and quoted in Forsyth's "History of Trial by Jury," this scene took place on Sunday morning, and the court adjourned again to the following day, when, unless they were supplied with food surreptitiously, they must have fasted since Saturday. The foreman gave in their verdict in writing, as before, to which they had severally subscribed their names. The clerk received it, but was prevented from reading it by the Recorder, who desired him to ask for a "positive verdict." "That is our verdict," said the foreman. "We have subscribed to it." "Then hearken to your verdict," said the clerk. "You say that William Penn is not guilty in manner and form as he stands indicted; you say that William Mead is not guilty in manner and form as he stands indicted; and so say you all." The jury responded affirmatively, and their names were then called over, and each juror was commanded to give his separate verdict, which they did unanimously. "I am sorry, gentlemen," the Recorder then said, "you have followed your own judgments and opinions, rather than the good and wholesome advice which was given you. God keep my life out of your hands! But for this the court fines you forty marks a man, and imprisonment till paid." Penn was about to leave the dock, but was prevented from doing so, upon which he said, "I demand my liberty, being freed by the jury." "You are in for your fines," the Lord Mayor told the prisoners. "Fines, for what?" demanded Penn. "For contempt of court," replied the Lord Mayor. "I ask," exclaimed Penn, "if it be according to the fundamental laws of England, that any Englishman should be fined or amerced but by the judgment of his peers or jury; since it expressly contradicts the fourteenth and twenty-ninth chapters of the Great Charter of England, which say, 'No freeman ought to be amerced but by the oath of good and lawful men of the vicinage.'" "Take him away," cried the Recorder. "They then," continues the narrative, "hauled the prisoners into the bail-dock, and from thence sent them to Newgate, for non-payment of their fines; and so were their jury. But the jury were afterwards discharged upon an _habeas corpus_, returnable in the Common Pleas, where their commitment was adjudged illegal." Even then, judges appear to have remained unconvinced of the illegality of the practice, or stubborn in their desire to enforce their own views or wishes upon juries; for the question was not regarded as finally settled until the decision in the Court of Common Pleas was clinched, in the same year, by a similar judgment of the Court of King's Bench. Barbarous Punishments. BY SIDNEY W. CLARKE. That the world has become more merciful as it has grown older, is a truism at once apparent to anyone who gives even a cursory glance at any of the numerous works dealing with the criminal laws of the olden time. Still the approach to the most excellent quality has been regretably and painfully slow, and it is surely a stain on the boasted enlightenment of the nineteenth century, that the century had run through nearly three-fourths of its existence before the terrible and vindictive punishment of drawing and quartering disappeared from our statute book. In most States the early laws have been of a blood-thirsty and fear-inspiring nature, but what excuse can be urged for the fact that until the fourth day of July, in the year of Grace 1870, the punishment ordained by law for the crime of high treason, was that the unfortunate offender should be drawn on a hurdle to the place of execution, there to be hanged by the neck till he be dead; that his head be severed from his body; that his body be divided into four quarters; and that his head and quarters be at the disposal of the Crown. In Blackstone's time the sentence was still more savage, or, as the great Commentator puts it, "very solemn and terrible." It was that the offender be drawn to the gallows, and not be carried or walk; "though usually," says Blackstone, "by connivance, at length ripened by humanity into law, a sledge or hurdle was allowed to preserve the offender from the extreme torment of being dragged on the ground or pavement;" that he be hanged by the neck and then cut down alive; that his entrails be taken out, and burned before his eyes, while he was still alive; that his head be cut off, his body be divided into four parts, and his head and quarters be at the King's disposal. What our tender-hearted monarchs did with the quivering pieces of flesh let the stones of Temple Bar, the City Gates, and the Tower bear witness. Here are a couple of extracts from that perennial fountain of information, the diary of Mr. Samuel Pepys. Under date of October 13th, 1660, he writes, "I went out to Charing Cross to see Major-General Harrison," one of the regicides, "hanged, drawn, and quartered, which was done there, _he looking as cheerful as any man could do in that condition_." Note the grim humour of the words in italics. "He was presently cut down, and his head and heart shown to the people, at which there was great shouts of joy." Again, on October 20th, in the same year:--"This afternoon going through London and calling at Crowe's, the upholsterer's, in St. Bartholomew's, I saw the limbs of some of our new traytors set upon Aldersgate, which was a sad sight to see; and a bloody week this and the last have been, there being ten hanged, drawn, and quartered." It will be observed that the masculine gender is used in the foregoing sentences for high treason; for, if the offender was a woman, the law with a delicacy (!) one would hardly have expected, recognised that "the decency due to the sex forbids the exposing and publicly mutilating their bodies;" so a woman was simply to be drawn to the gallows, and there burned alive. And these punishments for treason Sir Edward Coke attempted to justify on Scriptural grounds, adding "it is punishment undoubtedly just, for our liege lord the King is lord of every one of our members, and they have severally conspired against him, and should each one suffer." Evidently justice has not always spelt humanity. Another of the horrible punishments decreed by English law was that of boiling to death, which in the reign of Henry VIII. was inflicted for poisoning, and recalls the most cruel tortures of China and the Orient, where slicing to death and impalement alive are or were common forms of punishment. The awful fate of being boiled alive was specially devised for the benefit of John Roose, a cook, who had been convicted of throwing poison into a pot of broth intended for the family of the Bishop of Rochester and for the poor of the Parish; in 1542, Margaret Davey suffered the same lingering death at Smithfield. So fearful were our ancestors of poison, that in Scotland, in 1601, Thomas Bellie, a burgess of Brechin, and his son were banished for life by the High Court of Justiciary, for the heinous offence of poisoning a couple of troublesome hens belonging to a neighbour. Even the laws of Draco, said on account of their severity to have been written not in ink but in blood, can scarcely compete with these examples of British barbarity. Among the Romans strangulation, precipitation from a rocky height (a mode of carrying out the death sentence still found amongst savage tribes), and lashing to death were forms of punishment. Soldiers guilty of military offences had to run the gauntlet. Upon a given signal all the soldiers of the legion to which the offender belonged fell upon him with sticks and stones, and generally killed him on the spot. If, however, he succeeded in making his escape, he was thenceforth an exile from his native country. Offending slaves were first scourged and then crucified. They were compelled to carry the cross to the place of execution, and after being suspended were left to perish by slow degrees. Crucifixion was abolished throughout the Roman Empire by Constantine, out of reverence to the sacred symbol. Other cruel punishments were burning alive, exposure to wild animals, and condemnation to fight as gladiators in the arena for the amusement of the citizens. The second of these modes of death, for death was the invariable result, was the one usually meted out to the early Christians--"If the Tiber overflows its banks; if there be a famine or plague; if there be a cold, a dry, or a scorching season; if any public calamity overtakes us; the universal cry of the people is--"To the lion with the Christians _Christiani ad leonem_!" Parricide was punished in a strange manner. The criminal, after being scourged, was tied or sewed up in a leather bag, with a dog, a cock, a viper, and an ape to keep him company, and so cast into the sea. The Egyptians punished the same offence by sticking the prisoner all over with pointed reeds, and then throwing him upon a fire of burning thorns, where he lay till he was consumed. With most nations the _Lex talionis_, or punishment of retaliation--an eye for an eye, a limb for a limb--has found a place in the penal system. It was not, indeed, always carried out to its logical conclusion, but rather became the subject of many subtle distinctions. Among the Athenians, Solon decreed that whoever put out the eye of a one-eyed person should for so doing lose both his own. But what, it was asked, should be done where a one-eyed man happened to put out one of his neighbour's eyes? Should he lose his only eye by way of retaliation? If so, he would then be quite blind, and would so suffer a greater injury than he had caused. The law of the Jews and Egyptians compelled anyone, who without lawful excuse was found with a deadly poison in his possession, to himself swallow the poison. An instance of a kind of _lex talionis_ in our own country is found in the reign of Edward I., when incendiaries were burnt to death. Another example is that, from the reign of Henry VIII. to that of George IV., to strike a blow and draw blood within the precincts of the King's palace, entailed on the offender the loss of his right hand. Here are some of the regulations prescribed by the statute 33 Henry VIII., chapter 12, for the infliction of the punishment:-- "viii. And for the further declaration of the solemn and due circumstance of the execution appertaining and of long time used and accustomed, to and for such malicious strikings, by reason whereof blood is, hath been, or hereafter shall be shed against the King's peace. It is therefore enacted by the authority aforesaid, that the Sergeant or Chief Surgeon for the time being, or his deputy of the King's household, his heirs and successors, shall be ready at the time and place of execution, as shall be appointed as is aforesaid, to sear the stump when the hand is stricken off. "ix. And the Sergeant of the Pantry shall be also then and there ready to give bread to the party that shall have his hand so stricken off. "x. And the Sergeant of the Cellar shall also be then and there ready with a pot of red wine to give the same party drink after his hand is so stricken off and the stump seared. "xi. And the Sergeant of the Ewry shall also be then and there ready with cloths sufficient for the Surgeon to occupy about the same execution. "xii. And the Yeoman of the Chandry shall also be then and there, and have in readiness seared cloths sufficient for the Surgeon to occupy about the same execution. "xiii. And the Master Cook shall be also then and there ready, and shall bring with him a dressing-knife, and shall deliver the same knife at the place of execution to the Sergeant of the Larder, who shall be also then and there ready, and hold upright the dressing-knife till execution be done. "xiv. And the Sergeant of the Poultry shall be also then and there ready with a cock in his hand, ready for the Surgeon to wrap about the same stump, when the hand shall be so stricken off. "xv. And the Yeoman of the Scullery to be also then and there ready, and prepare and make at the place of execution a fire of coals, and there to make ready searing-irons against the said Surgeon or his deputy shall occupy the same. "xvi. And the Sergeant or Chief Ferror shall be also then and there ready, and bring with him the searing-irons, and deliver the same to the same Sergeant or Chief Surgeon or to his deputy when they be hot. "xvii. And the Groom of the Salcery shall be also then and there ready with vinegar and cold water, and give attendance upon the said Surgeon or his deputy until the same execution be done. "xviii. And the Sergeant of the Woodyard shall bring to the said place of execution a block, with a betil, a staple, and cords to bind the said hand upon the block while execution is in doing." In addition to losing his hand, the unfortunate offender was imprisoned for life. It was not until 1829 that this punishment was abolished, after having been in existence for a period of 287 years. A curious mode of punishment, intended to make its victim the object of popular ridicule, was in vogue in the ancient German Empire, where persons who endeavoured to create tumults and to disturb the public tranquility were condemned to carry a dog upon their shoulders from one large town to another. The penal laws of France were every wit as inhuman as our own--burning alive, breaking on the wheel, hanging, beheading, and quartering were common forms of punishment. Awful atrocities were committed on living victims, such as tearing off the flesh with red-hot pincers, pouring molten lead and brimstone into the wounds, and cutting out the tongue. The following is the sentence passed upon Ravaillac, the assassin of Henry IV., in 1610:--He was first to be privily tortured and then carried to the place of execution. There the flesh was to be torn with red-hot pincers from his breasts, his arms and thighs, and the calves of his legs; his right hand, holding the knife wherewith he committed his crime, was to be scorched and burned with flaming brimstone; on the places where the flesh had been torn off a mixture of melted lead, boiling oil, scalding pitch, wax, and brimstone was to be poured; after this he was to be torn in pieces by four horses, and his limbs and body burned to ashes and dispersed in the air. His goods and chattels were confiscated; the house in which he was born was pulled down; his father and mother were banished, and his other relatives commanded to change the name of Ravaillac for some other. This sentence was not, surely, a vindication of outraged justice, but rather a purile and barbarous legal revenge. To return to the laws of our own country. Mutilation of one sort or another was long a favourite mode of punishment; pulling out the tongue for slander, cutting off the nose for adultery, emasculation for counterfeiting money, and so on. In Foxe's "Book of Martyrs" there is an account of a miracle which was worked on the person of a mutilated criminal. A Bedfordshire man was convicted of theft, and for his crime his eyes were pulled out and other abominable mutilations were inflicted on him. The sufferer repaired to the shrine of St. Thomas at Canterbury, where after devout and steadfast prayer the parts he had lost were, so we are told, miraculously restored. Anyone who fought with weapons in a church had an ear cut off, or if he had already lost both his ears was branded in the cheek with the letter F. By an Act passed in the reign of Queen Elizabeth, the punishment for forgery was that the offender should stand in the pillory and have his ears cut off by the common hangman, his nostrils slit up and seared, and then suffer imprisonment for life. In 1731 Joseph Cook, aged 70 years, underwent this punishment, the mutilation taking place while he stood in the pillory at Charing Cross. The Coventry Act (22-23 Charles II., chapter 1.) was passed in consequence of Sir John Coventry having been assaulted in the street and his nose slit, out of revenge as was supposed. It enacted that if any person should of malice, aforethought, and by lying in wait, cut out or disable the tongue, put out an eye, slit the nose, or cut off or disable any limb or member of any other person, with intent to maim or to disfigure him, such person, his councillors, aiders, and abettors, should be guilty of felony without benefit of clergy, which implied the punishment of death. This Act was not repealed until 1828, and resulted in at least one curious case. In 1772, one Coke and a labourer named Woodburn were indicted under the Act--Coke for hiring and abetting Woodburn, and Woodburn for the actual offence of slitting the nose of one Crispe, who was Coke's brother-in-law. The intention of the accused was to murder Crispe, and they left him for dead, having terribly hacked and disfigured him with a hedge-bill, but he recovered. An attempt to murder was not then a felony, but under the Coventry Act to disfigure with an intent to disfigure was; and the accused were indicted for the latter offence. Coke, in the course of his defence, raised the point that the attack on Crispe was made with intent to murder him and not with intent to disfigure, therefore, he contended, the offence was not within the statute under which he was indicted. But the court held that if a man attacked another intending to murder him, with such an instrument as a hedge-bill, which could not but endanger a disfiguring of the victim, and in such attack happened not to kill but only to disfigure, he might be indicted for disfiguring. The jury found the prisoners guilty, and they were condemned and duly executed. The laws for the protection of trade decreed many cruel punishments. Thus, in the reign of Elizabeth, an Act passed for the encouragement of the woollen industry prescribed that the penalty for taking live sheep out of the country should be forfeiture of goods, imprisonment for a year, and that at the end of the year the left hand of the prisoner should be cut off in a public market, and be there nailed up in the most public place. A second offence was punishable with death. By statute 21 James I. chapter 19, anyone unfortunate enough to become a bankrupt was nailed by one ear to the pillory for two hours, and then had the ear cut off. Under the Romans a bankrupt was treated still more unmercifully, for at the option of his creditors he was either cut to pieces or sold to foreigners beyond the Tiber. A longstanding disgrace to the intelligence and humanity of our countrymen was the fact that in former times burning alive was the inevitable fate of poor wretches convicted of witchcraft, the penal laws against which were not repeated until 1736. So late as 1712, five so called witches were hung at Northampton, and in 1716 Mrs. Hicks, and her daughter, aged nine, were condemned to death at Huntingdon for selling their souls to the devil. Even children of tender years were not spared, but with their elders alike fell victims to our law's barbarity; there are many recorded instances of children under ten years of age being executed. In Scotland the last execution for witchcraft took place in 1722. Space will not permit any attempt to run through the whole gamut of legal iniquities; at most we can only attempt a very incomplete catalogue of the inhumanities at one time or another incident to our penal codes, and with a final horror we must bring this article to an end. The punishment with which we are now about to deal, that of pressing to death, _peine forte et dure_ as it was called, is perhaps the most noteable example of the former barbarity of our law, since it was inflicted before trial on innocent and guilty alike, who refused to plead "Guilty" or "Not Guilty" to an indictment for felony. What this punishment was, which was first instituted in 1406, can best be told by giving the form of the judgment of the court against the person who refused to plead:--That the prisoner shall be remanded to the place from whence he came, and put in some low, dark room, and that he shall lie without any litter or other thing under him, and without any manner of covering; that one arm shall be drawn to one quarter of the room with a cord and the other to another, and that his feet shall be used in the same manner; and that as many weights shall be laid upon him as he can bear, and more; that he shall have three morsels of barley bread a day, and that he shall have the water next the prison, so that it be not current; and that he shall not eat the same day on which he drinks, nor drink the same day on which he eats; and that he shall continue so till he die or answer. _Peine forte et dure_ was not abolished till 1772, and was frequently undergone by accused persons in order to preserve their estates from being forfeited to the Crown, which would have been the case if they had stood their trial and been found guilty. The year 1741 is probably the last date on which the punishment was inflicted. In 1721, two men, Thomas Cross and Thomas Spigot, were ordered to be pressed to death at the Old Bailey. Cross gave in on seeing the preparations made for his torture, but Spigot was made of sterner stuff. In the "Annals of Newgate" is a description of his sufferings:--"The chaplain found him lying in the vault upon the bare ground with 350 pounds weight upon his breast, and then prayed by him, and at several times asked him why he would hazard his soul by such obstinate kind of self-murder. But all the answer that he made was--'Pray for me, pray for me!' He sometimes lay silent under the pressure, as if insensible to pain, and then again would fetch his breath very quick and short. Several times he complained that they had laid a cruel weight upon his face, though it was covered with nothing but a thin cloth, which was afterwards removed and laid more light and hollow; yet he still complained of the prodigious weight upon his face, which might be caused by the blood being forced up thither, and pressing the veins as violently as if the force had been externally upon his face. When he had remained for half-an-hour under this load, and 50 pounds weight more laid on, being in all 400 pounds, he told those who attended him he would plead. The weights were at once taken off, the cords cut asunder; he was raised by two men, some brandy was put into his mouth to revive him, and he was carried to take his trial." In 1735, a man, who pretended to be dumb at the Sussex Assizes, was sent to Horsham Gaol to be pressed to death unless he would plead. He endured in agony a weight of 350 pounds, and then the executioner, who weighed over 16 stones, laid himself upon the board upon which the weights were placed, and killed the wretched man instantly. Trials of Animals. BY THOMAS FROST. One of the most singular features of the jurisprudence of the middle ages, and one which was retained in the French code down to nearly the middle of the last century, was the indictment of domestic animals for injuries inflicted on mankind. The records of the criminal tribunals of France disclose ninety-two such judicial processes between 1120 and 1741, when the last of these grotesque trials took place in Poitou. The practice seems to have been based on the Mosaic law, it being there ordered that, "if an ox gore a man or a woman that they die, then the ox shall be stoned, and his flesh shall not be eaten." (Exodus, c. xxi., v. 28.) Oxen and pigs were the animals that most frequently were the subjects of these strange proceedings, the indictment against the former being for goring persons, while the latter suffered for killing and sometimes devouring very young children. The earliest instance of which any particulars can be gathered occurred in 1314, when, according to M. Carlier, who relates the story in his history of the Duchy of Valois, a bull escaped from a farm-yard in the village of Moisy, and gored a man so severely that death ensued. The Count of Valois, being informed of the fatility, directed that the bull should be captured, and formally prosecuted for causing the man's death. This was done, and evidence was given by persons who had seen the man attacked and killed. The bull was thereupon sentenced to suffer death, which was inflicted by strangulation, after which the carcase was suspended from a tree by the hind legs. But the affair did not end thus, for the sentence was appealed against, probably by the owner of the bull, on the ground that the retainers of the Count of Valois had no legal authority to execute the sentence. This plea was debated at great length, and the provincial parliament eventually decided that, though the sentence was a just one, the Count of Valois had no justiciary authority in the district of Moisy. Next in the order of time comes the trial at Falaise of a sow which had torn the face and arm of a child, from the effects of which injuries it died. The sow was condemned to be mutilated in the head and one fore leg, and afterwards to be strangled, which sentence was executed in the public square of the town. This was in 1386. Three years later, a horse was condemned to death at Dijon for having killed a man. In 1403, Simon de Baudemont, lieutenant of Meulan; Jean, lord of Maintenon; and the bailiff of Mantes and Meulan, signed an attestation of the expenses incurred in the prosecution and execution of a sow that had killed and partially eaten a child. The following is a copy of the document, to which it may be added that the story of the trial and execution may be found in the "Curiosités Judiciaires et Historiques du Moyen Age" of M. Aguel:--"Item, for expenses within the gaol, 6 sols. Item, to the executioner, who came from Paris to Meulan to put the sentence in execution, by command of our Lord the Bailiff and of the King's Attorney, 54 sols. Item, for the carriage that conveyed her to execution, 6 sols. Item, for ropes to tie and haul her up, 2 sols, 8 deniers. Item, for gloves, 12 deniers; amounting in the whole to 69 sols, 8 deniers." In connection with the first item of this curious document, it may be observed that, in a receipt delivered five years later by a notary of Pont de l'Arche to the gaoler of the prison of that town, the same amount is allowed for the daily food of a pig, imprisoned on the charge of killing a child, as for a man in the same prison. The last item, the gloves, is supposed by M. Aguel to be a customary allowance to the executioner. In 1457, a sow and her six young pigs were tried at Lavegny, on the charge of having killed and partially eaten a child. The sow was convicted, and condemned to death; but the little ones were acquitted on the ground of their tender years or months, the bad example of their mother, and the absence of direct evidence of their having partaken of the unnatural feast. In 1494, sentence of death was pronounced on a pig by the Mayor of Laon for having mutilated and destroyed an infant in its cradle, full particulars of which case were given in the "Annuaire du Departement de l'Aisne" for 1812. The act of condemnation, as there given, concludes as follows:--"We, in detestation and horror of this crime, and in order to make an example and satisfy justice, have declared, judged, sentenced, pronounced, and appointed that the said hog, being detained a prisoner, and confined in the said abbey, shall be, by the executioner, strangled and hanged on a gibbet, near and adjoining the gallows in the jurisdiction of the said monks, being near their copyhold of Avin. In witness of which we have sealed this present with our seal." This document was sealed with red wax, and endorsed:--"Sentence on a hog, executed by justice, brought into the copyhold of Clermont, and strangled on a gibbet at Avin." Three years later, a sow was condemned to be beaten to death for having mutilated the face of a child of the village of Charonne. The act of condemnation in this case directed further that the flesh of the sow should be given to the dogs of the village, and that the owner of the sow and his wife should make a pilgrimage to the Church of Our Lady at Pontoise, and bring on their return a certificate that this injunction had been duly complied with. In 1499, a bull was strangled for having killed a boy in the lordship of Cauroy, which belonged to the abbey of Beaufiré. Lionnois gives, in his history of Nancy, a full report of the proceedings on the delivery of a condemned pig to the executioner of that city in 1572. He mentions, among other details, that the animal, secured by a cord, was led to a cross near the cemetery; that from the most remote period the justice of the lord, the abbot of Moyen Moutier, was accustomed to deliver to the provost, or marshal of St. Diez, near to this cross, all condemned criminals, that execution might ensue; and that, the said pig being a brute beast, the mayor and the justice held a conference at that place, and left the said pig tied with a cord, without prejudice to the judicial rights of the lord. Judicial proceedings against the lower animals were not confined to France, for the list of such cases compiled by M. Berriat St. Prix, and published in the "Memoires de la Societé des Antiquaires" for 1829, mentions one tried at Lausanne in 1364, another at the same town in 1451, a third at Basle in 1474, another at Lausanne in 1479, and a fifth at the same place in 1554. Concerning the first of these Swiss trials, Ruchat states, in his history of the Protestant reformation in Switzerland, that the victim was a pig that had killed a child in the village of Chattens, situated among the Jorat hills. It was cited to appear in the Bishop's Court at Lausanne, convicted of murder, and sentenced to death--the executioner being a pork butcher. The Basle case was a very singular one. A farm-yard cock was tried on the absurd charge of having laid an egg. It was contended in support of the prosecution that eggs laid by cocks were of inestimable value for use in certain magical preparations; that a sorcerer would rather possess a cock's egg than the philosopher's stone; and that Satan employed witches to hatch such eggs, from which proceeded winged serpents most dangerous to mankind. On behalf of the gallinaceous prisoner, the facts of the case were admitted, but his advocate submitted that no evil animus had been proved against his client, and that no injury to man or beast had resulted. Besides, the laying of the egg was an involuntary act, and as such not punishable by law. If it was intended to impute the crime of sorcery to his client, he was entitled to an acquittal; for there was no instance on record of Satan having made a compact with one of the brute creation. In reply, the public prosecutor stated that, though the Evil One did not make compacts with brutes, he sometimes entered into them; and though the swine possessed by devils, as related by the Evangelists, were involuntary agents, yet they, nevertheless, were punished by being caused to run down a steep decline into the Lake of Galilee, where they were drowned. The poor cock was convicted, and condemned to death, not as a cock, however, but as a sorcerer, or perhaps a devil, in the form of a cock, on which finding it was, with the egg attributed to it, burned at a stake, with all the form and solemnity of a judicial execution. As the lower animals were amenable to the law in Switzerland in those dark ages, so, in certain circumstances, they could be put into the witness box. If a house was broken into between sunset and sunrise, and the occupier killed the intruder, the act was regarded as justifiable homicide. But it was thought right to provide by law against the case of a man, living alone, who might invite a person whom he wished to kill to spend the evening with him, and having slain him, might assert that he committed the act in self-defence, or to protect his property, the dead man having been a burglar. Therefore, when a man was killed in such circumstances, the occupier of the house was required to produce some domestic animal that was an inmate of the house, and had witnessed the tragedy, and to declare his innocence on oath in the presence of such animal. If the brute witness did not contradict him, he was acquitted; the law taking it for granted that God, rather than allow a murderer to go unpunished, would intervene by causing a miraculous manifestation by the mouth of a dumb witness. Even more strange than the trials of oxen, pigs, etc., for offences against mankind, were the legal proceedings often taken in the middle ages against noxious insects and the smaller quadrupeds, such as rats. The "Memoires de la Societé Royale Academique de Savoie" contain a very curious account of the proceedings instituted in 1445 and 1487 against certain beetles that had committed great ravages in the vineyards of St. Julien. Advocates were named on behalf of the vine-growers and the beetles respectively; but, by a singular coincidence, the insects disappeared when cited to answer for the mischief they had done, and the proceedings were in consequence abandoned. That was in 1445. In 1487, however, they re-appeared, and a complaint was thereupon addressed to the vicar-general of the Bishop of Maurienne, who named a judge, and also an advocate to represent the beetles. Counsel having been heard on both sides, the judge suggested that the vine-growers should cede to the defendants certain land, where they could live without encroaching on the vineyards. The plaintiffs agreed to this compromise, with the proviso that, in default of the defendants accepting the terms offered them, the judge would order that the vineyards should be respected by the beetles under certain penalties. The advocate for the beetles demanded time for consideration, and on the resumption of the proceedings stated that he could not accept, on behalf of his clients, the suggestion of the court, as the land proposed to be given up to them was barren, and afforded nothing upon which they could subsist. The court then appointed assessors to survey the land in question, and on their report that it was well wooded and provided with herbage, the conveyance was ordered to be engrossed in due form and executed. The matter was then regarded by the plaintiffs as settled; but the beetles discovered, or their advocate discovered for them, that a quarry of an ochreous earth, used as a pigment, had formerly been worked on the land conveyed to the insects, and though it had long since been worked out, some person possessed an ancient right of way to it, the exercise of which would be extremely prejudicial to them. Consequently, the agreement was held to be vitiated, and the legal proceedings had to be recommenced _de novo_. How they eventually terminated cannot be told, owing to the mutilation of the documents relating to the proceedings subsequent to 1487. Nearly a century later, legal proceedings were commenced by the inhabitants of a village in the diocese of Autun against the rats by which their houses and barns were infested; the trial being famous in the annals of French jurisprudence as that in which Chassanee, the celebrated jurisconsult, first achieved distinction. The rats not appearing on the first citation, Chassanee, who was retained for the defence, argued that the summons was of too local a character, and that, as all the rats in the diocese of Autun were interested in the case, they should be summoned throughout the diocese. This plea being admitted, the curé of every parish in the diocese was instructed to summon all the rats within its limits to attend on a day named in the summons. The day having arrived, and the rats failing to appear, Chassanee said that, as all his clients were summoned, including old and young, sick and healthy, great preparations had to be made, and certain necessary arrangements effected, and he had to ask, therefore, for an extension of time. This also being granted, another day was appointed, but again not a single rat put in an appearance. Chassanee then made an objection to the legality of the summons. A summons from that court, he said, implied full protection to the parties summoned, both on their way to it and on their return to their homes; and his clients, the rats, though most anxious to appear in obedience to the court, did not dare to leave their homes to come to Autun, on account of the number of evil-disposed cats kept by the plaintiffs. If the latter would enter into bonds, under heavy pecuniary penalties, that their cats should not molest his clients, the summons would be immediately obeyed. The court acknowledged the validity of this plea, but the plaintiffs declined to be bound for the good behaviour of their cats. The further hearing of the case was, therefore, adjourned _sine die_, and thus Chassanee gained his cause. Full particulars of the proceedings are given in a Latin work, written by him, and published in 1588. Devices of the Sixteenth Century Debtors. BY JAMES C. MACDONALD, F.S.A., SCOT. In the year 1531, a certain John Scott, residenter in the good town of Edinburgh, was financially in a condition of chronic decrepitude. His household goods were rapidly going to the hammer, and one creditor, bolder than his fellows, decided to attack the impecunious personality of the common debtor. Writs from court and messengers of the law were severally set in motion; and on the earliest possible day one of those myrmidons served upon the debtor personally, a writ bearing the terrible title of "Letters of IV Forms." The "coinless" John was therein warned that if he failed forthwith to pay or satisfy the lawful debt, for which decreet has gone out, he would (unless he went to prison in a peaceful way) be declared a rebel against the King's Majesty. Now John reasoned with himself that payment he could not make; outlawry he rather feared; and _squalor carceris_ he could not endure. What was to be done? He had heard of the horns of the Hebrew altars: how that personal safety resulted from any manual attachment thereto. Was there some such boon in bonny Scotland? There was Holyrood, with its sanctified abbey. It was near; any port in such a storm. Down the Canongate, and straight to the sanctuary he ran--all to the manifest loss, injury, and damage of his creditors who followed, having got wind of this unique _hegira_ from the red-nosed city guard. In vain the creditors pleaded; equally in vain were their threats. The canny Scot was warranted safe and skaithless against "all mortal." Annoyed at his debtor's immunity from arrest, chagrined that any money John possessed had now been further dissipated in the Abbey admission dues to its protection giving portals--each creditor turned sadly to his "buiks of Compts" and superscribed over against John Scott's name the expressive legend "bad debt." And this John Scott became the forerunner, _de facto_, of a long line of "distressed" persons. Nay more, he secured an immortality as lasting as that of the sovereign whose solemnly sounding "Letters of IV Forms," he spurned and left unanswered. A generation later, and another _new_ way of paying old debts is placed on record. To balance international honours it is of Anglican origin. Scoggan, the jester of the Elizabethan court, falls into financial distress. He borrows £500 from the Queen--_mirabile dictu_. Only a fool would have tried such a thing. It was put down as a "short loan," but it soon became clear to the royal lender that its longevity would outlast her reign. To all demands the clownish borrower smilingly cried "long live the queen," until at last his existence as court fool was in danger of being ended. But he would rather die than be evicted; and die he did. He became, theatrically speaking, defunct. The _late_ Scoggan was accordingly borne, to solemn music, past the royal garden; and the queen, seeing the mournful show--and knowing nought of its hollowness--asked whose it was. "Scoggan, Your Majesty," was the reply. "Poor fellow," she exclaimed, "the £500 he owed me I now freely forgive." Whereupon the "defunct" sat up and declared that the royal generosity had given him a new lease of life. "Thou rogue," said the queen, "thou art more rogue than fool. Thou hast improved upon the plan of that John Scott, who, in the reign of my late cousin of Scotland, as Sir James Melvil tells me, got rid of the oldest debt and the longest loan." Laws Relating to the Gipsies. BY WILLIAM E. A. AXON, F.R.S.L. Early in the fifteenth century the gipsies made their appearance in Europe, and as strangers were not favourably regarded in those days the advent of these dark-skinned people, speaking a language of their own, dressing in a picturesque, but uncommon costume, and having their own rulers, and their own code of morals, and owning no allegiance to the laws of the land in which they sojourned, naturally attracted attention. At first some credence was given to their high-sounding pretensions, and the dukes, counts, and lords of Lesser Egypt received safe conducts and protection under the idea that they were engaged in religious pilgrimages. But the seal of the Emperor Sigismund would not protect them when the term of their pretended pilgrimage had expired, nor would the manners and customs of the gipsies substantiate any special claim to sanctity or religious fervour. Even the ages when the divorce was most marked between religion and morals would be staggered by the thefts, and worse outrages that were laid to their charge. Sigismund's safe conducts are said to have been given not as Emperor, but as King of Hungary, and some of the gipsies were early employed as ironworkers in the realm of St. Stephen. In 1496 King Ladislaus gave a charter of protection to Thomas Polgar and his twenty five tents of gipsies because they had made musket bullets and other military stores for Bishop Sigismund at Fünfkirchen, but whatever consideration may have been shewn to them in the beginning, they speedily became objects of suspicion and dislike. There is not a country in Europe which has not legislated against them or endeavoured to exile them by administrative acts. Their expulsion from Spain was decreed in 1492, from France in 1562, and from various Italian states about the same time. Denmark, Sweden, and the Netherlands have also pronounced against them. The Diet of Augsburg in 1500, ordered their expulsion from Germany on the ground that they were spies of Turkey seeking to betray the Christians. This edict, though several times repeated, was non-effective. In Hungary and Transylvania the authorities, hopeless of getting rid of the troublesome immigrants, took strong measures to bring them into line with the rest of the population. They were prohibited from using the Romany tongue, from retaining their gipsy surnames, from wandering about the country, from eating carrion, and from dealing in horses. Those fit for military service were to be taken into the army, and the rest were to live and dress and deport themselves in the same manner as the peasantry of the country. These regulations were not wholly effective, but the result of the efforts put forward by Maria Theresa, and her successors may be seen in the sedentary gipsies of the Austro-Hungarian Empire. At times they have been subjected to fierce persecution. In 1782, a dreadful accusation was brought against the Hungarian Romanis, when more than a hundred of them were accused of murder and cannibalism. The gang were said to have lived by highway robbery and murder, and to have cooked and eaten the bodies of their victims. At Frauenmark four women were beheaded, six men were hanged, two were broken on the wheel, and one was quartered alive. Altogether forty-five were executed and many more were imprisoned. How much of this was suspicion substantiated by torture? The gipsies came frequently in contact with the myrmidons of the law. "As soon as the officer seizes or forces away the culprit," says Grellmann, "he is surrounded by a swarm of his comrades who take unspeakable pains to procure the release of the prisoner.... When it comes to the infliction of punishment, and the malefactor receives a good number of lashes well laid on, in the public market place, a universal lamentation commences among the vile crew; each stretches his throat to cry over the agony his dear associate is constrained to suffer. This is oftener the fate of the women than of the men; for as the maintenance of the family depends most upon them, they more frequently go out for plunder." It is a noteworthy fact that Grellmann writing in 1783, has not a word of condemnation of the barbarous practice of flogging women. In England as elsewhere the earliest of these romantic people were welcomed. In 1519, the Earl of Surrey entertained "Gypsions" at Tendring Hall, Suffolk, and gave them a safe-conduct. Still earlier in 1505, Anthony Gaginus, Earl of Little Egypt, had a letter of recommendation from James IV. of Scotland to the King of Denmark. James V. bestowed a charter upon James Faa, Lord and Earl of Little Egypt, by which he was privileged to execute justice upon his followers, much in the same way as the great barons were authorised to deal with their vassals. But they soon fell out of favour. In England, in the twenty-second year of Henry VIII. an act of parliament was passed which sets forth that there are certain outlandish people, who not profess any craft, or trade, whereby to maintain themselves, but go about in great numbers from place to place, using craft and subtlety to impose on people, making them believe that they understood the art of foretelling to men and women their good or ill fortune, by palmistry, whereby they frequently defraud people of their money, likewise are guilty of thefts and highway robberies; it is ordered that the said vagrants, commonly called Egyptians, in case they remain sixteen days in the kingdom, shall forfeit their goods and chattels to the king and be further liable to imprisonment. In 1537, Cromwell writes to the Lord President of the Marches of Wales, that the "Gipcyans" had promised to leave the kingdom in return for a general pardon for their previous offences, and exhorts the authorities to see that their deportation is effected. Many were sent to Norway, but the effort to extirpate them from the kingdom entirely failed.[10] By an act of 1554, a penalty of £40 was to be inflicted upon any one knowingly importing them. Those gipsies, following "their old accustomed devlishe and noughty practises," were to be treated as felons, but exception was made in favour of such as placed themselves in the service of some "honest and able inhabitant." Many were executed, but the remnant survived and managed to hold a yearly meeting at the Peak Cavern or Kelbrook, near Blackheath. Still sterner was the law passed in 1562-3, which made it felony for any one born within the kingdom to join the fellowship of vagabonds calling themselves Egyptians. The previous acts had referred to the gipsies as an outlandish people, but now the native born were brought equally within the meshes of this sanguinary law. "Throughout the reign of Elizabeth," as Borrow remarks, "there was a terrible persecution of the gipsy race; far less, however, on account of the crimes which were actually committed, than from a suspicion which was entertained that they harboured amidst their companies priests and emissaries of Rome." The harrying of the missionary priests was in part dictated by the spirit of religious persecution, but in a still greater degree by the conviction that they were political emissaries, aiming at the subversion of the kingdom. The priests on the English mission had often to disguise themselves, and at times may have assumed the garb of wandering beggars, but they are not likely to have consorted with the Romans, whose language would be strange to them, and whose heathenish indifference to all dogmas, rites, and ceremonies, would be specially distasteful to zealous Catholics. After "the spacious times" of great Elizabeth, the gipsies had a rest from special oppression, though they were of course still in jeopardy from the harsh laws as to vagrancy and those minor crimes, that are their characteristic failings. Romany girls were flogged for filching and fortune-telling, and Romany men were hanged for horse-stealing. They were looked upon with suspicion, and it was easy enough to raise prejudice against them. This was shewn in the notorious case of Elizabeth Canning. She was a girl of eighteen, employed as a domestic servant at Aldermanbury, and in 1753, disappeared for four weeks. On her return she asserted that she had been abducted and detained in a loft by gipsies, who gave her only bread and water to eat. Their aim she declared was to induce her to adopt an immoral life. Mrs. Wells, Mary Squires, George Squires, Virtue Hall, Fortune and Judith Natus, were arrested, and Wells and Squires were committed for trial. The proceedings, partly before Henry Fielding the novelist, were conducted with a laxity that seems now to be almost inconceivable. At the Old Bailey trial there was a remarkable conflict of evidence, but in the end Mrs. Wells was condemned to be burned in the hand, and Mary Squires to be hanged. Sir Christopher Gascoyne then Lord Mayor, was satisfied that there had been a miscarriage of justice and made enquiries, a respite was obtained and finally the law officers of the crown recommended the grant of a free pardon to Squires. The natural sequel was the prosecution of Canning for perjury. Fortune and Judith Natus now swore that they had slept each night in the loft where Canning declared she had been imprisoned, but it was very natural that people should ask why they had not given this important evidence at the previous trial. Mary Squires' alibi was sworn to by thirty-eight witnesses who had seen her in Dorsetshire, and was, to some extent, invalidated by twenty-seven who swore that she was in Middlesex at the time. As she was too remarkable for her ugliness to be easily mistaken, there must have been some very "hard swearing." Canning was convicted of perjury and transported, but the secret of her absence from New Year's Day, 1553, until the 29th of January was never divulged. The case excited great interest, and the controversy divided the whole of the busy, idle "town," into "Canningites" and "Gipsyites." The Tudor law (22 Henry VIII., c. 10) was repealed as "of excessive severity" in 1783 (23 George III., c. 51). The later legislation provides that persons wandering in the habit and form of Egyptians, and pretending to palmistry and fortune-telling, are to be deemed rogues and vagabonds (17 Geo. II., c. 5., 3 Geo. IV., c. xl.), and is liable to three months' imprisonment (5 Geo. IV., c. lxxxiii.), and encamping on a turnpike road involved a penalty of forty shillings (3 Geo. IV., c. cxxvi., 5 and 6 William IV., c. 50). Some of the older enactments remained on the statute book, though not enforced, until the passing of the statute law Revision Act of 1863, by which many obsolete parliamentary enactments were swept away. By the famous Poynings Act, English laws were declared applicable to Ireland. The gipsies were never common in the Isle of Saints, but by a special act they were, in 1634, declared to be rogues and vagabonds (10 and 11 Car. I., c. 4). There are acts of the Scottish Parliament as early as 1449, directed against "sorners, overliers, and masterful beggars with horse, hounds, or other goods," and that this would well describe the earlier gangs of gipsies is undeniable, but whether they were Romanis or Scots is a matter of controversy not easily decided in the absence of more definite evidence. A tradition of the Maclellans of Bombie says that the crest of the family was assumed on the slaying of the chief of a band of saracens or gipsies from Ireland. The conqueror received the barony of Bombie from the king as a reward. Having thus restored the fortunes of the family, the young laird of Bombie took for his crest a moor's head with the motto "Think on." If this legend was evidence, which it is not, there were gipsy marauders in Galloway in the middle of the fifteenth century. But in 1505, we have the entry of a gift by the King of Scotland of seven pounds to the "Egiptianis." In the same year there is a letter already named, in which "Anthonius Gagino," or Gawino, is recommended to the King of Denmark. In 1527, Eken Jacks, master of a band of gipsies, was made answerable for a robbery from a house at Aberdeen. In 1539, a similar charge was brought, but not proved, against certain friends and servants to "Earl George, callet of Egipt." This chieftain was one of the celebrated Faa tribe. In 1540, George and John Faa were ordered by the bailies of Aberdeen to remove their company and goods from the town. This is the first action of a Scottish authority against the gipsies as gipsies. But, by a charter dated four days before the municipal decree, James V. confirms to "our lovit Johnne Faw, lord and erle of Little Egipt," full power to execute justice over his tribe, some of whom had rebelled and forsaken his jurisdiction. In 1541, an act of the Lords of Council and Session decreed the banishment of the gipsies from the realm within thirty days, because of "the gret theftes and scathis" done by them. Some of them passed over the border, but not for long, and in 1553 the Faas again had a charter upholding their rights of lordship against Lalow and other rebels of their company. And in the next year their is a pardon to four Faas for the "slachter of umquhile Ninian Smaill." The gipsies had the favour of the Roslyn family, and it is said that Sir William Sinclair rescued "ane Egiptian" from the gibbet in the Burgh Muir, "ready to be strangled," and that in gratitude the tribe used to go to Roslyn yearly and act several plays in May and June. In 1573, and again in 1576, the gipsies were ordered to leave the realm, but the decree was never put in force. When Lady Foulis was tried in 1590, one charge was that she had sent a servant to the gipsies for advice as to poison to be administered to "the young laird of Fowles and the young Lady Balnagoune." When James VI. held a High Court of Justicary at Holyrood in 1587, for the reformation of enormities, the offenders to be dealt with included "the wicked and counterfeit thieves and limmers calling themselves Egyptians." There were several enactments of the Scottish Parliament in 1574, 1579, 1592, and 1597. These were all aimed at the nomadic habits of the race, but the settled gipsies were left unmolested. "Strong beggars and their children" were to be employed in common work for their whole life, and it is said that salt masters and coal masters thus made serfs of many. In 1603, there was a special "Act anent the Egiptians," which declared it "lesome" for anyone to put to death any gipsy, man, woman, or child, remaining in the country after a certain date. Moses Faa appealed against it as a loyal subject, and found a security in David, Earl of Crawford. This was in 1609, but in 1611 four of the Faas were tried at Edinburgh under the acts against the gipsies, and were convicted and executed on the same day. Constables and justices of the peace were exhorted to put the law in force. Four gipsies, who could not find securities that they would leave the kingdom, were sentenced to be hanged in 1616, but were reprieved and probably released. In 1624, eight were executed on the Burgh Muir, but the women and children were simply exiled. In 1636, a number were condemned at Haddington, the men to be hanged and _the women to be drowned_. Women who had children were to be scourged and branded in the face. In the latter half of the seventeenth century many were sent to the plantations in Virginia, Barbadoes, and Jamaica. Generally, however, the stringent laws were not stringently administered, and from fear or influence of some kind the gipsies often escaped. The British gipsies in our own day find that whilst the law is dealt out to them with perfect impartiality, the social pressure is decidedly against them. At such watering-places as Brighton and Blackpool--to name two extremes--they tell fortunes as though there were no statutes in that case made and provided. But it is not easy for them to keep on the road. The time cannot be far off when they must live with the _gaújos_[11] as house-dweller or perish from the land. Commonwealth Law and Lawyers. EDWARD PEACOCK, F.S.A. The great Civil War as it is called, that is the struggle between Charles the First and his parliament, is memorable in many respects. No student of modern history can dispense with some knowledge of it, and the more the better, for it was the result of many things which had happened in the far distant past, and we may safely say that the great French Revolution, which produced some good, and such an incalculable amount of evil would have run a far different course to that which it did, had not the political ideals of the men who took part in that terrible conflict been deeply influenced by what had taken place in England a century and a half before. As to the civil wars which had occurred in England in previous days, little need be said. They were either dynastic--the struggle of one man or one family against another--or they were religious revolts against the Tudors, by those who vainly endeavoured to re-establish the old order of things in opposition to the will of the reigning monarch and the political servants who supported the throne. The struggle between Charles and the Long Parliament was far different from this. That religion in some degree entered into the conflict which was raging in men's mind long ere the storm burst it would be childish to deny, but it was not so much, except in the case of a very few fanatics, a conflict between different forms of faith as because a great number of the English gentry, and almost the whole of the mercantile class, which had then become a great power, felt that they had the best reasons for believing that it was the deliberate intention of the King and the desperate persons who advised him, to levy taxes without the consent of parliament. This may occasionally have been done in former reigns, but it is the opinion of most of those who have studied the subject in latter days, so far as we can see, without prejudice, that in every case it was illegal. Whether this be so or not, it must be remembered that times were in the days of Charles the First, far different from what his predecessors the Plantagenets and Tudors had known. A great middle class had arisen partly by the division of property consequent on the dispersion of the monastic lands, and partly also by the break up of the vast feudal estates, some of which had fallen into the hands of the Crown by confiscation, others been sold by their owners to pay for their own personal extravagence. Though murmurs had existed for many years, it was not until the memorable ship-money tax was proposed that affairs became really grave. Had England been threatened by an invasion such as the Spanish Armada, there can be no doubt that a mere illegality in the mode of levying taxes to meet the emergency would have been regarded as of little account, but in the present case there was no overwhelming need, and it must be borne in mind that to add to the national irritation the two first Stuarts were almost uniformally unsuccessful in their foreign wars. It is to Attorney General Noy that we owe the arbitrary ship-money tax. He was a dull, dry, legal antiquary of considerable ability, whose works, such as his _Treatise concerning Tenures and Estates_; _The Compleat Lawyer_; _The Rights of the Crown_, and others of a like character, are yet worth poring over by studious persons. Such a man was well fitted for historical research, no one of his time could have edited and annotated _The Year Books_ more efficiently, but he had no conception of the times in which he lived, the narrow legal lore which filled his mind produced sheer muddle-headedness, when called upon to confront an arbitrary king face to face with an indignant people. That there was less to be said against this form of royal taxation than any other that legal ingenuity could light upon must be admitted, but as events shewed the course he advised the king to take, was little short of madness. John Hampden, who represented one of the oldest and most highly respected races of the English gentry--nobles as they would be called in any land but our own--set the example of refusing to pay this unjust levy. The trial lasted upwards of three weeks, and the men accounted most learned in the law were employed in the case. Sir John Bankes, the owner of Corfe Castle, Sir Edward Littleton, and others were for the King. Oliver Saint John and Mr. Holborn were for Hampden. Concerning Holborn little seems to be known, but Saint John made for himself a great name. His speeches are marvellously learned, shewing an amount of reading which is simply wonderful when we call to mind that in those days all our national records were unprinted, and almost all of them without calendar or index of any sort. It must, however, be remembered that in those days lawyers of both branches of the profession were well acquainted not only with the language in which our records were written, but also with the hands employed at various periods, and the elaborate system of contraction used in representing the words. A full report of this memorable trial is to be found in Rushworth's _Historical Collections_, volume ii. parts 1 and 2. Carlyle in his _Letters and Speeches of Oliver Cromwell_, in the emphatic diction he was accustomed to use says that Saint John was "a dark, tough man of the toughness of leather,"[12] but he does not dwell on his great learning and general ability, as he ought to have done. That Saint John's heart was in his work for his client we are well assured. That from a legal point of view, Hampden was his only client, we well know, but as a matter of fact, it is no exaggeration to say that he represented the people of England. The decision went in favour of the crown, which was from the first a foregone conclusion. It was a legal victory, but like many lesser victories won before and since success was the sure road to ruin. The sum contended for was absurdly small--twenty shillings only--but on that pound piece hung all our liberties; whether we were to continue a free people or whether we were to have our liberties filched away from us, as had already been the case in France and Spain. A sullen discontent brooded over the land, there was no rioting, but in hall and castle, country parsonage and bar-parlour, grave men were shaking their heads and asking what was to come next, all knew that a storm was brewing, the only question was when and where it would burst. Events changed rapidly, and Saint John though he took no very prominent part in the party struggles ere the war broke out, was undoubtedly the chief legal adviser of those who were in opposition to the faction which desired to make England a despotic monarchy. Such was the case during the war which ended in the tragic death of the king, and the establishment of a Republican form of government under the name of the Commonwealth. Saint John once again appears in a public manner which indicates that he was a brave man who had no more fear of the pistol and dagger of the assassin, than he had of the corrupt dealings of those who for a time, to their own imminent peril had misgoverned our country. This time we find him sent by the Commonwealth as ambassador to the seven United Provinces, then as now commonly called Holland, on account of the two provinces of north and south Holland, being by far the most influential states in that republic. The Dutch though republicans themselves, had during the latter part of our Civil War shewn sympathy with the cause of the Royalists. After the execution of the king, this feeling became naturally much intensified. On the other hand our newly established republic was for many reasons both of politics and religion very desirous of being on good terms with a sister commonwealth so very near at hand. To explain matters and perhaps to settle the heads of a definite treaty, the English government sent Isaac Doreslaus, or Doorslaer as their ambassador. He was by birth a Dutchman and a very learned lawyer. He had come to this country before, the war broke out in 1642. He was then made, probably through the influence of his friend Sir Henry Mildmay, "Advocate of the Army."[13] His great knowledge of Civil Law, which had been much neglected in England in times subsequent to the Reformation, rendered him of great service in his new position of Judge Advocate of the Army. For the same reason he soon afterwards was created one of the judges of the Admiralty Court. He became especially hateful to the Royalists from his having assisted in preparing the charges against Charles the First. In May, 1649, he sailed for Holland as Envoy of the English government to the Hague. He had only spent a short time there, when, while at supper in the Witte Zwaan (White Swan) Inn, some five or six ruffians with their faces hidden by masks, rushed into the room where he, in company with eleven other guests were sitting. Two of these wretches made a murderous attack on a Dutch gentleman of the company, mistaking him for Dorislaus. Finding out their error they set upon the Envoy and slew him with many wounds, crying out as they did so, "Thus dies one of the King's judges." The leader of this execrable gang was Col. Walter Whitford, son of Walter Whitford, D.D. The murderer received a pension for this "generous action"[14] after the Restoration. The English Parliament gave their faithful servant a magnificent funeral in Westminster Abbey, June 14, 1649, but when Charles the Second ascended the throne, his body was disturbed. His dust rests along with that of Admiral Blake and other patriots in a pit somewhere in Saint Margaret's churchyard.[15] Dorislaus, though a foreigner, ought to rank among our great English lawyers, for his services were devoted entirely to his adopted country. Whatever our opinions may be as to those differences which were the forerunners of so much bloodshed and crime, we must bear in mind that many of the foremost men on both sides were actuated by the highest principles of honour. The study of Canon Law had been prohibited in the preceding century, and the Civil Law with which it has so intimate a connection, though not made contraband, was so much discouraged that it is no exaggeration to say that the knowledge of it was confined to a very few. Selden, whose wide grasp of mind took in almost every branch of learning as it was known in his day, is the only English lawyer we can think of who had mastered these two vast subjects. This is the more remarkable as he was of humble parentage; the son of a wandering minstrel it is said, but from the first his passion for learning overmastered all difficulties. It must, however, be borne in mind that according to the custom of those times when his abilities became known, he met with more than one generous patron. We must for a moment return to Saint John who was selected in 1652, to represent his country in Holland. There was not, as there is now a trained body of men devoted to the diplomatic service. The reasons why Saint John was chosen for this important office are not clear. He was a great and widely read lawyer, who we apprehend was trusted with this difficult mission, not only because the government were assured of his probity, but because the relations between Holland and this country depended on many subtile antiquarian details which a mere student of the laws as they were then, would have been unable to unravel. The basis of the sea codes by which the various nations of christendom professed to be ruled, was the Laws of Oleron (Leges Uliarences). They were promulgated by Richard the First of England, on an island in the Bay of Acquitaine. How far they were ever suited for their purpose may be questioned, but it is certain that as centuries rolled on, they had though often quoted, ceased to have any restraining power, and as a consequence Spain, England, Holland, and other powers were guilty of constant acts of what we should now call piracy. A lasting treaty with Holland, could Saint John achieve it, would have been of immense advantage, but the Dutch were in no mood for an alliance on equal terms. It was a brave thing for Saint John to undertake so arduous a mission, for he not only run the risk of ignominous failure, but also was in no little danger from the savage desperadoes who thought they did the cause of their exiled master service by murdering the agents of the English government. When Saint John arrived at the Hague he was put off by slow and evasive answers, which soon shewed to him not only that his own time was being wasted, but what was to him of far more account, the honour of his country was being played with. He gave a proud, short, emphatic reply to the Dutch sophistries, and at once returned home again, to cause the celebrated Navigation Act to be passed, forbidding any goods to be imported into England, except in English ships, or in the ships of the country where the articles were produced. This was well-nigh ruin to the trade of the Dutch, who were then the great carriers of the world. In no sketch however brief of the lawyers of this disturbed time, can the name of William Prynne be entirely passed over, and yet it is not as a lawyer that his name has become memorable. Had he been a mere barrister at law he would long since have been forgotten, but he was an enthusiastic puritan of the presbyterian order, and a no less enthusiastic antiquary. He had probably read as many old records as Saint John or Selden, but had by no means their faculty of turning them to good account. He first comes prominently before us as attacking the amusements of the court, especially theatrical entertainments. For this he was proceeded against in the Star Chamber, sentenced to pay five thousand pounds and have his ears cut off; for an attack on episcopacy he was fined another five thousand pounds and sentenced once more to have his ears cut off. He afterwards bore a prominent part in the trial of Archbishop Laud. All along he continued to pour forth a deluge of pamphlets. He attacked Cromwell with such boldness, that the Protector felt called upon to imprison him in Dunster Castle, where however, his confinement was of a most easy character. He is said while there to have amused himself by arranging the Lutterell Charters, for which that noble home is famous. He took the side of Charles the Second at the Restoration, and as a reward was made keeper of the records in the Tower, a post for which he was peculiarly well fitted. There is probably nothing which distinguishes the periods of the Commonwealth and the Protectorate more markedly from other times of successful insurrection, than the very slight alteration which the new powers introduced into the laws of England. The monarchy, it is true, was swept away, but the judges went on circuit; the courts of Chancery and common-law sat as usual, the Lords of Manors held their courts, and the justices of peace discharged their various functions as if they had been the times of profoundest peace. No confiscations took place, as had been the case in the reign of Henry the Eighth and his successor, except in cases where the owners had been engaged in what the state regarded as rebellion, and even with regard to those who had fought in what is known as the first war, almost everyone was let off by a heavy fine. A list of these sufferers may be seen in _A Catalogue of the lords Knights and Gentlemen that have compounded for their Estates_ (_London Printed for Thomas Dring at the Signe of the George in Fleet Street_, neare Clifford's Inne, 1655.) The book is imperfect and very inaccurate. This is not of much consequence however, as the documents from which it is compiled known as _The Royalist Composition Papers_, are preserved in the record office, and are open to all enquirers. Those who madly engaged in what is known as the second war, had their estates confiscated by three acts of parliament of the years 1651 and 1652. These were reprinted and indexed for the _Index Society_ in 1879. These latter had their estates given back to themselves or their heirs on the Restoration. It does not seem that those who were fined, except in a very few cases had any return made to them. There have been few civil wars ancient or modern wherein the unsuccessful have been so tenderly treated. Yet sufferings of the poorer classes among the Royalists must have been very great. Next to the arbitrary conduct of the King and those immediately about his person, was the provocation which the Parliamentarians thought that the established church had given, firstly because many of the bishops and clergy maintained an extreme theory of the Divine Right of Kings, which is said first to have been taught in this country by Archbishop Cranmer. If this opinion were really accepted as more than a mere figure of flattering oratory, it made those who complied with it mere slaves to the sovereign, however tyrannical or wicked he might prove himself. The second ground of resentment was that they thought Archbishop Laud and many of the bishops and clergy, concealed Roman Catholics, "disguised Papists," as the common expression ran. We do not believe this charge with regard to Laud or most of the others so rashly accused. We are _quite sure_ it was not so if their writings are to be taken as a test of their feelings. Whatever may have been the truth, there is no doubt that even the more tolerant of what may be called the low-church party feared the worst. As early as 11th February, 1629, Oliver Cromwell, who was then member for Huntingdon, made a speech in which he said, "He had heard by relation from one Dr. Beard ... that Dr. Alablaster had preached flat Popery at Paul's Cross, and that the Bishop of Winchester (Dr. Neale), had commanded him as his Diocesan, he should preach nothing to the contrary."[16] So inflamed, however, were men's minds that as soon as the Parliamentary party was strong enough, Laud was indicted for high treason and beheaded. One of the first works of the Parliament when strong enough, was to abolish the _Book of Common Prayer_, and put a new compilation called the _Directory_ in its place. The use of the Prayer Book was forbidden not only in public offices of religion, but in private houses also. For the first offence five pounds was to be levied, for the second ten, and for the third the delinquent was to suffer one year's imprisonment.[17] Whether this stringent law was rigorously inforced we cannot tell. Probably in many cases the local justices would be far more lenient to the clergy who were their neighbours, that would be the legislators at Westminster, whose passions were fanned by listening to the popular preachers. Not content with interfering with the service-book, various acts were passed relating to "Scandalous, Ignorant, and Insufficient ministers." That the commissioners who put these acts in force removed some evil persons we do not doubt, but if John Walker's _attempt towards recovering an account of the number and sufferings of the Clergy of the Church of England, who were sequestered ... in the Grand Rebellion_, be not very grossly exaggerated, which we see no reason, to believe, many innocent persons must have had very hard treatment. The marriage laws of England were in a vague and unsatisfactory state from the reign of Edward the Sixth, until the Commonwealth time. An attempt was made in 1653 to alter them. Banns were to be published either at Church or in the nearest market town on three market days, after this the marriage was to take place before a justice of peace. Many entries of marriages of this kind are to be found in our parochial registers. English was made the language of the law in 1650, but Latin was restored to the place of honour it had so long held, when the Restoration took place. Cock-Fighting in Scotland. It is highly probable that the Romans introduced cock-fighting into this country. It is generally believed that the sport was made popular by Themistocles. On one occasion he saw two cocks fighting, and their courage greatly impressed him, and he felt such exhibitions might teach a useful lesson of bravery to those who witnessed them. Periodical contests were exhibited, and were popular amongst the Greeks and Romans and with other nations, and were much appreciated by a large section of the inhabitants of this land. In "Bygone England," by William Andrews, F.R.H.S. (London 1892), will be found a long account of "Fighting-Cocks in Schools." One of the earliest accounts of the pastime in England, says Mr. Andrews, occurs in a "Description of the City of London," by William Fitzstephen, who wrote in the reign of Henry II., and died in the year 1191. He records that it was the annual custom on Shrove Tuesday for the boys to bring their game cocks to the schools, to turn the schoolrooms into cockpits, the masters and pupils spending the morning witnessing the birds fighting. Old town accounts contain many references to this custom, for example at Congleton, Cheshire, is the following item:-- "1601. Payd John Wagge for dressynge the schoolhouse at the great [Congleton] cockfyghte." £0 0s. 4d. Hugh Miller, the famous geologist, who was born in the year 1802, in his popular volume "My Schools and Schoolmasters," gives a graphic account of that amusement in the Cromarty grammar school where he received his education. "The school," says Miller, "like almost all other grammar schools of the period in Scotland, had its yearly cock-fight, preceded by two holidays and a half, during which the boys occupied themselves in collecting and bringing up the cocks. And such was the array of fighting birds mustered on the occasion, that the day of the festival from morning till night used to be spent in fighting out the battle. For weeks after it had passed, the school floor continued to retain its deeply stained blotches of blood, and the boys would be full of exciting narratives regarding the glories of gallant birds who had continued to fight until their eyes had been pecked out; or who in the moment of victory, had dropped dead in the middle of the cock-pit." Miller at some length denounces the cruel sport. In England cock-fighting is prohibited by statute 12 and 13 Vict. 3, 92, under which every person who shall in any manner encourage, aid, or assist at the fighting or baiting of any bull, bear, badger, dog, cock, or other animal, shall forfeit and pay a penalty not exceeding £5 for every such offence. In Scotland it was not illegal until quite recently. An act was passed in 1850 known as the "Cruelty to Animals (Scotland) Act," but the wording of the statute was found not to include the game or fighting-cock. The sport became popular and the law could not touch those that took part in the cruel amusement. It was felt to be a national scandal, and to prevent it, a short statute was passed on 30th May, 1895, whereby the definition of the word _animal_ in the 11th section was amended by adding at the end thereof the words "or any game or fighting-cock, or other domestic fowl or bird." Mr. Robert Bird, the genial and gifted author of "Law Lyrics," a volume which has been warmly welcomed by the public and the press, has made cock-fighting the subject of a clever poem. COCKIELEERIE-LAW. BY ROBERT BIRD. _In Full Court, Edinburgh, 23rd December, 1892._ Six legal wigs, like well-plumed tappit hens, Sat brooding o'er a pair of fighting cocks; While lesser wigs, begowned, and brief in hand, Declaimed in flowing periods, of the fray, Like ancient bards, that wanted but their harps, Their wallets, ballad verse, and song, to make The very goose quills, sleeping on the bench, Awake! take sides and spill each other's ink. And as they spake, a legal fog dropt down Upon the learned six, and each beheld, In green mirage, born of the cloud of words, Two cocks, Game cocks, crop-combed, erect, and slim, With feathers dipped in crimson, gold, and blue, Frill-necked, with trailing wings and spurs of steel, That on each other flew and pecked and spurred, And spurred and pecked again, until the Court Reeked like a cock-pit, and the crowd of wigs,-- Of boyish idle wigs,--took bonnet shapes That hooded scowling brows of cursing men, Who laid their bets on this bird, and on that, As, with quick panting breath and beaks agape, They pranced, flew, fought, until the oaken bar Seemed spattered o'er with feathers and cock blood. At length one cock the other overthrew, And struck quick spurs into his quivering breast Until he died; then he, with croaking crow, Fell, wounded, bleeding, dying by his side Amid the applauding cheers of thirsty throats, Soon to be slaked with liquid bets, and so The battle ended, but the fog remained. A rustling of silk plumes upon the bench, Five wigs bent low, and thus great Solon spake-- "'Twas in Kilbarchan that this fight was fought, And straight the men who prompted it were ta'en, And jailed, and tried, and sentenced for the same; But now they seek release, and this their plea, That in the gracious Act which says that men Shall not treat brutes and beasts with cruelty, The name of "_Cock_" is absent; therefore they Claim full exemption for their brutish deeds, And we, vicegerents of our gentle Queen, With spectacle on nose, must well explore This vital point in _Cockieleerie-law_. The illumined page of history reveals Cock-fighting as an ancient royal sport. The Early Greeks and Romans in their day Found pastime sweet in setting cock on cock; The sage Themistocles took keen delight In battling fowls; while glorious Cæsar, too, Loved much to back his bird; and, furthermore, Marc Antony's gamecocks did always lose When pitted against Cæsar's fiercer breed. King Henry VIII., of sainted memory! At Whitehall had a special cock-pit built, Wherein his royal birds made lively sport For gentle dames and all his merry knights. The most accomplished scholar of his day, Squire Roger Ascham, tutor to Queen Bess, Much as he loved his books, loved cocks the more, And loved them most when victors in the fight. And last of all, that great and noble Duke, The conqueror of Blenheim, in game birds Found something that reminded him of self; And thus we see the fighting instinct strong In cocks, and other nobles of past time. "Game cocks, we find, from earliest Cockereldom, Delight in war, as dogs to bark and bite, And raining blows upon each other's ribs Do best fulfil their part of nature's plan, Which built them slim and bade them love the fray; And while we hope no preference here to show,-- 'Tis open question, whether rearing fowls To wring their necks, or match them in the pit, Does more exalt the brute or sink the man. "But here, the cocks were armed with spurs of steel, And 'tis a subtle matter, whether they With iron shod, or spurred with native horn, Do deal the deadliest blows in angry fray; And, while we have our own opinion strong! 'Tis not within our province to pronounce. "If it be wrong with steel to prick a fowl, What of the spurs with which hard riders goad The bleeding sides of horses in the race, Or in the steeplechase, or country hunt? And what of hares in coursing run to death? Of quivering foxes torn by yelling hounds? Of wheeling pigeons slaughtered for a prize? We make no mention of the common use, Of otter hunting, grouse and pheasant drives. And of the sport termed _noble_, where the stag Is forced upon the guns that lay him low. No doubt, two blacks can never make one white, Nor multiplying blacks turn black to grey; But if to brutalise mankind be thought amiss, Then there are other ways, than fighting cocks. "Still that's beside our purpose, which is this-- To scan the statute, microscope in hand, And note if in its sweep humane, we see A roosting place for fighting chanticleer. And there we find, or rather fail to find, The name of "Cock" among the saving list Of nineteen beasts protected by the law, Though thus the list concludes, "_and other kinds Of animals domestic_," or like words. Are we to find Game Cocks, domestic fowls? Are we to hold that birds, are animals? Our view is quite the contrary, or else There's not a beast, bird, fish, or insect but The term "domestic" would to them apply, And make it penal e'en to slay a louse. "And while, in other parts of this same Act, We find "Cock" followed by the general phrase, "_Or other kind of animal_," we hold It bears not on the matter now in hand, But only serves to show that Parliament, When brooding, clucking, hen-like, o'er this Act, Had Cocks well in their eye, and plainly did, Of purpose full, omit them from the list; And while bear-fights, bull-fights, dog-fights, and all Vile sports and brutish cruelty to beasts, The spirit and the letter of the law Do quite forbid, _unanimous we hold Cock-fighting is a lawful use of Cocks, And finding so we liberate these men_. "It will be said, this Statute has been read Reversely in our sister England, where It is the Charter of proud Chanticleer; But what of that? It alters not our mind! But only shews, that they, of feebler clay, Stick not at trifles, so the end be good, And let the heart o'erbeat the legal mind; While we, of sterner stuff, fail not to find Motes in the sunshine of their simple wits, And gnats to strain out of their cups of wine; For in the nice accomplishment and use Of splitting hairs, and weighing feathers small, Of riddling wisdom from a peck of words, We are more skilled, more subtle, more profound Than our legal brethren of the South." Whereat five horse-hair wigs again bowed down In low obeisance to the mighty sage, And straight the Court was cleared of cocks and men. Fatal Links. BY ERNEST H. RANN. A consideration of the detection of crime brings forcibly to the mind the fact that officers of law have frequently to depend for success on the accidental discovery of the most trifling items and incidents. Conversely the criminal section of the community who prey on the weakness or folly of their neighbours have to fear not only a knowledge of their principal movements, but the discovery of the connecting link which shall complete the chain of evidence against them. The deepest laid plot, the most cunning scheme, contains a flaw which may be fatal to their operations, to their liberty, and even their life, a flaw which no amount of previous examination may detect, a weakness which can rarely be adequately guarded against. Justice and the vindication of the law, therefore, depend largely on a proper regard being paid to minor occurrences, which at first sight would seem to have no bearing whatever on the particular case under consideration. The history of crime contains numberless instances where the criminal has been brought to justice through one or other of these causes--the presence of particular hairs or threads on his clothing or on the weapon used, the direction of certain cuts on the body of his victim, the possession of trifling articles. At other times dreams have played no inconsiderable part in the vindication of the law, which has also been aided by supernatural visitants, or by the self-consciousness of the criminal. It would be impossible in a short article like the present to offer a full list of cases of this description, but a few typical instances may be taken with the object of showing how crimes, long hidden, have been discovered in the most remarkable manner. Probably the best example occurred at Augsburg, in 1821. A woman named Maria Anna Holzmann lived in a house in the town belonging to one Sticht. Her means only permitted her to occupy a few of the rooms, and the remaining parts of the premises were let to lodgers, among whom were George Rauschmaier and Joseph Steiner. On Good Friday, April 20th, Holzmann disappeared. She had not given notice of her intended departure, and nothing was known of it until some days later when Rauschmaier and Steiner also left the premises, saying that their landlady had previously quitted the house, leaving them in possession of her keys. This information, however, was not given to the police until May 17th. In the meantime Holzmann's relatives had become apprehensive of her safety, and being reluctantly forced to the conclusion that foul play had befallen her, they decided to take an inventory of her property, as it was known that, although in humble circumstances, the woman had managed by care and economy to amass considerable wealth. It was found, however, that the greater part of her money and other valuables were missing. In spite of active enquiries no further action of importance in the matter was possible until the following January, when Theresa Belter, a washerwoman who also lived in the house, announced that she had found a thigh of a human body hidden in the loft. Further investigations revealed a leg and the other thigh in a heap of rubbish in a corner of the room, and between the chimney and the roof, a trunk without head or limbs was discovered. An old gown and a petticoat, identified as portions of the dress of Holzmann, were also brought to light, while search in Rauschmaier's room disclosed other parts of a woman's body. The head was missing, but when news of the unmistakeable crime was noised abroad, a neighbouring manufacturer stated that during the preceding year he had found a skull, still bearing portions of flesh and hair, in his factory weir, but had not considered the "find" worthy of preservation. There could be no doubt that Maria Anna Holzmann had been murdered, and the whole machinery of the law was put in motion to bring the criminals to justice. Suspicion fastened itself strongly upon the two men, Rauschmaier and Steiner, but actual evidence against them, or indeed against anyone, was of the scantiest description until the separate pieces of the woman's body were placed together. While the left arm was being examined, a brass ring fell out of the bend of the elbow, whence it had evidently slipped from the finger of the murderer. Whose was the ring? then became the all important question. Rauschmaier was arrested and confessed that he had stolen and pawned several articles of Holzmann's property, but he sternly denied having committed the murder. The property, including a pair of ear-rings, had been recovered from the pawnbroker's, and these, with the brass ring, were laid before the accused. He had not wit enough to discern the trap laid for him, and immediately on seeing the ornaments, he exclaimed "The ear-rings and the gold and brass rings are mine. The brass ring I always wore until within four or five weeks after Easter, since when I have worn gold ones. The brass ring fits the little finger of my left hand; it slips on and off with ease." This foolish statement, and the place of the discovery of the ring, proved conclusively that Rauschmaier was the murderer of the unfortunate Holzmann. Subsequently he made full confession of the crime, stating that the brass ring must have slipped off while he was cutting up the body. He paid the penalty of his sins with death. The "Greenacre" case, which occurred in 1836, was similar to the foregoing in many of its details. In that year, portions of the mutilated trunk of an old woman named Brown were found in a house in Edgeware Road, wrapped in old rags and sacking. Subsequently the head was discovered in Regent's Canal, and the limbs in a drain in the neighbourhood of Camberwell. Comparison between the various portions left no doubt as to the identity of the deceased, and James Greenacre, whom Brown intended to marry, and to whose house she had gone with all her property, was accused of the murder. A woman named Gale with whom he lived was also charged with complicity in the deed. Once more suspicion, however strong, was insufficient to bring the crime right home to the accused, but the discovery, among Greenacre's property, of some rags corresponding with the pieces covering the mutilated remains, together with a few articles belonging to Brown, turned suspicion into actual proof. Greenacre was condemned to death, and his companion sentenced to transportation for life. The murder of William Begbie, at Edinburgh, is a remarkable case of the manner in which the author of a crime may remain long hidden, and only then be discovered by accident. Begbie was a bank porter, and on November 30th, 1806, he was employed to carry a parcel of notes, worth about £4,000, to one of the bank's customers. On his way he had to pass through a narrow, dark, and tortuous entry, and there he was brutally murdered and the notes were stolen. Although a knife, of a particular pattern, was left in the body, the murderer remained at large, and no clue to the terrible crime could be unearthed. Nine months later the bundle of notes, untouched, was found hidden in a wall, but long years passed before the mystery was completely solved. In 1822 a Bow Street runner named Denovan, while visiting Leith, chanced to fall into conversation with a sailor lately returned from captivity among the French. Speaking of old times the mariner accidentally mentioned that coming ashore one morning he had noticed a man like William Begbie, followed by a person dressed in black and of respectable demeanour. He lost sight of them for a few moments, but later on he was surprised to see the man in black rush out of the narrow entry with a bundle under his arm. On the next day he heard of the murder, and feeling confidant that he could throw light on the crime, he informed the mate of his vessel of what he had seen. Permission to go ashore was, however, refused. The vessel sailed, was captured by the French, and the sailor witness did not recover his liberty for fifteen years. Denovan set to work with this important clue, and enquiries proved that the man in black was no other than a notorious criminal named Mackoul, who had lived in Edinburgh in 1806. The law had claimed its own, however, previous to the sailor's disclosures. In 1820 Mackoul had suffered death for robbery; still, though he was beyond punishment for his old crime in Edinburgh, it was satisfactory to know that the mystery of the bank porter's death had at last been solved. Probably the most notorious case in English annals of murder discovered by extraordinary means is that of the killing of Daniel Clarke by Eugene Aram. The main facts of the case are so well known that it is scarcely necessary to enter into them here. Aram, assisted by a man named Houseman, it may be remembered, murdered Clarke for the sake of his wealth, and hid the body in St Robert's cave, near Knaresborough. There it remained from 1745 till 1759, when it was accidentally discovered by a labourer. Close examination led to the conclusion that the body, or rather the skeleton, was that of a murdered man, and when the mysterious and almost forgotten disappearance of Clarke was remembered, steps were taken to arrest his quondam companions Aram and Houseman. The latter turned king's evidence, and on his testimony Aram was executed, leaving a shady memory to be invested with undeserved romance by a poet and a novelist of the following century. Researches into modern criminal records also reveal a number of interesting cases similar to those cited above. A few years ago a Pole named Lipski was convicted in London of the murder of a woman. Strenuous efforts were made to obtain a pardon, on the ground that he had been wrongly convicted, but the solitary fact on which the Home Secretary decided to allow the law to take its course was that the door of the room had been locked in which the woman was found murdered, with Lipski himself hiding under the bed. And in tracing the Muswell Hill murder to its authors, the police were aided in their endeavours by the discovery of a common lantern which had been left on the scene of the crime. It was supposed to belong to a relative of one of the suspected men, and in order to verify this important link in the chain of evidence, a youthful agent of the detective force was employed to spin his top in front of the supposed owner's house, engage him in conversation if possible, and obtain evidence of the ownership of the lantern. The result was completely satisfactory; the suspicions of the police were confirmed, and the murderers brought to justice, mainly, it may be said, through the lantern's silent testimony. Another case of murder, which occurred in 1806, was brought home in a singular and complete manner. A Deptford gentleman, named Blight, was killed by a pistol-shot, and Sir Astley Cooper, from an examination of the victim's wounds and of the place of his murder, arrived at the opinion that none other than a left-handed man could have committed the crime. Acting on this conclusion the police arrested one Patch, who had been seen in the locality. When Patch was asked to hold up his hand to plead the indictment, he put up his left hand. The jury brought in a verdict of guilty, and before execution the criminal made full confession of his terrible deed. Dreams also have played no inconsiderable part in the discovery of crime. We have not space in the present article to notice all trials where dream-evidence has been offered to the court; a brief notice of those cases in which it has had an important bearing must suffice. The most notorious instance, of course, is that of Maria Martin, the victim of the Red Barn tragedy. After her departure from home, in order, as was supposed, to many William Corder, nothing, either by way of letters, or otherwise, was heard of her, except brief mention in Corder's communications. Nearly twelve months passed, when Mrs. Martin was startled and horrified by dreaming, on three successive nights, that Maria had been murdered and buried in the Red Barn. After much persuasion her husband and son consented to search the place, and there, in the exact spot indicated by Mrs. Martin as having been pointed out in her dreams, was found the body of her missing daughter, buried under the flooring in a sack. Mention may also be made of the case of Ulick Maguire, an Irish farmer, whose wife dreamed that her husband had been murdered by a disappointed lover of hers, named O'Flanagan. A few days later an idiot boy, who lived in the house, was heard shrieking in terror: "Shanus dhu more O'Flanagan (big black James) has kilt Ulick, and buried him under the new ditch at the back of the garden. I dhramed it last night, evry wurrd av it." The singular coincidence of the lad's dream with her own excited Mrs. Maguire's suspicions to the utmost, especially as her husband was away from home at the time. She ordered a search at the particular spot mentioned by the idiot boy, and there, to her horror, was found the body of Ulick, with the skull cleft in twain. Immediate request was made for "big black James." He had absconded and enlisted in the army, but on being charged with the crime he admitted his guilt, and suffered the penalty of death. In one instance, by far the most wonderful of its kind, the victim of a murder has appeared in successive dreams, and played the part of detective with admirable skill and effectiveness. A Grub Street victualler, named Stockton, was murdered towards the close of the seventeenth century. Three men were suspected of the crime, but neither of them could be discovered, and the affair seemed likely to become one of the mysteries of crime, when a Mrs. Greenwood dreamed that Stockton, who had been a neighbour during life, had taken her to a house in Thomas Street, telling her that his murderer was inside. On going to the house in person Mrs. Greenwood was told that Maynard, one of the suspected men, had gone abroad. The following night Stockton appeared and showed her the features of Maynard, and gave her such particulars of the man's habits and resorts that he was captured within a few hours. From Maynard the names of his partners in guilt, Bevel and Marsh, were obtained, but again the authorities were at fault, until Stockton indicated the house where Marsh visited, and the yard (afterwards discovered to be the yard of Marshalsea Prison) in which Bevel would be found. From a crowd of other prisoners Mrs. Greenwood identified Bevel, and shortly afterwards, through her strange testimony, Marsh also was arrested. Then, as an old chronicle of the case affirms, Stockton appeared for the last time, and thanked her for her good offices. We have given the story as it has come down through two centuries; a whole body of clergymen attested its accuracy at the time, and present-day enquirers would have great difficulty, we imagine, in conclusively proving that the murder of Stockton was traced by other and less extraordinary means. Closely allied to the evidence furnished by dreams, and indeed, as in the foregoing case of Stockton, sometimes barely distinguishable from it, is that offered by ghosts, actually seen by witnesses in a waking, but hallucinatory, state. Such evidence would scarcely be admissable in modern courts of law, but in past ages it was freely employed, and has served to bring criminals to the gallows. It must be admitted that the other testimony against the accused was strong, but in numerous instances ghosts have been instrumental in putting the officials on to a clue or track which they would most likely never have discovered by their own unaided efforts. In his "History of Durham," Surtees mentions the case of Anne Walker, who lived in 1630, and had become engaged in an intrigue with a relative of the same name. The girl was placed for a time under the care of a friend in a neighbouring village, but one night she was removed from there by Walker and a man named Sharp. From that date no one saw her alive. A fortnight afterwards, Graime, a fuller, was terrified by the appearance in his mill of Anne Walker's ghost, "dishevelled, blood-stained, and with five wounds in her head." She told him the whole story of her murder; how Sharp had killed her with a collier's pick, and then thrown her body down a shaft. Graime hesitated to use this strangely acquired information. Apparently incensed at his delay, Anne Walker repeatedly appeared, and in order to rid himself of these visitations, the frightened fuller at length acquainted the authorities with his story. Immediate enquiry confirmed his statements in every particular. Walker and Sharp were arrested, charged with the murder of the girl, found guilty, and executed, though to the last they maintained their innocence of the crime. A case, somewhat similar, has occurred even in the present century, and in matter-of-fact, new world Australia, where visions might be expected to be few and far between. The friends of a well-to-do settler near Sydney were surprised to hear from his steward that he had been suddenly called to England on important legal business. Remembering the vast wealth of the man, and the necessity for precautions in regard to it, they accepted the statement, and also recognised the steward's control of the estate during his master's absence. What was the astonishment, however, of one of these friends, when on riding over the estate he saw the owner, whom he thought to be in England, sitting on a neighbouring stile? The figure looked at him silently and sorrowfully, then walked towards a pond and disappeared. Drags were procured and the water searched, when the body of the absent owner was brought to the surface. Confronted with the corpse the steward confessed that he had murdered his master at the identical stile on which the ghost had sat. Pierre le Loyer, a French writer on law and the supernatural, mentions in his "Discours des Spectres," the case of a man who mysteriously vanished, having, as was supposed, been murdered. A few weeks later the ghost of the absentee appeared to his brother, took him to a lonely spot, and there pointed out where he had been murdered and buried by his own wife and her lover. Enraged at this domestic perfidy and wickedness the brother denounced his sister-in-law, and on his testimony she was condemned to be strangled and her body afterwards burned. About half a century ago a peculiar case of fraud was disclosed by remarkable means during the hearing of a law-suit in Tuscany. The decision of the court turned on the point whether a certain word had been erased from a particular document of importance. Chemical processes were alleged to have been employed, and acting on scientific knowledge one of the lawyers proposed that the document should be heated, as thereby a slight difference of shade or colouring between the paper and the letters supposed to have been removed might become visible. Permission was given to try the experiment, and on the application of heat the important word in question immediately appeared, and the court gave a verdict in accordance with this ingeniously devised testimony. Since that time the progress and development of science have enabled criminal investigation to be conducted by methods which would otherwise be impossible, and with almost unerring certainty and decision. The microscope and the spectroscope have been employed in numerous cases of murder and forgery where less subtle means of discovery would have proved useless; chemical analysis has become an important agent of detection, while photography has also rendered signal service in the cause of justice. We may not have concerned ourselves with the numerous methods by which bank-note forgeries are detected; hitherto our references have been mainly to the more serious crime of murder, and with a few instances of this character brought to light through modern science our list must close. Although, generally speaking, the microscope cannot discern any difference between the blood of man and that of other mammalia, yet the merest examination suffices to show the difference between mammalian blood and that of birds, reptiles, or fishes. In the one case the red blood corpuscles are round, and without a nucleus; in the other they are oval and nucleated. On this fact the evidence for a prisoner at Chelmsford charged with murder was completely rebutted. Blood stains had been found on his clothes, which, according to his counsel, had been caused by chicken's blood. But the prosecution brought forward a microscopist, who stated that the blood stains were mammalian, and on this testimony the plea of the prisoner was rejected. In the following year, and at the same assizes, the testimony against a man charged with murder was strengthened by the microscopical discovery of cotton fibres on a certain weapon, which he was said to have used, while the murderers of a man who had been kicked to death were convicted on the evidence of two doctors, who found on the boots of the accused a number of hairs corresponding with the hair on the head of the victim. Evidence of this kind is becoming of extreme importance. Hardly a serious crime is investigated without the application of one or other of these scientific methods of detection, and with each success the career of the criminal becomes increasingly difficult and arduous, and his chances of success more remote. Of remarkable discoveries of crime the microscope, the camera, and the spectroscope furnish the most subtle instances, and it is quite possible that before long other methods of investigation, founded on the most recent scientific achievements, will also be brought into operation. The phonograph and the Röntgen rays are only waiting their turn to serve in the cause of justice. Post-Mortem Trials. BY GEORGE NEILSON. It might be thought that a man's death made an end of him, and that his mere body had no rights or duties except that of getting decently buried. The middle age had other ideas. The dead still had status and duties. Continental laws recognised acts of renunciation in which a widow laid the keys on her husband's corpse, or tapped his grave with the point of a halberd. The body of a murdered person, or, it might be his hand merely, might be carried before the judge to demand vengeance.[18] By English thirteenth century law[19] legal possession of real estate was thought to remain in a man, not until he died, but until his body was borne forth to burial. The dead might be a very potent witness, as shewn by the ordeal of bier-right,[20] a practice founded on the belief that the murderer's touch would cause the victim's wounds to bleed afresh. Thus variously qualified to act as witness or prosecutor as occasion required, it is not surprising to find the dead as defendant also. English history[21] remembers the strange scene enacted in the monastery of Caen in 1087, when William the Conqueror lay dead there, and the ceremonials of his interment were interrupted by a weird appeal. Ascelin, the son of Arthur, loudly claimed as his, neither sold nor given, the land on which the church stood, and, forbidding the burial, he appealed to the dead to do him justice. More than one[22] old English poem turned its plot round the ancient canon law, by which a burial might be delayed for debt. The dead was arrestable: a law afterwards set aside, "for death dissolved all things." But in more codes than one death did not dissolve liability for the consequences of high treason. In Scotland,[23] in the year 1320, at the "black parliament" of Scone, several Scotsmen were convicted of conspiracy against King Robert the Bruce. Most of them were drawn, hanged, and beheaded. But a Scottish historian of the time tells us that Roger of Mowbray, one of the accused, having died before his trial, "his body was carried to the place, convicted of conspiracy, and condemned to be drawn by horses, hung on the gallows, and beheaded." It is to the credit of Bruce that he did not allow the corporal part of the sentence to be carried out, although many entries in the charter rolls[24] shew that the consequent escheats of the traitor's lands served to reward the loyalty of others. His body convicted of conspiracy! How came this singular procedure into Scottish practice? In England, towards the close of the fourteenth century, although escheats were not less keenly looked after than in Scotland--and that sometimes in cases[25] where men had died unconvicted,--the purpose of attainder appears to have been effected without the expedient of calling the dead to the bar. The dead, however, was convicted. In the case of Robert Plesyngton,[26] for instance, in 1397, the judgment of Parliament bore an express conviction of treason, "_noun-obstant la mort de dit Roberd_." In 1400, John, Earl of Salisbury, challenged for treason by Lord Morley, was killed before the day appointed for the duel. The court not only adjudged him a traitor,[27] but on grounds eked out by Roman law subjected his sureties in costs to his accuser--said costs including the handsome fee of 100s. and twelve yards of scarlet cloth to the lawyer Adam of Usk.[28] In all features save perhaps that of the actual presence of the body in the trial, warrant can be found for the Scottish practice in Roman law. The offence of "majesty," or high treason, formed an exception to the great humane general rule that responsibility for crime ended with the criminal's breath. Under the Lex Julia[29] death was no defence to a charge of "majesty;" proceedings could be raised to stamp the dead man's name with the brand of treason; his kinsmen might if they chose deny and defend; but if they failed to clear him his goods were confiscated and his memory damned. There is in the annals of Rome at least one instance[30] of a death-sentence of this sort pronounced after the accused was in his grave. Nor was its scope confined absolutely to high treason. The Church had a quiet way of appropriating tit-bits of barbaric policy for pious uses. The Emperor Theodosius[31] said that the inquisition for heresy ought to extend to death itself; and as in the crime of majesty, so in cases of heresy, it should be lawful to accuse the memory of the dead. The Popes endorsed the analogy,[32] for heretics had goods, which sometimes were worth forfeiting. The spiritual authority however was of more moment. The Church claimed the power to bind and loose even after death,[33] and a Welsh twelfth century bishop did not stand alone when he carried it so far as to scourge the body of a king who had died excommunicate.[34] On the same principle dead heretics--dead before sentence of heresy--were burnt.[35] It was by a close following up of Roman jurisprudence, with, peradventure, some added light from the law and practice of the Church, that the French devised their _procés au cadavre_,[36] by which the memory of a dead traitor was attacked. Its special application was to lesemajesty described as divine and human, the former an elastic term covering offences against God and religion. Allied to this latter category, though not exactly of it, was the mortal sin of suicide. Self-slaughter was so deeply abhorrent to mediæval thought as not only to be reckoned more culpable, but to call for more shameful punishment, than almost any other crime. So coupling the traitor and the self-slayer in the same detestation, the law assailed both by the same strange post-mortem process, and (by methods of reasoning which Voltaire was one of the first to ridicule) consigned their souls to perdition, their memories to infamy, and their bodies to the gibbet.[37] The treatment of the suicide was peculiar in its refinements of symbolic shame. The body was, by the customary law (for example, of Beaumont[38]), to be drawn to the gibbet as cruelly as possible, _pour monstrer l'experience aux aultres_. The very door-step of the house in which he lay was to be torn up, for the dead man was not worthy to pass over it. Impalement, transfixture by a stake, though well enough known on the continent as a punishment of the living, became there and in England alike, the special doom of the suicide. Yet the _procés au cadavre_ had no footing in English law, and although it was already in 1320 received in Scotland, we shall find reason for thinking it not wholly welcome. After the trial in 1320 before alluded to, the records in Scotland are silent for over two centuries, and it is not until 1540 that the process is heard of again. In that year[39] the heirs of one Robert Leslie were summoned to the court of parliament to hear his name and memory "delete and extinct," for certain points and crimes of lesemajesty, and his lands and goods forfeited to the king. Legal authorities,[40] obviously forgetful of the fourteenth century instance, follow one another in the mistake of regarding Leslie's as the first of its kind. The legality of the procedure was called in question at the time. Indeed, so loud was the murmur that it can still be heard in the act passed to put it to silence. "It is murmurit," says the enactment, "that it is ane noveltie to rais summondis and move sic ane actioun aganis ane persoun that is deide, howbeit the commoun law directly providis the samin."[41] The three estates of parliament therefore on the motion of the lord advocate, declared unanimously "all in ane voce, but[42] variance or discrepance," that the cause was just and conform to common law. In another case of the following year[43] the charge and judgment were enrolled in the Acts of Parliament. The widow and the heir of the late James Colville were summoned "to see and hear that the said deceased James, whilst he lived had committed the crime of lesemajesty." The deliverance of parliament as tribunal was by its terms an actual sentence upon the dead--that the deceased James "hes incurrit the panis of crime of lesemajeste" for which causes the court decerned "the memoure of the said umquhile James to be deleit," and his possessions confiscated to the crown. Parliament which had unanimously voted the procedure well based in law, found that it was dangerous. It was necessary to restrict its scope. In 1542, it is on parliamentary record[44] that "the lordis thinkis the said act [_i.e._, of 1540], ower generale and prejudiciale to all the barions of this realme." This would never do:--an act prejudicial to the barons! So it became statute law in 1542, that it should apply only to cases of grave treason, public and notorious during the offender's life, and that prosecution for the future must be raised within five years after the traitor's death. It was a reasonable restraint, not always observed. During the reigns of Mary and James VI. a number of trials occurred in which this singular process was resorted to, and in some, if not all, of which the body of the dead appeared at the bar. Occasionally it was embalmed for the purpose.[45] It had been a part of the border code, prevalent on the marches of England and Scotland, that an accused should, although dead, be brought to the place of judgment in person. In 1249, the marchmen of both realms had declared the law in that sense. They said that, in any plea touching life and limb, if the defendant died the body of him should be carried to the march on the day and to the place fixed between the parties, because--concludes this remarkable provision[46]--"no man can excuse himself by death." And in the end of the sixteenth century the borderers had not forgotten the tradition their forefathers had inherited in the thirteenth, for in 1597, when Scotsmen and Englishmen were in fulfilment of their treaty obligations presenting their promised pledges, the custom was scrupulously observed on the English side. All were there,--all, though all included one that was no more.[47] "Thoughe one of the nomber were dead, yet was he brought and presented at this place." They evidently believed on the borders, which Sir Robert Cary with some reason called[48] an "uncristned cuntry," that a man could best prove that he was dead by attendance in person. In trials for treason this principle was pushed in some instances to strange extremes. Probably one underlying reason of this, at a date so late, was to make sure that no formality should be lacking to make the forfeiture effective. But the main reason one must believe lay in its being a traditional observance. In the trial in 1600, of the Earl of Gowrie and his brother for an alleged attempt on the king's life, the privy council on the preamble[49] that it was necessary to have their corpses kept and preserved unburied, issued an act to that effect, and the treasurer's accounts contain an entry "for transporting of the corpis of Gowrie and his brother." Their bodies were accordingly produced at the trial, and the sentence which pronounced them guilty of treason and lesemajesty during their lifetime, declared[50] their name, memory, and dignity extinguished, and ordained that "the dead bodeis of the saidis Treatouris," should be hanged, quartered, and gibbetted. Their "twa hedis," a grim diarist[51] tells, were set upon the tolbooth, "thair to stand quhill[52] the wind blaw thame away." The last case[53] in the annals, in which this revolting Scottish "practick" was put into effect, occurred in 1609. Robert Logan, of Restalrig, had been nearly three years in his grave when it was given out that he had been a party to the alleged Gowrie conspiracy against King James. A process[54] was at once taken in hand to proscribe his memory and escheat his property. As death was no excuse, neither was burial; and the ghastly form was gone through of exhuming the bones for presentation at the trial. It was a case plainly within the exception provided for in the act of 1542, for the man was not "notourly" a traitor, he had died in repute of loyalty: but the Crown was eager for a conviction. Much incredulity had been rife with regard to the Gowrie conspiracy. The evidences now adduced were--on the surface at any rate, although, perhaps, as many critics still think, on the surface only,--circumstantial and strong. The prosecution was therefore keenly pressed, and the reluctance of some of the judges overcome. A jocular jurist-commentator on these post-mortem trials, has remarked[55] that the bones of a traitor could neither plead defences, nor cross-question witnesses. But in the dawn of the seventeenth century they could turn the sympathy of the court against the charge, as it appears they did in Logan's case. The proofs, however, looked overwhelming, and the forfeiture was carried without a dissenting voice from the bench--from the bench, because it was, as all Scots treason-trials then were, a trial by judges only, not by judge and jury. Logan's memory was declared extinct and abolished, and his possessions forfeited. The judgment, however, wreaked no vengeance on the exhumed remains. Humanity was asserting itself even in the trial of the dead, and that institution itself was doomed. Although in disuse ever after, it did not disappear from the theory of law until 1708, when the act 7 Anne, chapter 21, prescribing jury-trial for treason, assimilated the Scots law on the subject to that of England, and thus brought to an unregretted end one of the most gruesome of legal traditions. Island Laws. BY CUMING WALTERS. A very curious and interesting phase of self-government is that which is supplied by the independent legal system established in various small islands in the United Kingdom. It is amusing to notice these little communities on rocky islets tenaciously preserving their ancient privileges, and revelling in the knowledge that they have a code of their own by no means in harmony with the statute law of the country of which they are an insignificant part. The tribunals and the legal processes in the Channel Islands, in the Scilly Islands, in the Isle of Man, and even in some of the smaller islands round the English coast, differ entirely from those established in the motherland; and any suggestion of change is warmly resented. In many cases it has not, of course, been worth while to insist on reform, inasmuch as the islands are inhabited only by a few families, who may be left in peace to settle their own differences if any occur. There are a great many scattered islets about the sinuous line of Irish coast, very few of which are ever visited by strangers. The conditions of life in these isolated places are seldom investigated, and yet we find there are some remarkable survivals of old customs and relics of ancient laws. The people are independent, because they feel they are totally separated from the mainland, and possess neither the means nor the desire to cross over to it. They are in many respects a race by themselves, and their attachment to their little homes of rock is such that one of their severest punishments for offenders is to transport them to Ireland. Such an island is Raghlin, or Rathlin, six miles distant from the north-west of Antrim, but might be six hundred miles, judging by the slight intercourse the handful of inhabitants has with the larger world. Another such island is Tory, ten miles from the Donegal coast, where up to a few years ago the dwellers were unacquainted with any other law than that of the Brehon code. A visitor in 1834 found them choosing their own judge, and yielding ready obedience to mandates "issued from a throne of turf." In this case, and in the case of the Cape Clear islanders, it was found that the threat of banishment to the mainland was severe enough to prevent serious crime. These feelings probably have been modified in more recent times, yet the intensity of the attachment of islanders to their native rock is one of the ineradicable characteristics which account for the sturdy independence manifested in their laws and customs. Their little homes are miniature worlds which they prefer to govern themselves in their own way. We may take the Scillies as a favourable example, where the natives cling to the system of civil government by twelve principal inhabitants forming a Court presided over by a military officer. The Court is held every month, and it has jurisdiction in civil suits and minor causes. The Sheriff for Cornwall has, or, at all events, had, no jurisdiction in the islands, though persons prosecuted for felonies (which are extremely rare) have to be relegated to the Assizes at Launceston. The patriarchal system has always been much in evidence in the small Scotch islands, which, for the most part, are the possessions of the descendants of feudal chieftains. Dr. Johnson adverted to this fact on the occasion of his famous journey in the North:--"Many of the smaller islands have no legal officers within them. I once asked, if a crime should be committed, by what authority the offender could be seized, and was told that the laird would exert his right; a right which he must now usurp, but which merely necessity must vindicate, and which is therefore yet exercised in lower degrees by some of the proprietors when legal process cannot be obtained." But after observing how the system operated, Dr. Johnson freely admitted that when the lairds were men of knowledge and virtue, the convenience of a domestic judicature was great. Owing to the remoteness of some of the islands and the difficulty of gaining access to others, it was scarcely possible to bring them under the common law, and we find that in some instances the proprietors were allowed to act as magistrates by the Lord-Lieutenant's commission. Some of the old lairds had a very effective but unjudicial method of enforcing their laws. Lord Seaforth, High Chief of Kintail, was anxious to abolish a very odious custom of woman-servitude which prevailed in the island of Lewis. The men were wont to use the women as cattle, compelling them to draw boats like horses, and, among other things, to carry men across the deep and dangerous fords on their backs. This practice greatly disgusted Lord Seaforth, who found, however, that it was one particularly hard to check. He arrived one day on horseback at a stream which a peasant was contentedly crossing, mounted on a woman's shoulders. When the middle of the stream was reached, the laird urged his horse forward, and came up with the couple, when by vigorously laying his whip about the back of the man, he compelled him to dismount, and wade as best he could to the opposite bank. This practical indication of the laird's wishes aided considerably in producing a change. The Scotch islanders are a law-abiding people, and patriarchal government sufficed. It was recorded of the inhabitants of Skye that, during a period of unusual distress and semi-starvation, not a single sheep was stolen. So keen is the sense of propriety in that island that a whole family has been known to slink away, unable to bear the disgrace brought upon them by an individual delinquent. Orkney and Shetland once possessed all the characteristics of a separate kingdom, the laws of no other countries being imposed upon them. There was none to dispute the laird's right, and legal administration was entirely in his hands, except for the period that the islands were placed under episcopal rule. It is worth noting that the most famous of the governing bishops, Robert Reid (_tempus_ 1540), also filled the high office of President of the Court of Session at Edinburgh, and he and his successors are said to have ruled with conspicuous mildness and equity. We may now turn to one or two English islands before devoting attention to the most important examples of all--those supplied by the Isle of Man and the Channel Islands. The Isle of Wight is only regarded as "separate" from Hampshire for one legal purpose, so far as I have been able to ascertain. It is part of the "county of Southampton" for all purposes except the land-tax payment: for this it has a separate liability. But the land-tax divisions are the most irregular, and the least uniform of any legal divisions in the country, and it is therefore not surprising that the Isle of Wight should in this respect be subject to peculiar usage. Purbeck is one of those "isles" in England which now depend more upon tradition for their designation, than natural accordance with the geographical definition. What is remarkable is that these "isles"--such as the Isle of Purbeck, the Isle of Ely, the Isle of Glastonbury, and the Isle of Meare--nearly all have certain well-established and recognised laws of their own for the little communities which dwell within their borders. The quarrymen of Purbeck consider themselves a race apart, and their guild is one of the closest and strictest character. Their homage is paid exclusively to the lord of the manor, and the "Marblers" claim to have received a special charter from King Edward. On Shrove Tuesday they elect their officers, and celebrate the occasion by kicking a football round the boundaries. One ancient custom observed on these occasions is to carry a pound of pepper to the lord of the manor, as an acknowledgement to him in respect to a "right of way." Until comparatively recent times the government of the island was patriarchal in character. The Isle of Glastonbury had its "House of Twelve Hides" for the trial of petty cases in the locality, and tradition reports that unusually large dungeons were prepared for the immuring of those who offended in the renowned Avalonian isle. The Isle of Man, when subject to the Kings of Norway, was a subordinate feudatory kingdom. It afterwards came under the dominion of the English Kings, John and Henry III., but passed afterwards to the Scotch. Henry IV. eventually claimed the little isle, and disposed of it to the Earl of Northumberland, but upon this famous nobleman's attainder it went to Sir John de Stanley. Its government seemed destined to be unsettled, however, and though the title of king was renounced by the possessors of the land, they maintained supreme and sovereign authority as to legal process. In the Isle of Man no English writ could be served, and as a result it became infested with smugglers and outlaws. This was unsatisfactory, and, in 1765, the interest of the proprietor was purchased, in order that the island should be subject to the regulations of the British excise and customs. According to Blackstone, than whom there could be no greater authority, the Isle of Man is "a distinct territory from England, and is not governed by our laws; neither doth an Act of Parliament extend to it unless it be particularly named therein." It is consequently a convenient refuge for debtors and outlaws, while its own roundabout and antiquated methods of procedure have been found to favour the criminal rather than to aid prosecutors and complainants. Perhaps this was never more vividly illustrated than in the recent case of the murderer Cooper, who profited by the cumbrous and lenient processes of Manx law to the extent of getting an atrocious crime reduced to manslaughter. The laws have often been amended. Prior to 1417 they were "locked up in the breasts of the Deemsters," but Sir John Stanley found that so much injustice was being done under the pretence of law, that he ordered a promulgation to be made. But "breast laws" continued to be administered for another two centuries, until Lord Strange, in 1636, commanded that the Deemsters should "set down in writing, and certify what these breast laws are." In 1777, and also in 1813, the laws of the island were again amended, and every criminal was allowed three separate and distinct trials before different bodies. First the High Bailiff hears his case, then the Deemster and six jurymen, and, thirdly, if he has been committed for trial, he is brought before the Governor and the Deemsters. By the time the case gets to the final court it has usually been "whittled down" to the smallest possible proportions, and doubts have often been raised whether justice is not marred by misplaced and unwarranted lenity. Another strange practice is that the Manx advocates combine the parts of barrister and attorney. The law is hard upon debtors, who can be lodged as prisoners in Castle Rushen, if it is suspected that they are about to leave the island; but there are no County Courts. On the other hand, there are Courts of Law of almost bewildering variety--the Chancery Court, the Admiralty, the General Gaol Delivery, the Exchequer, the Ecclesiastical, the Common Law, the two Deemsters' Courts for the north and south of the island, the Seneschal's Court, the Consistorial, the Licensing, and the High Bailiff's. Each sheading, or subdivision, has its own coroner or sheriff, who can appoint a "lockman" as his deputy; and each parish (there are seventeen) has its own captain and a "sumner," whose duty in old times was to keep order in church and "beat all the doggs." Manx law had, and perhaps to some extent still has, a similar reputation either for allowing criminals in the island to escape easily, or for permitting English criminals to remain unpunished; hence the old ribald verse which represents the Devil singing-- "That little spot I cannot spare, For all my choicest friends are there." The Deemster's oath is a curiosity in itself:--"I do swear that I will execute the laws of the isle justly betwixt party and party as indifferently as the herring's backbone doth lie in the midst of the fish." Formerly the elective House of Keys possessed judicial as well as legislative functions, but this power was taken from it by the Act of 1866. Laws are initiated in the Council and the Tynwald Court, which promulgates them, consists of the members of the Council, and the House of Keys, who unite for the occasion. Tynwald Day as described by Mr. Hall Caine is an interesting, historic, but not an impressive ceremony. A thousand years ago the Norsemen established a form of government on the island, and every fifth of July the Manxman has his open-air Parliament for the promulgation of laws. But it is a gala day rather than a day of business. "Reluctantly I admit," writes Mr. Hall Caine, "that the proceedings were, in themselves, long, tiresome, ineffectual, formless, unimpressive, and unpicturesque. The senior Deemster, the amiable and venerable Sir Wm. Drinkwater, read the titles of the new laws in English. Then the coroner of the premier sheading, Glenfaba, recited the same titles in Manx. Hardly anybody heard them; hardly anybody listened." The Channel Islands were part of the Duchy of Normandy, and their laws are mostly the ducal customs as set forth in an ancient book known as "Le Grand Coustumier." Acts of the English Parliament do not apply to these Islands unless specifically mentioned, and all causes are determined by their own courts and officers. In Mr. Ansted's standard work on the Channel Islands (revised and edited by E. Toulmin Nicolle, 1893), a long chapter is devoted to the whole subject, and it is so complete and well expressed that I venture without much alteration of phraseology to summarise its leading points. Jersey and Guernsey have diverged greatly from each other in their legal customs, and it is also curious to find that each of the smaller islands possesses its own particular constitutions and courts. The rights and customs of the "States," which are an outcome of the mediæval Royal Court, have constantly undergone modification and have been remodelled, but they retain many of the ancient characteristics. The Bailiff (_Bailli_), or chief magistrate, is the first civil officer in each island, and usually retains his office for life. He presides at the Royal Court, takes the opinions of the elected Jurats, and when their voices are equal has a casting vote both in civil and criminal cases. The Bailiff is not required either in Jersey or Guernsey to have had a legal education. He is appointed by the Crown, but has usually held some position at the island bar. Formerly the advocates practising in the court of Jersey were nominated by the Bailiff, and were limited to six in number. In 1860, however, the bar was thrown open to every British subject who had been ten years resident in the island, and who was qualified by reason of being a member of the English bar, having taken a law degree at a French University, and having passed an examination in the island. In Guernsey the advocates are also notaries, and frequently hold agencies. The judicial and legislative powers in Jersey are to some extent separate, but in Guernsey they are intimately associated--a fact which accounts for much of the difference in custom in the two islands. The ancient Norman law contained in "Le Grand Coustumier" dates back to the thirteenth century, was badly revised in the time of Queen Elizabeth, and became the Code. Trial by jury was established in 1786, and the laws on the subject have undergone considerable change. There is a committing magistrate, and the trial takes place at the Criminal Assizes of which there are six in the year. The jury numbers twenty-four; if twenty agree, the verdict is taken; if less than twenty the prisoner is set free. Minor offences are referred to a court of Correctional Police presided over by a magistrate who is independent of the Royal Court. The same magistrate presides over the court for the recovery of small debts, and there is no appeal from his decision. Then there are subsidiary courts for various police purposes, while the Court of Héritage entertains suits regarding real estate. The arbitrary operation of these Courts may have very evil results, especially for strangers who are unlearned in the peculiarities of Jersey law. I find a striking example of this in a magazine of June 15th, 1861, in which a hard experience is detailed with comments which appear to be fully justified by the circumstances. The writer says:-- "Before leaving England I had had a serious quarrel with a former friend and medical attendant, and no long time elapsed after our arrival in the island, before this gentleman sent me in a bill of monstrous proportions--a true 'compte d'apothecaire' as the French express it. At that time I was quite ignorant of the singular constitution of Jersey law, and how it placed me in the power of any man who chose to sue me whether I owed him money or not. I wrote to the doctor, refusing to pay the full amount of his claim, and referring him to a solicitor in London. He was, however, better acquainted with the Jersey law than myself, as the result will show. Here, before proceeding with my story, I will enter into some explanation of the law of debtor and creditor as it exists in Jersey. This law enables the creditor to enforce his demands summarily, depriving the party sued of his liberty, and leaving him in gaol till the costs of his imprisonment have swelled the amount to be paid: and further, supposing the defendant ultimately gains his suit, and proves his non-liability, no damages for false imprisonment are obtainable. The law leaves him no remedy, for the plaintiff makes no affidavit; and a simple letter from England, requesting a Jersey advocate to enforce payment of a claim, is enough to cast the defendant at once into prison, prior to any judicial investigation into the merits of his case. "Thus, in Jersey, every man (unless he be a landed proprietor) is at the mercy of every other man, both in the island and out of it. In short, one man can arrest another simply by drawing up an imaginary account on a common bit of paper, and handing it to the nearest lawyer, who will send his clerk with the sheriff's man and imprison the unfortunate victim in default of immediate payment. What is worse still, an arrest can be carried into effect, by means of a simple letter sent through the post. The exception in favour of land-owners of course includes the owners of house property, an exception which mostly benefits Jersey-men, as few but natives possess property in the island. It is only a proprietor who must be sued _before_ he can be imprisoned. If the Jersey laws confined the persons merely of strangers sued by the inhabitants of the island, in the arbitrary manner described, the justice of such a practice might still be defended on the plea of preventing them from leaving the island; but no excuse can be found when the Jersey law is made an instrument in the hands of strangers, living out of the jurisdiction of the island, and when it is used to enforce payment of debts incurred in another place, and in which no inhabitant of the island is interested, and when (as sometimes happens) it is employed as a means of extortion. In the first case it can be urged that, at least, it gives protection to the islander, which may be all proper enough, though the system is liable to abuse. In the second, the injustice and folly of the law is flagrant. By what right or reason ought the Jersey code, without previous inquiry, to deprive one man of his liberty at the demand of another, when both are strangers, and when the dispute relates to matters wholly beyond its pale, and in reference to which it has no means of obtaining information on oath? Yet such is the case, and thus the Jersey law is converted into a mere tool of iniquity and oppression. In speaking of this strange anomaly in Jersey law, I am not referring to bills of exchange, or to securities of any sort, but merely to simple debts, free from any acknowledgment or signature whatever. In any other Court, such claims would not be entertained for a moment. Surely the law is barbarous enough for the people of Jersey, without its consequences being extended beyond its circumference. But, as matters stand at present, the case stands thus: A and B fall out together. Now B is a rogue. They go to law together, and B demands of A more than he is entitled to. The courts in England are about to decide upon the merits of the case. Meanwhile B learns that A is gone to Jersey for a short time on business, perhaps connected with this very affair, such, for instance, as looking up an important witness. What does B do? He immediately sends off a letter enclosing his little account to a Jersey lawyer, instructing him to demand payment or lock up A forthwith. The lawyer obeys, of course; A storms--protests--all in vain. He is incarcerated, and is told he may explain as much as he likes afterwards; but, in the meantime, must go to prison, or _pay_. At last poor A, whose liberty is important to him, wearied with the delays which it is the interest of the Jersey lawyers to raise in his suit for judgment, pays the demand into court (au greffe) to be adjudicated on--costs of law, costs of imprisonment and all. The latter item includes 10s. every time the prison door is opened to let him pass on his way to court--a journey he has too often to perform without much approach to a _dénoûment_, and whither he is obliged to go under escort like a criminal; and this process is repeated several times, without the cause even being called on for hearing. Worst of all, when A comes out, he has to decide upon the merits of the case. Meanwhile no remedy against B, who, of course, being satisfied, withdraws his suit at home." Another seeming anomalous process may be cited. An appeal lies from some of the small Courts to the full Court, or _Nombre Supérieur_, but the jurats who sit in the Court of First Instance are not debarred from sitting in the Full Court when an appeal from their own judgment is being heard! All the proceedings are carried on in the French language, which is again extremely inconvenient for the English residents. The Bailiff comments on the evidence and on the arguments of the pleaders, collects the opinion of the jurats, and delivers judgment. In Guernsey the decisions are given in private. "Pleadings in these courts are very simple," says Mr. Ansted. "The plaintiff must serve on the defendant a summons or declaration, setting forth the nature of his claim, and in some cases the reasons on which it is grounded are added. If not sufficiently definite the declaration is sent back by the Court for amendment. If the defendant means to plead any objections by way of demurrer or special plea, these are at once heard and disposed of. If the parties join issue on the merits of the case, the Court hears the parties, or their counsel, and decides. If the case be intricate the parties are sometimes sent before the Greffier--in Guernsey before one of the jurats,--who reports, condensing the matter in dispute, and presenting the points to the court for decision." Trial by jury does not exist in Guernsey. The court at Alderney is subordinate to that of Guernsey. The jurisdiction in matters of correctional police is final where the offence can be punished by a month's imprisonment or a fine not exceeding £5; otherwise it is referred to Guernsey for trial. The Court of Sark, which has undergone many strange vicissitudes since its institution in 1579, consists of the seneschal, or judge, the prévôt and the greffier, all appointed by the feudal lord, or seigneur. The seneschal is an absolute authority in small cases, but his right of punishment is limited to the narrow bounds of inflicting a fine of about four shillings, and of sentencing to three days' imprisonment. All cases demanding severer treatment are relegated to the Guernsey Courts. Enough has been said to show that Mr. Ansted was justified in declaring that though the islanders were unfitted by their habits and education for any radical change in their peculiar institutions, yet "the practice of the law courts both in Jersey and Guernsey has long been felt to be in many cases cumbrous, not to say objectionable. Indeed, where so much that is personal interferes in the administration of justice, and where personal and family influence cannot but be felt, it is not astonishing that reasonable complaints are sometimes heard." Three times during the present century Royal Commissions have enquired into Jersey law, but their recommendations have been systematically ignored. No remedies have been carried out, and the islanders cling with extraordinary pertinacity to customs which are notoriously abused and to priveleges which are opposed to fair-dealing. The Channel Islands and the Isle of Man are standing evidence of the danger incurred by such independence of legal authority as they have hitherto been permitted to enjoy. The Little Inns of Court. The origin of the decadent institutions located in certain grim and dreary-looking piles of building dotting the district of the Inns of Court proper, and known as the little Inns of Court, is involved in considerable obscurity. They appear to have originally held a similar position to the great seats of legal education as the halls of Oxford and Cambridge do to the Universities. But at the present time their relation to the Inns of Court proper is not very clear, and the uses they serve, otherwise than as residential chambers, are just as hard to discover. This state of mistiness concerning them has existed so long that no one now seems to know anything about them, and the evidence taken more than forty years ago by a Royal Commission did so little to clear away the dust and cobwebs hanging about them that they still remain, in the words of Lord Dundreary, "things that no fellow can understand." Lyon's Inn has since that time been swept away to make room for the new Courts of Law, without any person evincing the smallest interest in its fate. Concerning this institution all that could be learned by the Royal Commission was contained in the evidence of Timothy Tyrrell, who "believed" that it consisted of members or "ancients," he could not say which; he believed the terms were synonymous. There were then only himself and one other, and within his recollection there had never been more than five, and they had nothing to do beyond receiving the rents of the chambers. There were no students, and the only payment made on account of legal instruction was a sum of £7 13s. 4d. paid to the society of the Inner Temple for a reader; but there had been no reader since 1832. He had heard his father say that the reader "burlesqued the things so greatly" that the ancients were disgusted, and would not have another. There was a hall, but it was used only by a debating society; and there was a kitchen attached to it, but he had never heard of a library. New Inn appears to have been somewhat more alive than Lyon's, though it does not seem to have done any more to advance the cause of legal education. The property is held under the society of the Middle Temple, by a lease of three hundred years from 1744, at a rent of four pounds a year. Among the stipulations of the lease is one allowing the lessors to hold lectures in the hall, but none had been held since 1846, in consequence, it was believed, of the Middle Temple ceasing to send a reader. The lectures never numbered more than five or six in a year; and there is now no provision of any kind for legal education. Samuel Brown Jackson, who represented the inn before the Royal Commission, said he knew nothing concerning any ancient deeds or documents that would throw any light on the original constitution and functions of the body. If any there were, he "supposed" they were in the custody of the treasurer. The only source of income was the rents of chambers, which then amounted to between eighteen and nineteen hundred pounds a year; and the ancients have no duties beyond the administration of the funds. Concerning the origin of Clement's Inn, Thomas Gregory, the steward of the society, was unable to afford full information, but he had seen papers dating back to 1677, when there was a conveyance by Lord Clare to one Killett, followed by a Chancery suit between the latter and the principal and ancients of the society, which resulted in a decree under which the property so conveyed became vested in the inn. Some of the papers relating to the inn had been lost by fire, and "some of them," said the witness, "we can't read." The inn, he believed, was formerly a monastery, and took its name from St. Clement. It had once been in connection with the Inner Temple, but he could find no papers showing what were the relations between the two societies, "except," he added, "that a reader comes once a term, but that was dropped for twenty years--I think till about two or three years ago, and then we applied to them ourselves, and they knew nothing at all about it; the under-treasurer said he did not know anything about the reader, and had forgotten all about it." It was the custom for the Inner Temple to submit three names to the ancients; and, said the witness, "we chose one; but then they said that the gentleman was out of town, or away, and that there was no time to appoint another." But no great loss seems to have resulted thereby to the cause of legal education, for it appears that all a reader had ever done was to explain some recent Act of Parliament to the ancients and commoners, there being no students. The inn had no library and no chapel, but as a substitute for the latter had three pews in the neighbouring church of St. Clement, and also a vault, in which, said the witness, "the principals or ancients may be buried if they wish it." Some remarkable evidence was given concerning Staples Inn, and the more remarkable for being given by Edward Rowland Pickering, the author of a book on the subject, which publication one of the Commissioners had before him while the witness was under examination. "You state here," said the Commissioner, "that in the reign of Henry V., or before, the society probably became an Inn of Chancery, and that it is a society still possessing the manuscripts of its orders and constitutions." "I am afraid," replied the witness, "that the manuscript is lost. The principal has a set of chambers which were burnt down, and his servant and two children were burnt to death, seventy years ago; and I rather think that these manuscripts might be lost." Where the learned historian of the inn had obtained the materials for that work is a question which he does not appear to have been in a position to answer; for when asked whether he knew of any trace of a connection between the society and an Inn of Court, he replied, "Certainly, I should say not. It is sixty years since I was there, boy and all." A very strange answer considering the statement in his book. During the sixty years he had been connected or acquainted with the society, he had never heard of the existence of a reader, or of any association of the inn with legal education or legal pursuits. The only connection claimed for the inn by the principal, Andrew Snape Thorndike, was that, when a serjeant was called from Gray's Inn, that society invited the members of Staples Inn to breakfast. There is a singular provision respecting the tenure of chambers in this inn by the ancients. "A person," said this witness, "holds them for his own life, and though he may be seventy years of age, if he can come into the hall, he may surrender them to a very young man, and if that young man should live he may surrender them again at the same age." If a surrender is not made, the chambers revert to the society. Barnard's Inn is a very old one, and the property has been held on lease from the dean and chapter of Lincoln for more than three hundred years. The society consists of a principal, nine ancients, and five companions, which latter are chosen by the ancients; but we fail to gather from the evidence of Charles Edward Hunt, treasurer and secretary of the inn, by what principles the ancients are guided in the selection. We learn, however, that applications for admission by solicitors are not allowed. Such a thing had occurred once, but it was as long ago as 1827, and "of course," said the witness, "we refused him, and he applied to the court, and after some difficulty he got a rule _nisi_ for a mandamus. It came on to be tried before Lord Tenterden, and Lord Tenterden said it could not be granted; that we were a voluntary association, and the court had no jurisdiction." The applicant seems to have based his claim on the ground that Barnard's was an Inn of Chancery, and that, as a solicitor, he had a right to be admitted. The matter was scarcely worth contention, as the privileges of the companions are confined to dining in hall and the chance of being made an ancient, that favoured grade being entitled to "their dinners and some little fees." The books of the society showed no trace of there ever having been any students of law connected with the inn. "The oldest thing I find," said the witness, "is that a reader came occasionally from Gray's Inn to read; but what he read about, or who paid him, there is no minute whatever." He did not know when a reader last came from Gray's Inn; he thought it was about two hundred years ago. It only remains to be told of Barnard's Inn that it has not even a library; there had been a few books at one time, the witness told the Commission, but they were sold as useless! Concerning the remaining little inns--Clifford's, Symond's, and Furnival's--no evidence was taken. They appear to be merely residential chambers, much the same as some of those concerning which we have information in the report of the Royal Commission and the evidence given before it, and the chambers are far from being used exclusively by members of the legal profession. Nearly sixty years ago the present writer found a retired army officer occupying chambers in Clifford's, and on a later occasion made at Symond's Inn, the acquaintance of a curate who resided there with his wife and a young family! Concerning Furnival's Inn, it was incidentally stated by Michael Doyle, who represented Lincoln's Inn before the Royal Commission, that the latter society received £576 a year under a lease of the former property granted to the late Henry Peto for ninety-nine years, £500 being for rent, and the remainder in lieu of land tax. The witness was, however, unable to give any information as to the manner in which, or the date when, the property was acquired by Lincoln's Inn. The inquiry by the Royal Commission resulted in the recommendation of some very important changes in the constitution of the little Inns of Court and the administration of the several properties; but these, we learn, have been modified so much in their adoption as to have been of very little value. The societies have long outlived the purposes for which they were instituted, though their principals and officials seem to attach considerable importance to their continued existence. It is probable, however, that their _raison d'étre_ being gone, they will all sooner or later go the way of Lyon's Inn, and become things of the past. Obiter. BY GEORGE NEILSON. The claims of the legal profession to culture were cleverly belittled by Burns, when he made the New Brig of Ayr wax sarcastic over the town councillors of the burgh:-- "Men wha grew wise priggin owre hops an' raisins, Or gathered lib'ral views in Bonds and Seisins." Bonds and seisins are certainly not the happiest intellectual feeding ground. "I assure you," said John Riddell, a great peerage antiquary, "that to spend one's time in seeking for a name or a date in a bit of crabbed old writing does not improve the reasoning powers." Riddell was a keen critic of Cosmo Innes, who subsequently had the happiness of passing the comment upon Riddell's observation that "perhaps it is not in _reasoning_ that Mr. Riddell excels." Yet the annals of the law shew many splendid examples of the union of close textual study of manuscript, with an enlarged outlook on first principles and with keen critical insight. Perhaps Madox was a more permanently serviceable scholar than Selden. One can see from Coke's margins, his infinite superiority to Bacon in exact knowledge at first hand of older English law. But when all is said, we could have done much better without Coke and Madox than without Bacon or Selden. It is delightful to be able to appeal to Chaucer for perhaps the most emphatic compliment to law, in respect to its capacity for literature, that it has ever received. Amongst all the Canterbury pilgrims, there was no weightier personage than the Man of Law:-- "Nowher so bisy a man as he ther nas, And yet he semed bisier than he was. In termes hadde he caas and domes alle That from the tyme of King William were falle, Therto he coude endyte and make a thing Ther could no wight pinche at his wryting, And every statut coude he pleyn by rote." Yet it was this learned and successful counsel, alone of the party, who knew the poet's works through and through, and had the list of them at his finger-ends. Good Master Chaucer for this touch we offer hearty thanks! Was it in Herrick's mind when he penned his fine tribute to Selden? "I, who have favoured many, come to be Graced, now at last, or glorified by thee." * * * * * Wits and poets have had many hard things to say in jest and in earnest about the legal profession and its work. Herrick bracketed law and lawyers with diseases and doctors, in a fashion hinting that the relation of cause and effect existed between both pairs:-- "As many laws and lawyers do express, Nought but a kingdom's ill-affectedness. Even so those streets and houses do but show Store of diseases where physicians flow." * * * * * It was an old story this linking of the practitioners of law and medicine in one yoke of abuse. The reason given for both categories in early satire is sufficiently curious. It was because they took fees! Walter Map declared the Cistercian creed to be that no man could serve God without mammon. Ancient satire equally objected to the service of man, either legally or medically, under these conditions. "The Romaunt of the Rose" has the traditional refrain of other strictures in verse, when it declares that "Physiciens and advocates, Gon right by the same yates, _yates, gates_ They selle hir science for winning. _winning, gain_ * * * * * For they nil in no maner gree _no kind of good will_ Do right nought for charitee." The same idea, precisely, finds voice in the poem attributed to Walter Map, wherein the doctor and the lawyer come together under the lash, because no hope can be based upon either of them unless there be money in the case. "But if the marvellous man see coin, the very worst disease is quite curable, the very falsest cause just, praiseworthy, pious, true, and pleasing to God." Perhaps these ancient sarcasms were keener on the leech than the lawyer. "The Romaunt of the Rose" goes so far as to say that if the physicians had their way of it, "Everiche man shulde be seke, And though they dye, they set not a leke After: whan they the gold have take Ful litel care for hem they make. They wolde that fourty were seke at onis! Ye, two hundred in flesh and bonis! And yit two thousand as I gesse For to encresen her richesse." * * * * * No doubt the men of medicine would have been much more vulnerable on another line, for it was no satirist but a learned medical professor, Arnauld de Villeneuve, who, in the beginning of the fourteenth century, advised his students as follows:--"The seventh precaution," said he, "is of a general application. Suppose that you cannot understand the case of your patient, say to him with assurance that he hath an obstruction of the liver." No legal professor surely was ever guilty of the indiscretion of _saying_ such a thing as this! * * * * * The ineradicable public prejudice against legal charges as flagrantly exorbitant is only a modified form of an older idea exemplified above that lawyers should have no fees at all. And as to this day the plain man has never fully reconciled himself to the doctrine that the lawyer is only an agent, and not called upon to sit in the first instance in judgment on his client, so in the past the professional defence of a criminal appeared a very venal transaction. "Thow I have a man i-slawe, And forfetyd the kynges lawe I sal fyndyn a man of lawe Wyl takyn myn peny and let me goo." * * * * * How reprehensible a thing to take fees was long reckoned admits of curious illustration. "Before the end of the thirteenth century," says that never-failing authority, Pollock and Maitland's "History of English Law," "there already exists a legal profession, a class of men who make money by representing litigants before the courts and by giving legal advice. The evolution of this class has been slow, for it has been withstood by certain ancient principles." Amongst these retarding influences lay the half-religious scruple about the propriety of payment--men as usual swallowing the camel first and straining at the gnat afterwards. Of course the subject had to be illuminated by monkish tales and death-bed repentances. There was, according to the Carlisle friar who penned the "The Chronicle of Lanercost,"--writing under the year 1288,--a young clerk in the diocese of Glasgow, whose mind "was given rather to the court of the rich than to the cure of souls. He was called Adam Urri, and was laically learned in the laic laws, disregarding the commands of God against the Praecorialia [so in the printed text, but, query, Praetorialia?] of Ulpian. He used the statutes of the Emperor in litigating causes, for payment of money. But when he had grown old and famous in this his wickedness, and was striving by his astuteness to entangle the affairs of a poor little widow, the divine mercy laid hold on him, assailing his body with sudden infirmity, and bringing his mind to plead (_enarraret_) more for another life." Condemning utterly the lawyer's court, he turned over a new leaf, predicted the day of his own death, and died punctually conform to the prophecy, leaving an example unctuously used by the friar to teach future generations "how wide was the gulf betwixt the service of God and the vanity of this world." We shall not be far wrong in regarding, as of more historic interest, the indication of the immorality of fees, and the important reference to Ulpian as an authority in the _forum causidicorum_ of thirteenth century Scotland. * * * * * Amongst the amiable conceptions of the middle age was the notion that the Evil One often manifested a particular zeal against sin. He was regarded with a different eye from that with which we regard him, and he rewarded faith with actual appearances such as only spiritualists can now-a-days command. Some of them were not very engaging, however praiseworthy may have been their object and occasion. Simeon of Durham, an eminently respectable contemporary author, wrote of the death of King William Rufus in the year 1100 that the popular voice considered the wandering flight of Tyrell's arrow a token of the "virtue and vengeance of God." And he added that about that time the Devil had frequently shewn himself in the woods "and no wonder, because in those days law and justice were all but silent." The logic of this _because_, not apparent on the surface, becomes less obscure when it is remembered that in the mediæval devil the character of Arch-Enemy is so much subordinated to that of Arch-Avenger. * * * * * The direct relation of not only the Saints but of the Deity itself to human affairs was a conception so clear to the mediæval mind that it saw nothing irreverent in a title deed being taken in the Supreme name, or in marshalling "_Deus Omnipotens_" at the head of the list of witnesses to a charter. This anthropomorphic practice gave occasion to one of the sharpest of Walter Map's jokes against the Cistercians. Three abbots of that order petitioning on behalf of one of their number and his abbey for the restoration of certain lands by King Henry II. as having been injuriously taken away from the claimant's abbey, represented to the King in his court that for God's sake he ought to cause the lands to be restored and they assured him and gave him God himself as their guarantor (_fidejussorem_) that if he did, God would greatly increase his honour upon earth. King Henry found it difficult to resist the appeal thus made to him but called the Archdeacon Walter Map to advise. This he did well-knowing that this counsellor did not love the Cistercians, and that he might thus find a creditable way out of a tight corner. The Archdeacon was equal to the occasion. "My lord," said he to the King, "they offer you a guarantor; you should hear their guarantor speak for himself." "By the eyes of God," replied Henry, "it is just and conform to reason that guarantors themselves should be heard upon the matter of their guarantee." Then rising with a gentle smile (not a grin, expressly says Giraldus Cambrensis) the shrewd monarch retired leaving the disappointed abbots covered with confusion. * * * * * Of the many ties between literature and law, one, not by any means the least interesting on the list, is the quantity of legal citations, phrases, metaphors and analogies which got swept into the wide nets of the poets. Amongst such scraps there are few so successful and still fewer so pathetic as one in which a metrical historian, drawing near the close, both of his days and his chronicle, figured himself as summoned on short _induciæ_ at the instance of Old Age to appear at a court to answer serious charges, where no help was for him save through grace and the Virgin as his advocate. Elde me maistreis wyth hir brevis, _elde, age_ Ilke day me sare aggrevis, _brevis, writ_ Scho has me maid monitioune _ilke, each_ To se for a conclusioune _quhilk, which_ The quhilk behovis to be of det; _of det, of right_ Quhat term of tyme of that be set I can wyt it be na way, _wyt, know_ Bot weill I wate on schort delay At a court I mon appeire Fell accusationis thare til here Quhare na help thare is bot grace. _bot, without_ The maikless Madyn mon purchace _maikless, matchless_ That help; and to sauff my state _purchace, procure_ I haiff maid hir my advocate. _sauff, save_ Androw of Wyntoun's verse it must be owned was verse on the plane of a notary public, and oft the common form of legal writ supplied sorrily enough the deficiencies of his imagination. But here for once the simple dignity of the thought bore him up and carried him through. Index. Aberdeen, gipsies at, 175 Abjuring the realm, 15 Abjuration, 69 Abolishing right of Sanctuary, 16 Adultery, penalty of, 11 Africa, ordeal in, 24-25 Amphitheatre, sports of, 112 An eye for an eye, 137 Ancient tenures, 93-108 Andrews, William, Cock-Fighting, 196-200 Anglo-Saxon Church, 14 Aram, Eugene, 212 Ashford, Mary, 40-41 Asyla in Greece, 14 Axon, W. E. A., Sanctuaries, 13-22; Laws relating to the Gipsies, 165-178 Babylonia, law of, 3-4 Balance, ordeal of, 27 Barbarous Punishments, 132-148 Barnard's Inn, 263 Beetles, trial of, 157 Begbie, William, murder of, 210 Beverley, Sanctuary at, 19-20 Bible Law, 1-12 Bible, ordeal of the, 37 Bible, weighing against, 27 Bier, ordeal of, 36 Bird, Robert, Cockieleerie Law, 200-204 Biretta, 53 Black Book of Hereford, 101 Black Parliament, 225 Blood, laws written in, 135; stains, 222 Boiling to death, 135 Book of Common Prayer, abolished, 194 Borough English, 104-106 Breaking straws, 48; rods, 49 Buccleuch, Barons of, 107 Bull relating to English Sanctuaries, 15 Bull, trial of, 150 Burned alive, 134 Burgess, S., Bible Law, 1-12 Canning, Elizabeth, 172-173 Canon Law, 187, 225 Castles, a centre of power, 74 Cattle stealing, 74 Channel Islands, Laws of the, 242-243, 248-257 Charges, prejudice against, 271 Charles I., Trial of, 182 Chaucer's compliment to the law, 268 Cheltenham, Manor of, 94 Chemical test, 220 Christians, early punishment of, 137 Church and ordeals, 29 Clarke, Sidney W., Barbarous Punishments, 132-144 Clement's Inn, 260 Cock-Fighting in Scotland, 196-204 Cockieleerie Law, 200-204 Cock, tried for laying an egg, 154 Commonwealth Law and Lawyers, 178-196 Continental Feudalism, 77-82 Conveyancing Symbols, 50-51 Copyhold, 49, 83 Corsnedd, ordeal of, 35 Commandments, breaking, 3 Cross, ordeal of the 33 Crown, 56 Coventry Acts, 142-143 Court Baron, 84 Customary Court, 84 Crucifixion, 136 Dead bodies brought to place of judgment, 232 Debts, limitation of, 9 Declining knighthood, 63-64 Defilement, 8 Delivery of turf or twig, 50 Deposition of kings, 56 Devices of the Sixteenth Century Debtors, 161-164 Divine right of kings, 193 Dog carrying, 140 Dogs in recognition of tenure, 101 Dream evidence, 214-217 Dudley lands, 64 Durham Sanctuary, 17, 19 Escheats, 226 Emma, Queen, tried by ordeal, 30 Englishry, law of, 70 Executing gipsies, 167, 170 Failure to extripate gipsies from England, 170 Fatal Links, 205-223 Father, powers of, 9 Ferocity of forest laws, 119 Feudal lord, powers of the, 64 Feudal system, 58-62 Fining jurymen, 124 Fire ordeal, 28 Flagellation, 61 Flags, rendering for tenure, 101 Forests, great, 115-116 Forgery, punishments, 142 Fortune telling, 169 France, penal laws of, 140-141; Trials of animals in, 149-154 Frankalmoign, 103 Free alms, 103-104 Fridstools, 17, 20 Frost, Thomas, Trial by jury in Old Times, 122-131; Trials of animals, 149-160; Little Inns of Court, 258-266 Furnival's Inn, 265 Gavelkind, 106-107 Ghosts, 217-220 Gibbet, gipsy rescued from, 176 Gipsies, laws relating to the, 165-178 Glove, 92 Godiva story, 74 Grand Serjeantry, 100 Great Civil War, 179 Greenacre case, 209 Hampden, John, 182 Hanged, drawn, and quartered, 133-134 Hasp and staple symbol, 52-53 Hat as a symbol, 53-54 Hawaii, ordeals in, 25 Henry VIII., laws against gipsies, 169 Hereford Fair, 101 Heresy, 228 Heriots, 91-92 Herrick on lawyers, 269 High treason, trial for, 122-124; punishments for, 132-135 Hindoos, ordeals of the, 26-27 Holzmann, Maria Ann, murder of, 206-209 Homage, 53 Homicide, 11 Horse, trial of, 151 Hot iron, ordeal of, 27, 30, 31, 32 Howlett, England, the Manor and Manor Law, 83-94; Ancient Tenures, 95-108 Hugh of Avalon, 120 Ignorance, sin of, 7 Iniquities, legal, 145 Irish Island Laws, 238-239 Isle of Man, Laws of the, 243-247 Island Laws, 237-257 Jews, extortions of, 73 Jocular tenure, 102 King's power limited, 12 Knight, service of, 96 Lanercost, the chronicle of, 272 Law under the Feudal System, 58-82 Law and Medicine abused, 269-270 Laws of the Forest, 109-121 Laws relating to the Gipsies, 165-178 Left-handed murder, 214 Letters of IV. Forms, 163 Lesemajesty, crimes of, 229-231 Lincoln's Inn, 266 Lipski, 213 Literature and Law, 275 Little Inns of Court, 258-266 Lords, power of, 58 Lord Chief Justice Popham, stolen by gipsies, 170 Loss of right hand, 138 Lyon's Inn, 259 Macdonald, James C., Devices of the Sixteenth Century Debtors, 161-164 Magna Charta, 63, 98 Manchester, Sanctuary at, 15, 16, 17 Manor and Manor Law, 83-94 Manor, origin of, 88 Marriage in feudal times, 59 Marriage laws, altering, 195 Marrying to atone for violence, 64 Martin, Maria, 214 Middle Ages, ordeals of, 29 Military service, 59 Military punishments, 136 Money raised by marriage, 72 Mortal Combat, 37-41 Mosaic law, 3 Mutilation, a favourite mode of punishment, 141-144 Muswell Hill murder, 213 Neilson, George, on Symbols, 43-57; Post Mortem Trials, 224-236; Obiter, 267-276 New Inn, 259 New way of paying old debts, 163 Nimrod, 111 Norman forest laws, 117 Oath, refusal to bear witness of, 8; of fealty, 60 On Symbols, 43-57 Oppression of gipsies under Queen Elizabeth, 171 Ordeals, 24-42 Palace regulations, 138-140 Parricide, punishment for, 137 Paul's Cross, preaching at, 194 Peacock, Edward, Laws of the Forest, 109-121; Commonwealth Law and Lawyers, 179-196 Peine forte et dure, 145-148 Penal Code, English, 145 Penn and Mead, trial of, 125 Persecution of gipsies, 171 Plantations, gipsies sent to, 178 Plays acted by gipsies, 176 Pigs, trial of, 150, 151, 152, 153, 157 Pillory, 142, 144 Poison, 135, 138 Poison, ordeal, 28 Poisoning, punishment for, 135 Poor laws, 9 Post-Mortem Trials, 224-236 Prejudice against gipsies, 172 Protecting the church in war time, 102-103 Proverb, oldest, 111 Punishments under Saxons, 61 Quakers, trial of, 125-131 Rann, Ernest H., trials in superstitious ages, 22-42; Fatal Links, 205-223 Reasoning power, 267 Rebel Heads on City gates, 134 Refuge, cities of, 14 Regicides, 134 Robbing travellers in feudal times, 73-74 Robert de Belesone, cruel acts of, 65 Robert the Bruce, Conspiracy, 225 Rod in Scotland, 49 Roman Empire in its glory, 114 Rose Tenures, 102 Ruskin, Jno., on Coeur de Lion, 72 Sacrifice, laws relating to, 5-7 Sacrilege, 8 Sanctuaries, 13-22 Scilly Islands, laws of the, 239 Scoggan, Queen's jester, 163-164 Scotch Islands, laws of the, 239-242 Scotland, sanctuaries of, 21-22 Scott, John, of Edinburgh, 161-163 Scutage, 98 Self-slaughter, 229 Ship-money tax, 181 Shaving the head for theft, 69 Siamese, ordeals of the, 26 Silver spear, 55 Slavery, discharge from, 45 Slaves, ill treatment of, 8, 10; under the Saxons, 60 Slaying gipsies, 175-176 Sods offered at the altar, 48 Spindle on the altar, 51 Staff and baton, 50 Staples Inn, 262 Star Chamber, 124-125 Strangulation, punishment by, 136 Straws, breaking, 48 Stocks, 67 Switzerland, trials of animals in, 154 Symond's Inn, 265 Thornton, Abraham, 40-41 Towns amerced, 70 Traitors, exempted from the Sanctuary, 15 Treason, trials for, 233 Trial by Jury in old times, 122-131 Trials of Animals, 149-160 Trials in superstitious ages, 22-42 Tynwald Day, 247 Usury, law of, 9 Villeinage, 86 Violating the sanctuary, 14, 21 Wager of Battel, 37, 41 Walters, Cuming, Law under the Feudal system, 58-82; Island Laws, 237-257 Wand, 49 Welcoming gipsies to England, 168 Westminster, sanctuary of, 20 Whipping, 61; Post, 67 William I., Forest Laws of, 118; Burial of, 225 William the Red, Forest laws of, 119 Witchcraft, 144-45 Wollen Industry, protection of, 144 Women, free bench of, 93 Working of the sanctuary system, 16, 17 FOOTNOTES: [1] This and other documents have been collected by Mr. T. J. de' Massinghi, whose monagraph on "Sanctuaries" (Stafford, 1888) is the chief source of information on the subject. [2] See Andrews' "Old Church Lore," 1891, and the authorities there cited. [3] The material facts in this paper up to this point are derived from _Thevenin's Textes relatifs aux Institutions privées_ and _Du Cange art. investitura_. [4] Williams' "Real Property Law." [5] Williams' "Real Property Law." [6] Southey's Common Place Book, 4th Series, 1851, p. 175. [7] Chapter x., verses 8 and 9. [8] Ecl. II., line 62. [9] Constitutional History of England, I. Ed., Vol. I., p. 289. [10] The Lord Chief Justice, John Popham, who was born in 1531, is said to have been stolen when a child by the gipsies. They disfigured him and placed on his arm a cabalistic mark. Apparently it was a case of tattooing. But the story is discredited. [11] _Gaújo_ is the name given by the gipsies to all strangers who are not of the Romany race. [12] _Edition_ 1857, vol. i., p. 77. [13] Peacock. _Army Lists of Roundheads and Cavaliers_, 2nd edit., 1874, p. 21. [14] Wood, _Athenae Oxon_, sub nom. [15] John Loden Gollpried's _Kronyck_, vol. iv., p. 454. Van der Aa, _Biographisch Woordenboek_, sub voce. [16] Carlyle, _Letters and Speeches of Oliver Cromwell_, vol. i., p. 50. [17] Henry Scobell, _Acts and Ordinances_, 1645, chapter 57. [18] "Michelet's History of France," viii., ch. 1. "Cheruel's Dictionnaire des Institutions," art. "Cadavre." [19] "Pollock and Maitland's History of English Law," ii., 60. Bracton 51b, 262. [20] "Lea's Superstition and Force" (ed. 1892), 359-70. [21] "Roman de Rou," ii., 9320-40. [22] "Three Metrical Romances" (Camden Socy.), xxvi., 33. See "Decretals of Gregory," lib. ii., tit. 28, cap. 25, _qua fronte_; also "Lyndwood's Provinciale," p. 278. [23] "Bower's Scotichronicon," ii., 275. "Extracta e Cronicis," 150. "Scalacronica," 144. [24] "Robertson's Index," 5, 10, 12, 19, 20, 21. [25] "Rolls of Parliament," ii., 335. [26] "Rolls of Parliament," iii., 384. [27] "Rolls of Parliament," iii., 459. [28] "Chronicle of Adam of Usk," pp. 44, 45. [29] "Justinian's Institutes," iv., 18. "Digest," xlviii., 4, 11. "Code," ix., 8. [30] "Tacitus," xvi., 11. [31] "Code," i., 5, 4. [32] "Decretals of Gregory," v., 7, 10. [33] "Decretals of Gregory," v., 39, 28. "Lea's Studies in Church History," 264-66. [34] "Haddan and Stubbs's Councils," i., 393. "Lea's Studies," 384, 425. [35] "Lea's Chapters from the Religious History of Spain," 372, 492. [36] "Cheruel's Dictionnaire," and "Denisart's Collection de Decisions," art. "Lesemajeste, memoire, suicide." [37] For a curious English case of gibbetting a suicide in 1234, see "Maitland's Bracton's Note Book," 1114: compare "Bracton," fo. 150. [38] "La Loy de Beaumont" (Reims 1864), p. 241. [39] "Acts of Parliament, Scotland," ii., 356. [40] "Mackenzie's Criminal Law," i., 6, 21-2. "Hume's Law of Crimes," i., 539. "Pitcairn's Criminal Trials," ii., 278. "Riddell's Scottish Peerages," ii., 757-58. [41] "Acts Parl. Scot.," ii., 356. [42] But = without. [43] "Acts Parl. Scot.," ii., 369. [44] "Acts Parl. Scot.," ii., 415. [45] Case of Earl of Huntly in 1562. Tytler's "Hist. of Scotland," iii., 167. [46] "Acts Parl. Scot.," i., 415. [47] "Bain's Calendar of Border Papers," ii., 417. [48] "Border Papers," ii., 711. [49] "Pitcairn's Crim. Trials," ii., 233, 241. [50] Pitcairn, ii., 167-8. "Acts Parl. Scot.," iv., 199. [51] "Birrel," quoted in "Pitcairn," ii., 247. [52] _Quhill_, until. [53] For an example in 1603, that of Francis Mowbray, see "Pitcairn," ii., 406-9. [54] A full account of the trial is given in "Pitcairn," ii., 276-92. [55] Lord Hailes quoted in "Pitcairn," ii., 277. SOME RECENT BOOKS PUBLISHED BY WILLIAM ANDREWS & CO., 5, FARRINGDON AVENUE, LONDON, E.C. "Valuable and interesting."--_The Times._ "Readable as well as instructive."--_The Globe._ "A valuable addition to any library."--_Derbyshire Times._ The Bygone Series. 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32984	----	AN ESSAY ON THE TRIAL BY JURY. BY LYSANDER SPOONER. BOSTON: JOHN P. JEWETT AND COMPANY. CLEVELAND, OHIO: JEWETT, PROCTOR & WORTHINGTON. 1852. Entered according to Act of Congress, in the year 1852, by LYSANDER SPOONER, In the Clerk's Office of the District Court of Massachusetts. NOTICE TO ENGLISH PUBLISHERS. The author claims the copyright of this book in England, on Common Law principles, without regard to acts of parliament; and if the main principle of the book itself be true, viz., that no legislation, in conflict with the Common Law, is of any validity, his claim is a legal one. He forbids any one to reprint the book without his consent. Stereotyped by HOBART & ROBBINS; New England Type and Stereotype Foundery, BOSTON. NOTE. This volume, it is presumed by the author, gives what will generally be considered satisfactory evidence,--though not all the evidence,--of what the Common Law trial by jury really is. In a future volume, if it should be called for, it is designed to corroborate the grounds taken in this; give a concise view of the English constitution; show the unconstitutional character of the existing government in England, and the unconstitutional means by which the trial by jury has been broken down in practice; prove that, neither in England nor the United States, have legislatures ever been invested by the people with any authority to impair the powers, change the oaths, or (with few exceptions) abridge the jurisdiction, of juries, or select jurors on any other than Common Law principles; and, consequently, that, in both countries, legislation is still constitutionally subordinate to the discretion and consciences of Common Law juries, in all cases, both civil and criminal, in which juries sit. The same volume will probably also discuss several political and legal questions, which will naturally assume importance if the trial by jury should be reëstablished. CONTENTS. PAGE CHAPTER I. THE RIGHT OF JURIES TO JUDGE OF THE JUSTICE OF LAWS, 5 SECTION 1, 5 SECTION 2, 11 CHAPTER II. THE TRIAL BY JURY, AS DEFINED BY MAGNA CARTA, 20 SECTION 1. _The History of Magna Carta_, 20 SECTION 2. _The Language of Magna Carta_, 25 CHAPTER III. ADDITIONAL PROOFS OF THE RIGHTS AND DUTIES OF JURORS, 51 SECTION 1. _Weakness of the Regal Authority_, 51 SECTION 2. _The Ancient Common Law Juries were mere Courts of Conscience_, 63 SECTION 3. _The Oaths of Jurors_, 85 SECTION 4. _The Right of Jurors to fix the Sentence_, 91 SECTION 5. _The Oaths of Judges_, 98 SECTION 6. _The Coronation Oath_, 102 CHAPTER IV. THE RIGHTS AND DUTIES OF JURIES IN CIVIL SUITS, 110 CHAPTER V. OBJECTIONS ANSWERED, 128 CHAPTER VI. JURIES OF THE PRESENT DAY ILLEGAL, 142 CHAPTER VII. ILLEGAL JUDGES, 157 CHAPTER VIII. THE FREE ADMINISTRATION OF JUSTICE, 172 CHAPTER IX. THE CRIMINAL INTENT, 178 CHAPTER X. MORAL CONSIDERATIONS FOR JURORS, 189 CHAPTER XI. AUTHORITY OF MAGNA CARTA, 192 CHAPTER XII. LIMITATIONS IMPOSED UPON THE MAJORITY BY THE TRIAL BY JURY, 206 APPENDIX--TAXATION, 222 TRIAL BY JURY. CHAPTER I. THE RIGHT OF JURIES TO JUDGE OF THE JUSTICE OF LAWS. SECTION I. For more than six hundred years--that is, since Magna Carta, in 1215--there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; _but that it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws_. Unless such be the right and duty of jurors, it is plain that, instead of juries being a "palladium of liberty"--a barrier against the tyranny and oppression of the government--they are really mere tools in its hands, for carrying into execution any injustice and oppression it may desire to have executed. But for their right to judge of the law, _and the justice of the law_, juries would be no protection to an accused person, _even as to matters of fact_; for, if the government can dictate to a jury any law whatever, in a criminal case, it can certainly dictate to them the laws of evidence. That is, it can dictate what evidence is admissible, and what inadmissible, _and also what force or weight is to be given to the evidence admitted_. And if the government can thus dictate to a jury the laws of evidence, it can not only make it necessary for them to convict on a partial exhibition of the evidence rightfully pertaining to the case, but it can even require them to convict on any evidence whatever that it pleases to offer them. That the rights and duties of jurors must necessarily be such as are here claimed for them, will be evident when it is considered what the trial by jury is, and what is its object. _"The trial by jury," then, is a "trial by the country"--that is, by the people--as distinguished from a trial by the government._ It was anciently called "trial _per pais_"--that is, "trial by the country." And now, in every criminal trial, the jury are told that the accused "has, for trial, put himself upon the _country_; which _country_ you (the jury) are." _The object of this trial "by the country" or by the people, in preference to a trial by the government, is to guard against every species of oppression by the government. In order to effect this end, it is indispensable that the people, or "the country," judge of and determine their own liberties against the government; instead of the government's judging of and determining its own powers over the people. How is it possible that juries can do anything to protect the liberties of the people against the government, if they are not allowed to determine what those liberties are?_ Any government, that is its own judge of, and determines authoritatively for the people, what are its own powers over the people, is an absolute government of course. It has all the powers that it chooses to exercise. There is no other--or at least no more accurate--definition of a despotism than this. On the other hand, any people, that judge of, and determine authoritatively for the government, what are their own liberties against the government, of course retain all the liberties they wish to enjoy. _And this is freedom._ At least, it is freedom _to them_; because, although it may be theoretically imperfect, it, nevertheless, corresponds to _their_ highest notions of freedom. To secure this right of the people to judge of their own liberties against the government, the jurors are taken, (or must be, to make them lawful jurors,) from the body of the people, _by lot_, or by some process that precludes any previous knowledge, choice, or selection of them, on the part of the government. This is done to prevent the government's constituting a jury of its own partisans or friends; in other words, to prevent the government's _packing_ a jury, with a view to maintain its own laws, and accomplish its own purposes. It is supposed that, if twelve men be taken, _by lot_, from the mass of the people, without the possibility of any previous knowledge, choice, or selection of them, on the part of the government, the jury will be a fair epitome of "the country" at large, and not merely of the party or faction that sustain the measures of the government; that substantially all classes of opinions, prevailing among the people, will be represented in the jury; and especially that the opponents of the government, (if the government have any opponents,) will be represented there, as well as its friends; that the classes, who are oppressed by the laws of the government, (if any are thus oppressed,) will have their representatives in the jury, as well as those classes, who take sides with the oppressor--that is, with the government. It is fairly presumable that such a tribunal will agree to no conviction except such as _substantially the whole country_ would agree to, if they were present, taking part in the trial. A trial by such a tribunal is, therefore, in effect, "a trial by the country." In its results it probably comes as near to a trial by the _whole_ country, as any trial that it is practicable to have, without too great inconvenience and expense. And as unanimity is required for a conviction, it follows that no one can be convicted, except for the violation of such laws as substantially the whole country wish to have maintained. The government can enforce none of its laws, (by punishing offenders, through the verdicts of juries,) except such as substantially the whole people wish to have enforced. The government, therefore, consistently with the trial by jury, can exercise no powers over the people, (or, what is the same thing, over the accused person, who represents the rights of the people,) except such as substantially the whole people of the country consent that it may exercise. In such a trial, therefore, "the country," or the people, judge of and determine their own liberties against the government, instead of the government's judging of and determining its own powers over the people. But all this "trial by the country" would be no trial at all "by the country," but only a trial by the government, if the government could either declare who may, and who may not, be jurors, or could dictate to the jury anything whatever, either of law or evidence, that is of the essence of the trial. If the government may decide who may, and who may not, be jurors, it will of course select only its partisans, and those friendly to its measures. It may not only prescribe who may, and who may not, be eligible to be drawn as jurors; but it may also question each person drawn as a juror, as to his sentiments in regard to the particular law involved in each trial, before suffering him to be sworn on the panel; and exclude him if he be found unfavorable to the maintenance of such a law.[1] So, also, if the government may dictate to the jury _what laws they are to enforce_, it is no longer a "trial by the country," but a trial by the government; because the jury then try the accused, not by any standard of their own--not by their own judgments of their rightful liberties--but by a standard dictated to them by the government. And the standard, thus dictated by the government, becomes the measure of the people's liberties. If the government dictate the standard of trial, it of course dictates the results of the trial. And such a trial is no trial by the country, but only a trial by the government; and in it the government determines what are its own powers over the people, instead of the people's determining what are their own liberties against the government. In short, if the jury have no right to judge of the justice of a law of the government, they plainly can do nothing to protect the people against the oppressions of the government; for there are no oppressions which the government may not authorize by law. The jury are also to judge whether the laws are rightly expounded to them by the court. Unless they judge on this point, they do nothing to protect their liberties against the oppressions that are capable of being practised under cover of a corrupt exposition of the laws. If the judiciary can authoritatively dictate to a jury any exposition of the law, they can dictate to them the law itself, and such laws as they please; because laws are, in practice, one thing or another, according as they are expounded. The jury must also judge whether there really be any such law, (be it good or bad,) as the accused is charged with having transgressed. Unless they judge on this point, the people are liable to have their liberties taken from them by brute force, without any law at all. The jury must also judge of the laws of evidence. If the government can dictate to a jury the laws of evidence, it can not only shut out any evidence it pleases, tending to vindicate the accused, but it can require that any evidence whatever, that it pleases to offer, be held as conclusive proof of any offence whatever which the government chooses to allege. It is manifest, therefore, that the jury must judge of and try the whole case, and every part and parcel of the case, free of any dictation or authority on the part of the government. They must judge of the existence of the law; of the true exposition of the law; _of the justice of the law_; and of the admissibility and weight of all the evidence offered; otherwise the government will have everything its own way; the jury will be mere puppets in the hands of the government; and the trial will be, in reality, a trial by the government, and not a "trial by the country." By such trials the government will determine its own powers over the people, instead of the people's determining their own liberties against the government; and it will be an entire delusion to talk, as for centuries we have done, of the trial by jury, as a "palladium of liberty," or as any protection to the people against the oppression and tyranny of the government. The question, then, between trial by jury, as thus described, and trial by the government, is simply a question between liberty and despotism. The authority to judge what are the powers of the government, and what the liberties of the people, must necessarily be vested in one or the other of the parties themselves--the government, or the people; because there is no third party to whom it can be entrusted. If the authority be vested in the government, the government is absolute, and the people have no liberties except such as the government sees fit to indulge them with. If, on the other hand, that authority be vested in the people, then the people have all liberties, (as against the government,) except such as substantially the whole people (through a jury) choose to disclaim; and the government can exercise no power except such as substantially the whole people (through a jury) consent that it may exercise. SECTION II. The force and justice of the preceding argument cannot be evaded by saying that the government is chosen by the people; that, in theory, it represents the people; that it is designed to do the will of the people; that its members are all sworn to observe the fundamental or constitutional law instituted by the people; that its acts are therefore entitled to be considered the acts of the people; and that to allow a jury, representing the people, to invalidate the acts of the government, would therefore be arraying the people against themselves. There are two answers to such an argument. One answer is, that, in a representative government, there is no absurdity or contradiction, nor any arraying of the people against themselves, in requiring that the statutes or enactments of the government shall pass the ordeal of any number of separate tribunals, before it shall be determined that they are to have the force of laws. Our American constitutions have provided five of these separate tribunals, to wit, representatives, senate, executive,[2] jury, and judges; and have made it necessary that each enactment shall pass the ordeal of all these separate tribunals, before its authority can be established by the punishment of those who choose to transgress it. And there is no more absurdity or inconsistency in making a jury one of these several tribunals, than there is in making the representatives, or the senate, or the executive, or the judges, one of them. There is no more absurdity in giving a jury a veto upon the laws, than there is in giving a veto to each of these other tribunals. The people are no more arrayed against themselves, when a jury puts its veto upon a statute, which the other tribunals have sanctioned, than they are when the same veto is exercised by the representatives, the senate, the executive, or the judges. But another answer to the argument that the people are arrayed against themselves, when a jury hold an enactment of the government invalid, is, that the government, and all the departments of the government, _are merely the servants and agents of the people_; not invested with arbitrary or absolute authority to bind the people, but required to submit all their enactments to the judgment of a tribunal more fairly representing the whole people, before they carry them into execution, by punishing any individual for transgressing them. If the government were not thus required to submit their enactments to the judgment of "the country," before executing them upon individuals--if, in other words, the people had reserved to themselves no veto upon the acts of the government, the government, instead of being a mere servant and agent of the people, would be an absolute despot over the people. It would have all power in its own hands; because the power to _punish_ carries all other powers with it. A power that can, of itself, and by its own authority, punish disobedience, can compel obedience and submission, and is above all responsibility for the character of its laws. In short, it is a despotism. And it is of no consequence to inquire how a government came by this power to punish, whether by prescription, by inheritance, by usurpation, or by delegation from the people? _If it have now but got it_, the government is absolute. It is plain, therefore, that if the people have invested the government with power to make laws that absolutely bind the people, and to punish the people for transgressing those laws, the people have surrendered their liberties unreservedly into the hands of the government. It is of no avail to say, in answer to this view of the case, that in surrendering their liberties into the hands of the government, the people took an oath from the government, that it would exercise its power within certain constitutional limits; for when did oaths ever restrain a government that was otherwise unrestrained? Or when did a government fail to determine that all its acts were within the constitutional and authorized limits of its power, if it were permitted to determine that question for itself? Neither is it of any avail to say, that, if the government abuse its power, and enact unjust and oppressive laws, the government may be changed by the influence of discussion, and the exercise of the right of suffrage. Discussion can do nothing to prevent the enactment, or procure the repeal, of unjust laws, unless it be understood that the discussion is to be followed by resistance. Tyrants care nothing for discussions that are to end only in discussion. Discussions, which do not interfere with the enforcement of their laws, are but idle wind to them. Suffrage is equally powerless and unreliable. It can be exercised only periodically; and the tyranny must at least be borne until the time for suffrage comes. Besides, when the suffrage is exercised, it gives no guaranty for the repeal of existing laws that are oppressive, and no security against the enactment of new ones that are equally so. The second body of legislators are liable and likely to be just as tyrannical as the first. If it be said that the second body may be chosen for their integrity, the answer is, that the first were chosen for that very reason, and yet proved tyrants. The second will be exposed to the same temptations as the first, and will be just as likely to prove tyrannical. Who ever heard that succeeding legislatures were, on the whole, more honest than those that preceded them? What is there in the nature of men or things to make them so? If it be said that the first body were chosen from motives of injustice, that fact proves that there is a portion of society who desire to establish injustice; and if they were powerful or artful enough to procure the election of their instruments to compose the first legislature, they will be likely to be powerful or artful enough to procure the election of the same or similar instruments to compose the second. The right of suffrage, therefore, and even a change of legislators, guarantees no change of legislation--certainly no change for the better. Even if a change for the better actually comes, it comes too late, because it comes only after more or less injustice has been irreparably done. But, at best, the right of suffrage can be exercised only periodically; and between the periods the legislators are wholly irresponsible. No despot was ever more entirely irresponsible than are republican legislators during the period for which they are chosen. They can neither be removed from their office, nor called to account while in their office, nor punished after they leave their office, be their tyranny what it may. Moreover, the judicial and executive departments of the government are equally irresponsible _to the people_, and are only responsible, (by impeachment, and dependence for their salaries), to these irresponsible legislators. This dependence of the judiciary and executive upon the legislature is a guaranty that they will always sanction and execute its laws, whether just or unjust. Thus the legislators hold the whole power of the government in their hands, and are at the same time utterly irresponsible for the manner in which they use it. If, now, this government, (the three branches thus really united in one), can determine the validity of, and enforce, its own laws, it is, for the time being, entirely absolute, and wholly irresponsible to the people. But this is not all. These legislators, and this government, so irresponsible while in power, can perpetuate their power at pleasure, if they can determine what legislation is authoritative upon the people, and can enforce obedience to it; for they can not only declare their power perpetual, but they can enforce submission to all legislation that is necessary to secure its perpetuity. They can, for example, prohibit all discussion of the rightfulness of their authority; forbid the use of the suffrage; prevent the election of any successors; disarm, plunder, imprison, and even kill all who refuse submission. If, therefore, the government (all departments united) be absolute for a day--that is, if it can, for a day, enforce obedience to its own laws--it can, in that day, secure its power for all time--like the queen, who wished to reign but for a day, but in that day caused the king, her husband, to be slain, and usurped his throne. Nor will it avail to say that such acts would be unconstitutional, and that unconstitutional acts may be lawfully resisted; for everything a government pleases to do will, of course, be determined to be constitutional, if the government itself be permitted to determine the question of the constitutionality of its own acts. Those who are capable of tyranny, are capable of perjury to sustain it. The conclusion, therefore, is, that any government, that can, _for a day_, enforce its own laws, without appealing to the people, (or to a tribunal fairly representing the people,) for their consent, is, in theory, an absolute government, irresponsible to the people, and can perpetuate its power at pleasure. The trial by jury is based upon a recognition of this principle, and therefore forbids the government to execute any of its laws, by punishing violators, in any case whatever, without first getting the consent of "the country," or the people, through a jury. In this way, the people, at all times, hold their liberties in their own hands, and never surrender them, even for a moment, into the hands of the government. The trial by jury, then, gives to any and every individual the liberty, at any time, to disregard or resist any law whatever of the government, if he be willing to submit to the decision of a jury, the questions, whether the law be intrinsically just and obligatory? and whether his conduct, in disregarding or resisting it, were right in itself? And any law, which does not, in such trial, obtain the unanimous sanction of twelve men, taken at random from the people, and judging according to the standard of justice in their own minds, free from all dictation and authority of the government, may be transgressed and resisted with impunity, by whomsoever pleases to transgress or resist it.[3] The trial by jury authorizes all this, or it is a sham and a hoax, utterly worthless for protecting the people against oppression. If it do not authorize an individual to resist the first and least act of injustice or tyranny, on the part of the government, it does not authorize him to resist the last and the greatest. If it do not authorize individuals to nip tyranny in the bud, it does not authorize them to cut it down when its branches are filled with the ripe fruits of plunder and oppression. Those who deny the right of a jury to protect an individual in resisting an unjust law of the government, deny him all _legal_ defence whatsoever against oppression. The right of revolution, which tyrants, in mockery, accord to mankind, is no _legal_ right _under_ a government; it is only a _natural_ right to overturn a government. The government itself never acknowledges this right. And the right is practically established only when and because the government no longer exists to call it in question. The right, therefore, can be exercised with impunity, only when it is exercised victoriously. All _unsuccessful_ attempts at revolution, however justifiable in themselves, are punished as treason, if the government be permitted to judge of the treason. The government itself never admits the injustice of its laws, as a legal defence for those who have attempted a revolution, and failed. The right of revolution, therefore, is a right of no practical value, except for those who are stronger than the government. So long, therefore, as the oppressions of a government are kept within such limits as simply not to exasperate against it a power greater than its own, the right of revolution cannot be appealed to, and is therefore inapplicable to the case. This affords a wide field for tyranny; and if a jury cannot _here_ intervene, the oppressed are utterly defenceless. It is manifest that the only security against the tyranny of the government lies in forcible resistance to the execution of the injustice; because the injustice will certainly be executed, _unless it be forcibly resisted_. And if it be but suffered to be executed, it must then be borne; for the government never makes compensation for its own wrongs. Since, then, this forcible resistance to the injustice of the government is the only possible means of preserving liberty, it is indispensable to all _legal_ liberty that this _resistance_ should be _legalized_. It is perfectly self-evident that where there is no _legal_ right to resist the oppression of the government, there can be no _legal_ liberty. And here it is all-important to notice, that, _practically speaking_, there can be no _legal_ right to resist the oppressions of the government, unless there be some _legal_ tribunal, other than the government, and wholly independent of, and _above_, the government, to judge between the government and those who resist its oppressions; in other words, to judge what laws of the government are to be obeyed, and what may be resisted and held for nought. The only tribunal known to our laws, for this purpose, is a jury. If a jury have not the right to judge between the government and those who disobey its laws, and resist its oppressions, the government is absolute, and the people, _legally speaking_, are slaves. Like many other slaves they may have sufficient courage and strength to keep their masters somewhat in check; but they are nevertheless _known to the law_ only as slaves. That this right of resistance was recognized as a common law right, when the ancient and genuine trial by jury was in force, is not only proved by the nature of the trial itself, but is acknowledged by history.[4] This right of resistance is recognized by the constitution of the United States, as a strictly legal and constitutional right. It is so recognized, first by the provision that "the trial of all crimes, except in cases of impeachment, shall be by jury"--that is, by the country--and not by the government; secondly, by the provision that "the right of the people to keep and bear arms shall not be infringed." This constitutional security for "the right to keep and bear arms," implies the right to use them--as much as a constitutional security for the right to buy and keep food would have implied the right to eat it. The constitution, therefore, takes it for granted that the people will judge of the conduct of the government, and that, as they have the right, they will also have the sense, to use arms, whenever the necessity of the case justifies it. And it is a sufficient and _legal_ defence for a person accused of using arms against the government, if he can show, to the satisfaction of a jury, _or even any one of a jury_, that the law he resisted was an unjust one. In the American _State_ constitutions also, this right of resistance to the oppressions of the government is recognized, in various ways, as a natural, legal, and constitutional right. In the first place, it is so recognized by provisions establishing the trial by jury; thus requiring that accused persons shall be tried by "the country," instead of the government. In the second place, it is recognized by many of them, as, for example, those of Massachusetts, Maine, Vermont, Connecticut, Pennsylvania, Ohio, Indiana, Michigan, Kentucky, Tennessee, Arkansas, Mississippi, Alabama, and Florida, by provisions expressly declaring that the people shall have the right to bear arms. In many of them also, as, for example, those of Maine, New Hampshire, Vermont, Massachusetts, New Jersey, Pennsylvania, Delaware, Ohio, Indiana, Illinois, Florida, Iowa, and Arkansas, by provisions, in their bills of rights, declaring that men have a natural, inherent, and inalienable right of "_defending_ their lives and liberties." This, of course, means that they have a right to defend them against any injustice _on the part of the government_, and not merely on the part of private individuals; because the object of all bills of rights is to assert the rights of individuals and the people, _as against the government_, and not as against private persons. It would be a matter of ridiculous supererogation to assert, in a constitution of government, the natural right of men to defend their lives and liberties against private trespassers. Many of these bills of rights also assert the natural right of all men to protect their property--that is, to protect it _against the government_. It would be unnecessary and silly indeed to assert, in a constitution of government, the natural right of individuals to protect their property against thieves and robbers. The constitutions of New Hampshire and Tennessee also declare that "The doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind." The legal effect of these constitutional recognitions of the right of individuals to defend their property, liberties, and lives, against the government, is to legalize resistance to all injustice and oppression, of every name and nature whatsoever, on the part of the government. But for this right of resistance, on the part of the people, all governments would become tyrannical to a degree of which few people are aware. Constitutions are utterly worthless to restrain the tyranny of governments, unless it be understood that the people will, by force, compel the government to keep within the constitutional limits. Practically speaking, no government knows any limits to its power, except the endurance of the people. But that the people are stronger than the government, and will resist in extreme cases, our governments would be little or nothing else than organized systems of plunder and oppression. All, or nearly all, the advantage there is in fixing any constitutional limits to the power of a government, is simply to give notice to the government of the point at which it will meet with resistance. If the people are then as good as their word, they may keep the government within the bounds they have set for it; otherwise it will disregard them--as is proved by the example of all our American governments, in which the constitutions have all become obsolete, at the moment of their adoption, for nearly or quite all purposes except the appointment of officers, who at once become practically absolute, except so far as they are restrained by the fear of popular resistance. The bounds set to the power of the government, by the trial by jury, as will hereafter be shown, are these--that the government shall never touch the property, person, or natural or civil rights of an individual, against his consent, (except for the purpose of bringing them before a jury for trial,) unless in pursuance and _execution_ of a judgment, or decree, rendered by a jury in each individual case, upon such evidence, and such law, as are satisfactory to their own understandings and consciences, irrespective of all legislation of the government. [Footnote 1: To show that this supposition is not an extravagant one, it may be mentioned that courts have repeatedly questioned jurors to ascertain whether they were prejudiced _against the government_--that is, whether they were in favor of, or opposed to, such laws of the government as were to be put in issue in the then pending trial. This was done (in 1851) in the United States District Court for the District of Massachusetts, by Peleg Sprague, the United States district judge, in empanelling three several juries for the trials of Scott, Hayden, and Morris, charged with having aided in the rescue of a fugitive slave from the custody of the United States deputy marshal. This judge caused the following question to be propounded to all the jurors separately; and those who answered unfavorably for the purposes of the government, were excluded from the panel. "Do you hold any opinions upon the subject of the Fugitive Slave Law, so called, which will induce you to refuse to convict a person indicted under it, if the facts set forth in the indictment, _and constituting the offence_, are proved against him, and the court direct you that the law is constitutional?" The reason of this question was, that "the Fugitive Slave Law, so called," was so obnoxious to a large portion of the people, as to render a conviction under it hopeless, if the jurors were taken indiscriminately from among the people. A similar question was soon afterwards propounded to the persons drawn as jurors in the United States _Circuit_ Court for the District of Massachusetts, by Benjamin R. Curtis one of the Justices of the Supreme Court of the United States, in empanelling a jury for the trial of the aforesaid Morris on the charge before mentioned; and those who did not answer the question favorably for the government were again excluded from the panel. It has also been an habitual practice with the Supreme Court of Massachusetts, in empanelling juries for the trial of _capital_ offences, to inquire of the persons drawn as jurors whether they had any conscientious scruples against finding verdicts of guilty in such cases; that is, whether they had any conscientious scruples against sustaining the law prescribing death as the punishment of the crime to be tried; and to exclude from the panel all who answered in the affirmative. The only principle upon which these questions are asked, is this--that no man shall be allowed to serve as juror, unless he be ready to enforce any enactment of the government, however cruel or tyrannical it may be. What is such a jury good for, as a protection against the tyranny of the government? A jury like that is palpably nothing but a mere tool of oppression in the hands of the government. A trial by such a jury is really a trial by the government itself--and not a trial by the country--because it is a trial only by men specially selected by the government for their readiness to enforce its own tyrannical measures. If that be the true principle of the trial by jury, the trial is utterly worthless as a security to liberty. The Czar might, with perfect safety to his authority, introduce the trial by jury into Russia, if he could but be permitted to select his jurors from those who were ready to maintain his laws, without regard to their injustice. This example is sufficient to show that the very pith of the trial by jury, as a safeguard to liberty, consists in the jurors being taken indiscriminately from the whole people, and in their right to hold invalid all laws which they think unjust.] [Footnote 2: The executive has a qualified veto upon the passage of laws, in most of our governments, and an absolute veto, in all of them, upon the execution of any laws which he deems unconstitutional; because his oath to support the constitution (as he understands it) forbids him to execute any law that he deems unconstitutional.] [Footnote 3: And if there be so much as a reasonable _doubt_ of the justice of the laws, the benefit of that doubt must be given to the defendant, and not to the government. So that the government must keep its laws _clearly_ within the limits of justice, if it would ask a jury to enforce them.] [Footnote 4: _Hallam_ says, "The relation established between a lord and his vassal by the feudal tenure, far from containing principles of any servile and implicit obedience, permitted the compact to be dissolved in case of its violation by either party. This extended as much to the sovereign as to inferior lords. * * If a vassal was aggrieved, and if justice was denied him, he sent a defiance, that is, a renunciation of fealty to the king, and was entitled to enforce redress at the point of his sword. It then became a contest of strength as between two independent potentates, and was terminated by treaty, advantageous or otherwise, according to the fortune of war. * * There remained the original principle, that allegiance depended conditionally upon good treatment, and that an appeal might be _lawfully_ made to arms against an oppressive government. Nor was this, we may be sure, left for extreme necessity, or thought to require a long-enduring forbearance. In modern times, a king, compelled by his subjects' swords to abandon any pretension, would be supposed to have ceased to reign; and the express recognition of such a right as that of insurrection has been justly deemed inconsistent with the majesty of law. But ruder ages had ruder sentiments. Force was necessary to repel force; and men accustomed to see the king's authority defied by a private riot, were not much shocked when it was resisted in defence of public freedom."--_3 Middle Ages_, 240-2.] CHAPTER II. THE TRIAL BY JURY, AS DEFINED BY MAGNA CARTA. That the trial by jury is all that has been claimed for it in the preceding chapter, is proved both by the history and the language of the Great Charter of English Liberties, to which we are to look for a true definition of the trial by jury, and of which the guaranty for that trial is the vital, and most memorable, part. SECTION I. _The History of Magna Carta._ In order to judge of the object and meaning of that chapter of Magna Carta which secures the trial by jury, it is to be borne in mind that, at the time of Magna Carta, the king (with exceptions immaterial to this discussion, but which will appear hereafter) was, constitutionally, the entire government; the sole _legislative_, _judicial_, and executive power of the nation. The executive and judicial officers were merely his servants, appointed by him, and removable at his pleasure. In addition to this, "the king himself often sat in his court, which always attended his person. He there heard causes, and pronounced judgment; and though he was assisted by the advice of other members, it is not to be imagined that a decision could be obtained contrary to his inclination or opinion."[5] Judges were in those days, and afterwards, such abject servants of the king, that "we find that King Edward I. (1272 to 1307) fined and imprisoned his judges, in the same manner as Alfred the Great, among the Saxons, had done before him, by the sole exercise of his authority."[6] Parliament, so far as there was a parliament, was a mere _council_ of the king.[7] It assembled only at the pleasure of the king; sat only during his pleasure; and when sitting had no power, so far as _general_ legislation was concerned, beyond that of simply _advising_ the king. The only legislation to which their assent was constitutionally necessary, was demands for money and military services for _extraordinary_ occasions. Even Magna Carta itself makes no provisions whatever for any parliaments, except when the king should want means to carry on war, or to meet some other _extraordinary_ necessity.[8] He had no need of parliaments to raise taxes for the _ordinary_ purposes of government; for his revenues from the rents of the crown lands and other sources, were ample for all except extraordinary occasions. Parliaments, too, when assembled, consisted only of bishops, barons, and other great men of the kingdom, unless the king chose to invite others.[9] There was no House of Commons at that time, and the people had no right to be heard, unless as petitioners.[10] Even when laws were made at the time of a parliament, they were made in the name of the king alone. Sometimes it was inserted in the laws, that they were made with the _consent_ or _advice_ of the bishops, barons, and others assembled; but often this was omitted. Their consent or advice was evidently a matter of no legal importance to the enactment or validity of the laws, but only inserted, when inserted at all, with a view of obtaining a more willing submission to them on the part of the people. The style of enactment generally was, either "_The King wills and commands_," or some other form significant of the sole legislative authority of the king. The king could pass laws at any time when it pleased him. The presence of a parliament was wholly unnecessary. Hume says, "It is asserted by Sir Harry Spelman, as an undoubted fact, that, during the reigns of the Norman princes, every order of the king, issued with the consent of his privy council, had the full force of law."[11] And other authorities abundantly corroborate this assertion.[12] The king was, therefore, constitutionally the government; and the only legal limitation upon his power seems to have been simply the _Common Law_, usually called "_the law of the land_," which he was bound by oath to maintain; (which oath had about the same practical value as similar oaths have always had.) This "law of the land" seems not to have been regarded at all by many of the kings, except so far as they found it convenient to do so, or were constrained to observe it by the fear of arousing resistance. But as all people are slow in making resistance, oppression and usurpation often reached a great height; and, in the case of John, they had become so intolerable as to enlist the nation almost universally against him; and he was reduced to the necessity of complying with any terms the barons saw fit to dictate to him. It was under these circumstances, that the Great Charter of English Liberties was granted. The barons of England, sustained by the common people, having their king in their power, compelled him, as the price of his throne, to pledge himself that he would punish no freeman for a violation of any of his laws, unless with the consent of the peers--that is, the equals--of the accused. The question here arises, Whether the barons and people intended that those peers (the jury) should be mere puppets in the hands of the king, exercising no opinion of their own as to the intrinsic merits of the accusations they should try, or the _justice_ of the laws they should be called on to enforce? Whether those haughty and victorious barons, when they had their tyrant king at their feet, gave back to him his throne, with full power to enact any tyrannical laws he might please, reserving only to a jury ("the country") the contemptible and servile privilege of ascertaining, (under the dictation of the king, or his judges, as to the laws of evidence), the simple _fact_ whether those laws had been transgressed? Was this the only restraint, which, when they had all power in their hands, they placed upon the tyranny of a king, whose oppressions they had risen in arms to resist? Was it to obtain such a charter as that, that the whole nation had united, as it were, like one man, against their king? Was it on such a charter that they intended to rely, for all future time, for the security of their liberties? No. They were engaged in no such senseless work as that. On the contrary, when they required him to renounce forever the power to punish any freeman, unless by the consent of his peers, they intended those peers should judge of, and try, the whole case on its merits, independently of all arbitrary legislation, or judicial authority, on the part of the king. In this way they took the liberties of each individual--and thus the liberties of the whole people--entirely out of the hands of the king, and out of the power of his laws, and placed them in the keeping of the people themselves. And this it was that made the trial by jury the palladium of their liberties. The trial by jury, be it observed, was the only real barrier interposed by them against absolute despotism. Could this trial, then, have been such an entire farce as it necessarily must have been, if the jury had had no power to judge of the justice of the laws the people were required to obey? Did it not rather imply that the jury were to judge independently and fearlessly as to everything involved in the charge, and especially as to its intrinsic justice, and thereon give their decision, (unbiased by any legislation of the king,) whether the accused might be punished? The reason of the thing, no less than the historical celebrity of the events, as securing the liberties of the people, and the veneration with which the trial by jury has continued to be regarded, notwithstanding its essence and vitality have been almost entirely extracted from it in practice, would settle the question, if other evidences had left the matter in doubt. Besides, if his laws were to be authoritative with the jury, why should John indignantly refuse, as at first he did, to grant the charter, (and finally grant it only when brought to the last extremity,) on the ground that it deprived him of all power, and left him only the name of a king? _He_ evidently understood that the juries were to veto his laws, and paralyze his power, at discretion, by forming their own opinions as to the true character of the offences they were to try, and the laws they were to be called on to enforce; and that "_the king wills and commands_" was to have no weight with them contrary to their own judgments of what was intrinsically right.[13] The barons and people having obtained by the charter all the liberties they had demanded of the king, it was further provided by the charter itself that twenty-five barons should be appointed by the barons, out of their number, to keep special vigilance in the kingdom to see that the charter was observed, with authority to make war upon the king in case of its violation. The king also, by the charter, so far absolved all the people of the kingdom from their allegiance to him, as to authorize and require them to swear to obey the twenty-five barons, in case they should make war upon the king for infringement of the charter. It was then thought by the barons and people, that something substantial had been done for the security of their liberties. This charter, in its most essential features, and without any abatement as to the trial by jury, has since been confirmed more than thirty times; and the people of England have always had a traditionary idea that it was of some value as a guaranty against oppression. Yet that idea has been an entire delusion, unless the jury have had the right to judge of the justice of the laws they were called on to enforce. SECTION II. _The Language of Magna Carta._ The language of the Great Charter establishes the same point that is established by its history, viz., that it is the right and duty of the jury to judge of the justice of the laws. The chapter guaranteeing the trial by jury is in these words: "Nullus liber homo capiatur, vel imprisonetur, aut disseisetur, aut utlagetur, aut exuletur, aut aliquo modo destruatur; nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, vel per legem terræ."[14] The corresponding chapter in the Great Charter, granted by Henry III., (1225,) and confirmed by Edward I., (1297,) (which charter is now considered the basis of the English laws and constitution,) is in nearly the same words, as follows: "Nullus liber homo capiatur, vel imprisonetur, aut disseisetur de libero tenemento, vel libertatibus, vel liberis consuetudinibus suis, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, vel per legem terræ." The most common translation of these words, at the present day, is as follows: "No freeman shall be arrested, or imprisoned, or deprived of his freehold, or his liberties, or free customs, or outlawed, or exiled, or in any manner destroyed, _nor will we (the king) pass upon him, nor condemn him_, unless by the judgment of his peers, or the law of the land." "_Nec super eum ibimus, nec super eum mittemus._" There has been much confusion and doubt as to the true meaning of the words, "_nec super eum ibimus, nec super eum mittemus_." The more common rendering has been, "_nor will we pass upon him, nor condemn him_." But some have translated them to mean, "_nor will we pass upon him, nor commit him to prison_." Coke gives still a different rendering, to the effect that "No man shall be condemned at the king's suit, either before the king in his bench, nor before any other commissioner or judge whatsoever."[15] But all these translations are clearly erroneous. In the first place, "_nor will we pass upon him_,"--meaning thereby to decide upon his guilt or innocence _judicially_--is not a correct rendering of the words, "_nec super eum ibimus_." There is nothing whatever, in these latter words, that indicates _judicial_ action or opinion at all. The words, in their common signification, describe _physical_ action alone. And the true translation of them, as will hereafter be seen, is, _"nor will we proceed against him," executively_. In the second place, the rendering, "_nor will we condemn him_," bears little or no analogy to any common, or even uncommon, signification of the words "_nec super eum mittemus_." There is nothing in these latter words that indicates _judicial_ action or decision. Their common signification, like that of the words _nec super eum ibimus_, describes _physical_ action alone. "_Nor will we send upon (or against) him_," would be the most obvious translation, and, as we shall hereafter see, such is the true translation. But although these words describe _physical_ action, on the part of the king, as distinguished from judicial, they nevertheless do not mean, as one of the translations has it, "_nor will we commit him to prison_;" for that would be a mere repetition of what had been already declared by the words "_nec imprisonetur_." Besides, there is nothing about prisons in the words "_nec super eum mittemus_;" nothing about sending _him_ anywhere; but only about sending (something or somebody) _upon_ him, or _against_ him--that is, _executively_. Coke's rendering is, if possible, the most absurd and gratuitous of all. What is there in the words, "_nec super eum mittemus_" that can be made to mean "_nor shall he be condemned before any other commissioner or judge whatsoever_?" Clearly there is nothing. The whole rendering is a sheer fabrication. And the whole object of it is to give color for the exercise of a _judicial_ power, by the king, or his judges, which is nowhere given them. Neither the words, "_nec super eum ibimus, nec super eum mittemus_," nor any other words in the whole chapter, authorize, provide for, describe, or suggest, any _judicial_ action whatever, on the part either of the king, or of his judges, or of anybody, _except the peers, or jury_. There is nothing about the king's _judges_ at all. And there is nothing whatever, in the whole chapter, _so far as relates to the action of the king_, that describes or suggests anything but _executive_ action.[16] But that all these translations are certainly erroneous, is proved by a temporary charter, granted by John a short time previous to the Great Charter, for the purpose of giving an opportunity for conference, arbitration, and reconciliation between him and his barons. It was to have force until the matters in controversy between them could be submitted to the Pope, and to other persons to be chosen, some by the king, and some by the barons. The words of the charter are as follows: "Sciatis nos concessisse baronibus nostris qui contra nos sunt quod nec eos nec homines suos capiemus, nec disseisiemus _nec super eos per vim vel per arma ibimus_ nisi per legem regni nostri vel per judicium parium suorum in curia nostra donec consideratio facta fuerit," &c., &c. That is, "Know that we have granted to our barons who are opposed to us, that we will neither arrest them nor their men, nor disseize them, _nor will we proceed against them by force or by arms_, unless by the law of our kingdom, or by the judgment of their peers in our court, until consideration shall be had," &c., &c. A copy of this charter is given in a note in Blackstone's Introduction to the Charters.[17] Mr. Christian speaks of this charter as settling the true meaning of the corresponding clause of Magna Carta, on the principle that laws and charters on the same subject are to be construed with reference to each other. See _3 Christian's Blackstone_, 41, _note_. The true meaning of the words, _nec super eum ibimus, nec super eum mittemus_, is also proved by the "_Articles of the Great Charter of Liberties_," demanded of the king by the barons, and agreed to by the king, under seal, a few days before the date of the Charter, and from which the Charter was framed.[18] Here the words used are these: "Ne corpus liberi hominis capiatur nec imprisonetur nec disseisetur nec utlagetur nec exuletur nec aliquo modo destruatur _nec rex eat vel mittat super eum vi_ nisi per judicium parium suorum vel per legem terræ." That is, "The body of a freeman shall not be arrested, nor imprisoned, nor disseized, nor outlawed, nor exiled, nor in any manner destroyed, _nor shall the king proceed or send (any one) against him_ WITH FORCE, unless by the judgment of his peers, or the law of the land." The true translation of the words _nec super eum ibimus, nec super eum mittemus_, in Magna Carta, is thus made certain, as follows, "_nor will we (the king) proceed against him, nor send (any one) against him_ WITH FORCE OR ARMS."[19] It is evident that the difference between the true and false translations of the words, _nec super eum ibimus, nec super eum mittemus_, is of the highest legal importance, inasmuch as the true translation, _nor will we (the king) proceed against him, nor send (any one) against him by force or arms_, represents the king only in an _executive_ character, _carrying the judgment of the peers and "the law of the land" into execution_; whereas the false translation, _nor will we pass upon him, nor condemn him_, gives color for the exercise of a _judicial_ power, on the part of the king, to which the king had no right, but which, according to the true translation, belongs wholly to the jury. "_Per legale judicium parium suorum._" The foregoing interpretation is corroborated, (if it were not already too plain to be susceptible of corroboration,) by the true interpretation of the phrase "_per legale judicium parium suorum_." In giving this interpretation, I leave out, for the present, the word _legale_, which will be defined afterwards. The true meaning of the phrase, _per judicium parium suorum_, is, _according to the sentence of his peers_. The word _judicium, judgment_, has a technical meaning in the law, signifying the decree rendered in the decision of a cause. In civil suits this decision is called a _judgment_; in chancery proceedings it is called a _decree_; in criminal actions it is called a _sentence_, or _judgment_, indifferently. Thus, in a criminal suit, "a motion in arrest of _judgment_" means a motion in arrest of _sentence_.[20] In cases of sentence, therefore, in criminal suits, the words _sentence_ and _judgment_ are synonymous terms. They are, to this day, commonly used in law books as synonymous terms. And the phrase _per judicium parium suorum_, therefore, implies that the jury are to fix the sentence. The word _per_ means _according to_. Otherwise there is no sense in the phrase _per judicium parium suorum_. There would be no sense in saying that a king might imprison, disseize, outlaw, exile, or otherwise punish a man, or proceed against him, or send any one against him, _by force or arms, by_ a judgment of his peers; but there is sense in saying that the king may imprison, disseize, and punish a man, or proceed against him, or send any one against him, by force or arms, _according to_ a judgment, or _sentence_, of his peers; because in that case the king would be merely carrying the sentence or judgment of the peers into execution. The word _per_, in the phrase "_per_ judicium parium suorum," of course means precisely what it does in the next phrase, "_per_ legem terræ;" where it obviously means _according to_, and not _by_, as it is usually translated. There would be no sense in saying that the king might proceed against a man by force or arms, _by_ the law of the land; but there is sense in saying that he may proceed against him, by force or arms, _according to_ the law of the land; because the king would then be acting only as an executive officer, carrying the law of the land into execution. Indeed, the true meaning of the word _by_, as used in similar cases now, always is _according to_; as, for example, when we say a thing was done by the government, or by the executive, _by law_, we mean only that it was done by them _according to law_; that is, that they merely executed the law. Or, if we say that the word _by_ signifies _by authority of_, the result will still be the same; for nothing can be done _by authority of_ law, except what the law itself authorizes or directs to be done; that is, nothing can be done by authority of law, except simply to carry the law itself into execution. So nothing could be done _by authority of_ the sentence of the peers, or _by authority of_ "the law of the land," except what the sentence of the peers, or the law of the land, themselves authorized or directed to be done; nothing, in short, but to carry the sentence of the peers, or the law of the land, themselves into execution. Doing a thing _by_ law, or _according to_ law, is only carrying the law into execution. And punishing a man _by_, or _according to_, the sentence or judgment of his peers, is only carrying that sentence or judgment into execution. If these reasons could leave any doubt that the word _per_ is to be translated _according to_, that doubt would be removed by the terms of an antecedent guaranty for the trial by jury, granted by the Emperor Conrad, of Germany,[21] two hundred years before Magna Carta. Blackstone cites it as follows:--(_3 Blackstone_, 350.) "Nemo beneficium suum perdat, nisi _secundum_ consuetudinem antecessorum nostrorum, et judicium parium suorum." That is, No one shall lose his estate,[22] unless _according to_ ("_secundum_") the custom (or law) of our ancestors, and (_according to_) the sentence (or judgment) of his peers. The evidence is therefore conclusive that the phrase _per judicium parium suorum_ means _according to the sentence of his peers_; thus implying that the jury, and not the government, are to fix the sentence. If any additional proof were wanted that juries were to fix the sentence, it would be found in the following provisions of Magna Carta, viz.: "A freeman shall not be amerced for a small crime, (_delicto_,) but according to the degree of the crime; and for a great crime in proportion to the magnitude of it, saving to him his _contenement_;[23] and after the same manner a merchant, saving to him his merchandise. And a villein shall be amerced after the same manner, saving to him his waynage,[24] if he fall under our mercy; _and none of the aforesaid amercements shall be imposed, (or assessed, ponatur,) but by the oath of honest men of the neighborhood. Earls and Barons shall not be amerced but by their peers_, and according to the degree of their crime."[25] Pecuniary punishments were the most common punishments at that day, and the foregoing provisions of Magna Carta show that the amount of those punishments was to be fixed by the jury. Fines went to the king, and were a source of revenue; and if the amounts of the fines had been left to be fixed by the king, he would have had a pecuniary temptation to impose unreasonable and oppressive ones. So, also, in regard to other punishments than fines. If it were left to the king to fix the punishment, he might often have motives to inflict cruel and oppressive ones. As it was the object of the trial by jury to protect the people against all possible oppression from the king, it was necessary that the jury, and not the king, should fix the punishments.[26] "_Legale._" The word "_legale_," in the phrase "_per legale judicium parium suorum_," doubtless means two things. 1. That the sentence must be given in a legal manner; that is, by the legal number of jurors, legally empanelled and sworn to try the cause; and that they give their judgment or sentence after a legal trial, both in form and substance, has been had. 2. That the sentence shall be for a legal cause or offence. If, therefore, a jury should convict and sentence a man, either without giving him a legal trial, or for an act that was not really and legally criminal, the sentence itself would not be legal; and consequently this clause forbids the king to carry such a sentence into execution; for the clause guarantees that he will execute no judgment or sentence, except it be _legale judicium_, a legal sentence. Whether a sentence be a legal one, would have to be ascertained by the king or his judges, on appeal, or might be judged of informally by the king himself. The word "_legale_" clearly did not mean that the _judicium parium suorum_ (judgment of his peers) should be a sentence which any law (of the king) should _require_ the peers to pronounce; for in that case the sentence would not be the sentence of the peers, but only the sentence of the law, (that is, of the king); and the peers would be only a mouthpiece of the law, (that is, of the king,) in uttering it. "_Per legem terræ._" One other phrase remains to be explained, viz., "_per legem terræ_," "_by the law of the land_." All writers agree that this means the _common law_. Thus, Sir Matthew Hale says: "The common law is sometimes called, by way of eminence, _lex terræ_, as in the statute of _Magna Carta_, chap. 29, where certainly the common law is principally intended by those words, _aut per legem terræ_; as appears by the exposition thereof in several subsequent statutes; and particularly in the statute of 28 Edward III., chap. 3, which is but an exposition and explanation of that statute. Sometimes it is called _lex Angliæ_, as in the statute of Merton, cap. 9, "_Nolumus leges Angliæ mutari_," &c., (We will that the laws of England be not changed). Sometimes it is called _lex et consuetudo regni_ (the law and custom of the kingdom); as in all commissions of oyer and terminer; and in the statutes of 18 Edward I., cap.--, and _de quo warranto_, and divers others. But most commonly it is called the Common Law, or the Common Law of England; as in the statute _Articuli super Chartas_, cap. 15, in the statute 25 Edward III., cap. 5, (4,) and infinite more records and statutes."--1 _Hale's History of the Common Law_, 128. This common law, or "law of the land," _the king was sworn to maintain_. This fact is recognized by a statute made at Westminster, in 1346, by Edward III., which commences in this manner: "Edward, by the Grace of God, &c., &c., to the Sheriff of Stafford, Greeting: Because that by divers complaints made to us, we have perceived that _the law of the land, which we by oath are bound to maintain_," &c.--_St. 20 Edward III._ The foregoing authorities are cited to show to the unprofessional reader, what is well known to the profession, that _legem terræ, the law of the land_, mentioned in Magna Carta, was the common, ancient, fundamental law of the land, which the kings were bound by oath to observe; _and that it did not include any statutes or laws enacted by the king himself, the legislative power of the nation_. If the term _legem terræ_ had included laws enacted by the king himself, the whole chapter of Magna Carta, now under discussion, would have amounted to nothing as a protection to liberty; because it would have imposed no restraint whatever upon the power of the king. The king could make laws at any time, and such ones as he pleased. He could, therefore, have done anything he pleased, _by the law of the land_, as well as in any other way, if his own laws had been "_the law of the land_." If his own laws had been "the law of the land," within the meaning of that term as used in Magna Carta, this chapter of Magna Carta would have been sheer nonsense, inasmuch as the whole purport of it would have been simply that "no man shall be arrested, imprisoned, or deprived of his freehold, or his liberties, or free customs, or outlawed, or exiled, or in any manner destroyed (by the king); nor shall the king proceed against him, nor send any one against him with force and arms, unless by the judgment of his peers, _or unless the king shall please to do so_." This chapter of Magna Carta would, therefore, have imposed not the slightest restraint upon the power of the king, or afforded the slightest protection to the liberties of the people, if the laws of the king had been embraced in the term _legem terræ_. But if _legem terræ_ was the common law, which the king was sworn to maintain, then a real restriction was laid upon his power, and a real guaranty given to the people for their liberties. Such, then, being the meaning of _legem terræ_, the fact is established that Magna Carta took an accused person entirely out of the hands of the legislative power, that is, of the king; and placed him in the power and under the protection of his peers, and the common law alone; that, in short, Magna Carta suffered no man to be punished for violating any enactment of the legislative power, unless the peers or equals of the accused freely consented to it, or the common law authorized it; that the legislative power, _of itself_, was wholly incompetent to _require_ the conviction or punishment of a man for any offence whatever. _Whether Magna Carta allowed of any other trial than by jury._ The question here arises, whether "_legem terræ_" did not allow of some other mode of trial than that by jury. The answer is, that, at the time of Magna Carta, it is not probable, (for the reasons given in the note,) that _legem terræ_ authorized, in criminal cases, any other trial than the trial by jury; but, if it did, it certainly authorized none but the trial by battle, the trial by ordeal, and the trial by compurgators. These were the only modes of trial, except by jury, that had been known in England, in criminal cases, for some centuries previous to Magna Carta. All of them had become nearly extinct at the time of Magna Carta, and it is not probable that they were included in "_legem terræ_" as that term is used in that instrument. But if they were included in it, they have now been long obsolete, and were such as neither this nor any future age will ever return to.[27] For all practical purposes of the present day, therefore, it may be asserted that Magna Carta allows no trial whatever but trial by jury. _Whether Magna Carta allowed sentence to be fixed otherwise than by the jury._ Still another question arises on the words _legem terræ_, viz., whether, in cases where the question of guilt was determined by the jury, the amount of _punishment_ may not have been fixed by _legem terræ_, the Common Law, instead of its being fixed by the jury. I think we have no evidence whatever that, at the time of Magna Carta, or indeed at any other time, _lex terræ_, the common law, fixed the punishment in cases where the question of guilt was tried by a jury; or, indeed, that it did in any other case. Doubtless certain punishments were common and usual for certain offences; but I do not think it can be shown that the _common law_, the _lex terræ_, which the king was sworn to maintain, required any one specific punishment, or any precise amount of punishment, for any one specific offence. If such a thing be claimed, it must be shown, for it cannot be presumed. In fact, the contrary must be presumed, because, in the nature of things, the amount of punishment proper to be inflicted in any particular case, is a matter requiring the exercise of discretion at the time, in order to adapt it to the moral quality of the offence, which is different in each case, varying with the mental and moral constitutions of the offenders, and the circumstances of temptation or provocation. And Magna Carta recognizes this principle distinctly, as has before been shown, in providing that freemen, merchants, and villeins, "shall not be amerced for a small crime, but according to the degree of the crime; and for a great crime in proportion to the magnitude of it;" and that "none of the aforesaid amercements shall be imposed (or assessed) but by the oaths of honest men of the neighborhood;" and that "earls and barons shall not be amerced but by their peers, and according to the quality of the offence." All this implies that the moral quality of the offence was to be judged of at the trial, and that the punishment was to be fixed by the discretion of the peers, or jury, and not by any such unvarying rule as a common law rule would be. I think, therefore, it must be conceded that, in all cases, tried by a jury, Magna Carta intended that the punishment should be fixed by the jury, and not by the common law, for these several reasons. 1. It is uncertain whether the _common law_ fixed the punishment of any offence whatever. 2. The words "_per judicium parium suorum_," _according to the sentence of his peers_, imply that the jury fixed the sentence in _some_ cases tried by them; and if they fixed the sentence in some cases, it must be presumed they did in all, unless the contrary be clearly shown. 3. The express provisions of Magna Carta, before adverted to, that no amercements, or fines, should be imposed upon freemen, merchants, or villeins, "but by the oath of honest men of the neighborhood," and "according to the degree of the crime," and that "earls and barons should not be amerced but by their peers, and according to the quality of the offence," _proves_ that, at least, there was no common law fixing the amount of _fines_, or, if there were, that it was to be no longer in force. And if there was no common law fixing the amount of _fines_, or if it was to be no longer in force, it is reasonable to infer, (in the absence of all evidence to the contrary,) either that the common law did not fix the amount of any other punishment, or that it was to be no longer in force for that purpose.[28] Under the Saxon laws, fines, payable to the injured party, seem to have been the common punishments for all offences. Even murder was punishable by a fine payable to the relatives of the deceased. The murder of the king even was punishable by fine. When a criminal was unable to pay his fine, his relatives often paid it for him. But if it were not paid, he was put out of the protection of the law, and the injured parties, (or, in the case of murder, the kindred of the deceased,) were allowed to inflict such punishment as they pleased. And if the relatives of the criminal protected him, it was lawful to take vengeance on them also. Afterwards the custom grew up of exacting fines also to the king as a punishment for offences.[29] And this latter was, doubtless, the usual punishment at the time of Magna Carta, as is evidenced by the fact that for many years immediately following Magna Carta, nearly or quite all statutes that prescribed any punishment at all, prescribed that the offender should "be grievously amerced," or "pay a great fine to the king," or a "grievous ransom,"--with the alternative in some cases (perhaps _understood_ in all) of imprisonment, banishment, or outlawry, in case of non-payment.[30] Judging, therefore, from the special provisions in Magna Carta, requiring _fines_, or amercements, to be imposed only by juries, (without mentioning any other punishments;) judging, also, from the statutes which immediately followed Magna Carta, it is probable that the Saxon custom of punishing all, or nearly all, offences by _fines_, (with the alternative to the criminal of being imprisoned, banished, or outlawed, and exposed to private vengeance, in case of non-payment,) continued until the time of Magna Carta; and that in providing expressly that _fines_ should be fixed by the juries, Magna Carta provided for nearly or quite all the punishments that were expected to be inflicted; that if there were to be any others, they were to be fixed by the juries; and consequently that nothing was left to be fixed by "_legem terræ_." But whether the common law fixed the punishment of any offences, or not, is a matter of little or no practical importance at this day; because we have no idea of going back to any common law punishments of six hundred years ago, if, indeed, there were any such at that time. It is enough for us to know--_and this is what it is material for us to know_--that the jury fixed the punishments, in all cases, unless they were fixed by the _common law_; that Magna Carta allowed no punishments to be prescribed by statute--that is, by the legislative power--nor in any other manner by the king, or his judges, in any case whatever; and, consequently, that all statutes prescribing particular punishments for particular offences, or giving the king's judges any authority to fix punishments, were void. If the power to fix punishments had been left in the hands of the king, it would have given him a power of oppression, which was liable to be greatly abused; which there was no occasion to leave with him; and which would have been incongruous with the whole object of this chapter of Magna Carta; which object was to take all discretionary or arbitrary power over individuals entirely out of the hands of the king, and his laws, and entrust it only to the common law, and the peers, or jury--that is, the people. _What lex terræ did authorize._ But here the question arises, What then did "_legem terræ_" authorize the king, (that is, the government,) to do in the case of an accused person, if it neither authorized any other trial than that by jury, nor any other punishments than those fixed by juries? The answer is, that, owing to the darkness of history on the point, it is probably wholly impossible, at this day, to state, _with any certainty or precision_, anything whatever that the _legem terræ_ of Magna Carta did authorize the king, (that is, the government,) to do, (if, indeed, it authorized him to do anything,) in the case of criminals, _other than to have them tried and sentenced by their peers, for common law crimes_; and to carry that sentence into execution. The trial by jury was a part of _legem terræ_, and we have the means of knowing what the trial by jury was. The fact that the jury were to fix the sentence, implies that they were to _try_ the accused; otherwise they could not know what sentence, or whether any sentence, ought to be inflicted upon him. Hence it follows that the jury were to judge of everything involved in the trial; that is, they were to judge of the nature of the offence, of the admissibility and weight of testimony, and of everything else whatsoever that was of the essence of the trial. If anything whatever could be dictated to them, either of law or evidence, the sentence would not be theirs, but would be dictated to them by the power that dictated to them the law or evidence. The trial and sentence, then, were wholly in the hands of the jury. We also have sufficient evidence of the nature of the oath administered to jurors in criminal cases. It was simply, that _they would neither convict the innocent, nor acquit the guilty_. This was the oath in the Saxon times, and probably continued to be until Magna Carta. We also know that, in case of _conviction_, the sentence of the jury was not necessarily final; that the accused had the right of appeal to the king and his judges, and to demand either a new trial, or an acquittal, if the trial or conviction had been against law. So much, therefore, of the _legem terræ_ of Magna Carta, we know with reasonable certainty. We also know that Magna Carta provides that "No bailiff (_balivus_) shall hereafter put any man to his law, (put him on trial,) on his single testimony, without credible witnesses brought to support it." Coke thinks "that under this word _balivus_, in this act, is comprehended every justice, minister of the king, steward of the king, steward and bailiff." (2 Inst. 44.) And in support of this idea he quotes from a very ancient law book, called the Mirror of Justices, written in the time of Edward I., within a century after Magna Carta. But whether this were really a common law principle, or whether the provision grew out of that jealousy of the government which, at the time of Magna Carta, had reached its height, cannot perhaps now be determined. We also know that, by Magna Carta, amercements, or fines, could not be imposed to the ruin of the criminal; that, in the case of a freeman, his _contenement_, or means of subsisting in the condition of a freeman, must be saved to him; that, in the case of a merchant, his merchandise must be spared; and in the case of a villein, his _waynage_, or plough-tackle and carts. This also is likely to have been a principle of the common law, inasmuch as, in that rude age, when the means of getting employment as laborers were not what they are now, the man and his family would probably have been liable to starvation, if these means of subsistence had been taken from him. We also know, _generally_, that, at the time of Magna Carta, _all acts intrinsically criminal_, all trespasses against persons and property, were crimes, according to _lex terræ_, or the common law. Beyond the points now given, we hardly know anything, probably nothing _with certainty_, as to what the "_legem terræ_" of _Magna Carta_ did authorize, in regard to crimes. There is hardly anything extant that can give us any real light on the subject. It would seem, however, that there were, even at that day, some common law principles governing arrests; and some common law forms and rules as to holding a man for trial, (by bail or imprisonment;) putting him on trial, such as by indictment or complaint; summoning and empanelling jurors, &c., &c. Whatever these common law principles were, Magna Carta requires them to be observed; for Magna Carta provides for the whole proceedings, commencing with the arrest, ("no freeman shall be _arrested_," &c.,) and ending with the execution of the sentence. And it provides that nothing shall be done, by the government, from beginning to end, unless according to the sentence of the peers, or "_legem terræ_," the common law. The trial by peers was a part of _legem terræ_, and we have seen that the peers must necessarily have governed the whole proceedings at the trial. But all the proceedings for arresting the man, and bringing him to trial, must have been had before the case could come under the cognizance of the peers, and they must, therefore, have been governed by other rules than the discretion of the peers. We may _conjecture_, although we cannot perhaps know with much certainty, that the _lex terræ_, or common law, governing these other proceedings, was somewhat similar to the common law principles, on the same points, at the present day. Such seem to be the opinions of Coke, who says that the phrase _nisi per legem terræ_ means _unless by due process of law_. Thus, he says: "_Nisi per legem terræ. But by the law of the land._ For the true sense and exposition of these words, see the statute of 37 Edw. III., cap. 8, where the words, _by the law of the land_, are rendered _without due process of law_; for there it is said, though it be contained in the Great Charter, that no man be taken, imprisoned, or put out of his freehold, _without process of the law; that is, by indictment or presentment of good and lawful men, where such deeds be done in due manner, or by writ original of the common law_. "Without being brought in to answer but by due process of the common law. "No man be put to answer without presentment before justices, or thing of record, or by due process, or by writ original, _according to the old law of the land_."--_2 Inst._ 50. The foregoing interpretations of the words _nisi per legem terræ_ are corroborated by the following statutes, enacted in the next century after Magna Carta. "That no man, from henceforth, shall be attached by any accusation, nor forejudged of life or limb, nor his land, tenements, goods, nor chattels, seized into the king's hands, against the form of the Great Charter, _and the law of the land_."--_St. 5 Edward III., Ch._ 9. (1331.) "Whereas it is contained in the Great Charter of the franchises of England, that none shall be imprisoned, nor put out of his freehold, nor of his franchises, nor free customs, _unless it be by the law of the land_; it is accorded, assented, and established, that from henceforth none shall be taken by petition, or suggestion made to our lord the king, or to his council, _unless it be by indictment or presentment of good and lawful people of the same neighborhood where such deeds be done in due manner, or by process made by writ original at the common law_; nor that none be put out of his franchises, nor of his freehold, _unless he be duly brought into answer, and forejudged of the same by the course of the law_; and if anything be done against the same, it shall be redressed and holden for none."--_St. 25 Edward III., Ch._ 4. (1350.) "That no man, of what estate or condition that he be, shall be put out of land or tenement, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought in answer _by due process of law_."--_St. 28 Edward III., Ch._ 3. (1354.) "That no man be put to answer without presentment before justices, or matter of record, or by due process and writ original, according to the _old law of the land_. And if anything from henceforth be done to the contrary, it shall be void in law, and holden for error."--_St. 42 Edward III., Ch._ 3. (1368.) The foregoing interpretation of the words _nisi per legem terræ_--that is, _by due process of law_--including indictment, &c., has been adopted as the true one by modern writers and courts; as, for example, by Kent, (2 _Comm._ 13,) Story, (3 _Comm._ 661,) and the Supreme Court of New York, (19 _Wendell_, 676; 4 _Hill_, 146.) The fifth amendment to the constitution of the United States seems to have been framed on the same idea, inasmuch as it provides that "no person shall be deprived of life, liberty, or property, _without due process of law_."[31] _Whether the word_ VEL _should be rendered by_ OR, _or by_ AND. Having thus given the meanings, or rather the applications, which the words _vel per legem terræ_ will reasonably, and perhaps must necessarily, bear, it is proper to suggest, that it has been supposed by some that the word _vel_, instead of being rendered by _or_, as it usually is, ought to be rendered by _and_, inasmuch as the word _vel_ is often used for _et_, and the whole phrase _nisi per judicium parium suorum, vel per legem terræ_, (which would then read, unless by the sentence of his peers, _and_ the law of the land,) would convey a more intelligible and harmonious meaning than it otherwise does. Blackstone suggests that this may be the true reading. (_Charters_, p. 41.) Also Mr. Hallam, who says: "Nisi per legale judicium parium suorum, _vel_ per legem terræ. Several explanations have been offered of the alternative clause; which some have referred to judgment by default, or demurrer; others to the process of attachment for contempt. Certainly there are many legal procedures besides trial by jury, through which a party's goods or person may be taken. But one may doubt whether these were in contemplation of the framers of Magna Carta. In an entry of the Charter of 1217 by a contemporary hand, preserved in the Town-clerk's office in London, called Liber Custumarum et Regum antiquarum, a various reading, _et_ per legem terræ, occurs. _Blackstone's Charters_, p. 42 (41.) And the word _vel_ is so frequently used for _et_, that I am not wholly free from a suspicion that it was so intended in this place. The meaning will be, that no person shall be disseized, &c., except upon a lawful cause of action, found by the verdict of a jury. This really seems as good as any of the disjunctive interpretations; but I do not offer it with much confidence."--2 _Hallam's Middle Ages, Ch._ 8, _Part_ 2, p. 449, _note_.[32] The idea that the word _vel_ should be rendered by _and_, is corroborated, if not absolutely confirmed, by the following passage in Blackstone, which has before been cited. Speaking of the trial by jury, as established by Magna Carta, he calls it, "A privilege which is couched in almost the same words with that of the Emperor Conrad two hundred years before: 'nemo beneficium suum perdat, nisi secundum consuetudinem antecessorum nostrorum, _et_ judicium parium suorum.'" (No one shall lose his estate unless according to the custom of our ancestors, and the judgment of his peers.)--_3 Blackstone_, 350. If the word _vel_ be rendered by _and_, (as I think it must be, at least in some cases,) this chapter of Magna Carta will then read that no freeman shall be arrested or punished, "unless according to the sentence of his peers, _and_ the law of the land." The difference between this reading and the other is important. In the one case, there would be, at first view, some color of ground for saying that a man might be punished in either of two ways, viz., according to the sentence of his peers, _or_ according to the law of the land. In the other case, it requires both the sentence of his peers _and_ the law of the land (common law) to authorize his punishment. If this latter reading be adopted, the provision would seem to exclude all trials except trial by jury, and all causes of action except those of the _common law_. But I apprehend the word vel must be rendered both by _and_, and by _or_; that in cases of a _judgment_, it should be rendered by _and_, so as to require the concurrence both of "the judgment of the peers _and_ the law of the land," to authorize the king to make execution upon a party's goods or person; but that in cases of arrest and imprisonment, simply for the purpose of bringing a man to trial, _vel_ should be rendered by or, because there can have been no judgment of a jury in such a case, and "the law of the land" must therefore necessarily be the only guide to, and restraint upon, the king. If this guide and restraint were taken away, the king would be invested with an arbitrary and most dangerous power in making arrests, and confining in prison, under pretence of an intention to bring to trial. Having thus examined the language of this chapter of Magna Carta, so far as it relates to criminal cases, its legal import may be stated as follows, viz.: No freeman shall be arrested, or imprisoned, or deprived of his freehold, or his liberties, or free customs, or be outlawed, or exiled, or in any manner destroyed, (harmed,) nor will we (the king) proceed against him, nor send any one against him, by force or arms, unless according to (that is, in execution of) the sentence of his peers, _and_ (or _or_, as the case may require) the Common Law of England, (as it was at the time of Magna Carta, in 1215.) [Footnote 5: 1 Hume, Appendix 2.] [Footnote 6: Crabbe's History of the English Law, 236.] [Footnote 7: Coke says, "The king of England is armed with divers councils, one whereof is called _commune concilium_, (the common council,) and that is the court of parliament, and so it is _legally_ called in writs and judicial proceedings _commune concilium regni Angliæ_, (the common council of the kingdom of England.) And another is called _magnum concilium_, (great council;) this is sometimes applied to the upper house of parliament, and sometimes, out of parliament time, to the peers of the realm, lords of parliament, who are called _magnum concilium regis_, (the great council of the king;) * * Thirdly, (as every man knoweth,) the king hath a privy council for matters of state. * * The fourth council of the king are his judges for law matters." _1 Coke's Institutes, 110 a._] [Footnote 8: The Great Charter of Henry III., (1216 and 1225,) confirmed by Edward I., (1297,) makes no provision whatever for, or mention of, a parliament, unless the provision, (Ch. 37,) that "Escuage, (a military contribution,) from henceforth shall be taken like as it was wont to be in the time of King Henry our grandfather," mean that a parliament shall be summoned for that purpose.] [Footnote 9: The Magna Carta of John, (Ch. 17 and 18,) defines those who were entitled to be summoned to parliament, to wit, "The Archbishops, Bishops, Abbots, Earls, and Great Barons of the Realm, * * and all others who hold of us _in chief_." Those who held land of the king _in chief_ included none below the rank of knights.] [Footnote 10: The parliaments of that time were, doubtless, such as Carlyle describes them, when he says, "The parliament was at first a most simple assemblage, quite cognate to the situation; that Red William, or whoever had taken on him the terrible task of being King of England, was wont to invite, oftenest about Christmas time, his subordinate Kinglets, Barons as he called them, to give him the pleasure of their company for a week or two; there, in earnest conference all morning, in freer talk over Christmas cheer all evening, in some big royal hall of Westminster, Winchester, or wherever it might be, with log fires, huge rounds of roast and boiled, not lacking malmsey and other generous liquor, they took counsel concerning the arduous matters of the kingdom."] [Footnote 11: Hume, Appendix 2.] [Footnote 12: This point will be more fully established hereafter.] [Footnote 13: It is plain that the king and all his partisans looked upon the charter as utterly prostrating the king's legislative supremacy before the discretion of juries. When the schedule of liberties demanded by the barons was shown to him, (of which the trial by jury was the most important, because it was the only one that protected all the rest,) "the king, falling into a violent passion, asked, _Why the barons did not with these exactions demand his kingdom?_ * * _and with a solemn oath protested, that he would never grant such liberties as would make himself a slave_." * * But afterwards, "seeing himself deserted, and fearing they would seize his castles, he sent the Earl of Pembroke and other faithful messengers to them, to let them know _he would grant them the laws and liberties they desired_." * * But after the charter had been granted, "the king's mercenary soldiers, desiring war more than peace, were by their leaders continually whispering in his ears, _that he was now no longer king, but the scorn of other princes; and that it was more eligible to be no king, than such a one as he_." * * He applied "to the Pope, that he might by his apostolic authority make void what the barons had done. * * At Rome he met with what success he could desire, where all the transactions with the barons were fully represented to the Pope, and the Charter of Liberties shown to him, in writing; which, when he had carefully perused, he, with a furious look, cried out, _What! Do the barons of England endeavor to dethrone a king, who has taken upon him the Holy Cross, and is under the protection of the Apostolic See; and would they force him to transfer the dominions of the Roman Church to others? By St. Peter, this injury must not pass unpunished._ Then debating the matter with the cardinals, he, by a definitive sentence, damned and cassated forever the Charter of Liberties, and sent the king a bull containing that sentence at large."--_Echard's History of England_, p. 106-7. These things show that the nature and effect of the charter were well understood by the king and his friends; that they all agreed that he was effectually stripped of power. _Yet the legislative power had not been taken from him; but only the power to enforce his laws, unless juries should freely consent to their enforcement._] [Footnote 14: The laws were, at that time, all written in Latin.] [Footnote 15: "No man shall be condemned at the king's suit, either before the king in his bench, where pleas are _coram rege_, (before the king,) (and so are the words _nec super eum ibimus_, to be understood,) nor before any other commissioner or judge whatsoever, and so are the words _nec super eum mittemus_, to be understood, but by the judgment of his peers, that is, equals, or according to the law of the land."--_2 Coke's Inst._, 46.] [Footnote 16: Perhaps the assertion in the text should be made with this qualification--that the words "_per legem terræ_," (according to the law of the land,) and the words "_per legale judicium parium suorum_," (according to the _legal_ judgment of his peers,) imply that the king, before proceeding to any _executive_ action, will take notice of "the law of the land," and of the _legality_ of the judgment of the peers, and will _execute_ upon the prisoner nothing except what the law of the land authorizes, and no judgments of the peers, except _legal_ ones. With this qualification, the assertion in the text is strictly correct--that there is nothing in the whole chapter that grants to the king, or his judges, any _judicial_ power at all. The chapter only describes and _limits_ his _executive_ power.] [Footnote 17: See Blackstone's Law Tracts, page 294, Oxford Edition.] [Footnote 18: These Articles of the Charter are given in Blackstone's collection of Charters, and are also printed with the _Statutes of the Realm_. Also in Wilkins' Laws of the Anglo-Saxons, p. 356.] [Footnote 19: Lingard says, "The words, '_We will not destroy him, nor will we go upon him, nor will we send upon him_,' have been very differently expounded by different legal authorities. Their real meaning may be learned from John himself, who the next year promised by his letters patent ... nec super eos _per vim vel per arma_ ibimus, nisi per legem regni nostri, vel per judicium parium suorum in curia nostra, (nor will we go upon them _by force or by arms_, unless by the law of our kingdom, or the judgment of their peers in our court.) Pat. 16 Johan, apud Drad. 11, app. no. 124. He had hitherto been in the habit of _going_ with an armed force, or _sending_ an armed force on the lands, and against the castles, of all whom he knew or suspected to be his secret enemies, without observing any form of law."--3 Lingard, 47 note.] [Footnote 20: "_Judgment, judicium._ * * The sentence of the law, pronounced by the court, upon the matter contained in the record."--3 _Blackstone_, 395. _Jacob's Law Dictionary. Tomlin's do._ "_Judgment_ is the decision or sentence of the law, given by a court of justice or other competent tribunal, as the result of the proceedings instituted therein, for the redress of an injury."--_Bouvier's Law Dict._ "_Judgment, judicium._ * * Sentence of a judge against a criminal. * * Determination, decision in general."--_Bailey's Dict._ "_Judgment._ * * In a legal sense, a sentence or decision pronounced by authority of a king, or other power, either by their own mouth, or by that of their judges and officers, whom they appoint to administer justice in their stead."--_Chambers' Dict._ "_Judgment._ * * In law, the sentence or doom pronounced in any case, civil or criminal, by the judge or court by which it is tried."--_Webster's Dict._ Sometimes the punishment itself is called _judicium_, _judgment_; or, rather, it was at the time of Magna Carta. For example, in a statute passed fifty-one years after Magna Carta, it was said that a baker, for default in the weight of his bread, "debeat amerciari vel subire _judicium_ pillorie;" that is, ought to be amerced, or suffer the punishment, or judgment, of the pillory. Also that a brewer, for "selling ale contrary to the assize," "debeat amerciari, vel pati _judicium_ tumbrelli"; that is, ought to be amerced, or suffer the punishment, or judgment, of the tumbrel.--51 _Henry_ 3, _St._ 6. (1266.) Also the "_Statutes of uncertain date_," (but supposed to be prior to Edward III., or 1326,) provide, in chapters 6, 7, and 10, for "_judgment_ of the pillory."--_See 1 Ruffhead's Statutes_, 187, 188. 1 _Statutes of the Realm_, 203. Blackstone, in his chapter "Of _Judgment_, and its Consequences," says, "_Judgment_ (unless any matter be offered in arrest thereof) follows upon conviction; being the pronouncing of that punishment which is expressly ordained by law."--_Blackstone's Analysis of the Laws of England, Book 4, Ch. 29, Sec. 1. Blackstone's Law Tracts_, 126. Coke says, "_Judicium_ ... the judgment is the guide and direction of the execution." 3 _Inst._ 210.] [Footnote 21: This precedent from Germany is good authority, because the trial by jury was in use, in the northern nations of Europe generally, long before Magna Carta, and probably from time immemorial; and the Saxons and Normans were familiar with it before they settled in England.] [Footnote 22: _Beneficium_ was the legal name of an estate held by a feudal tenure. See Spelman's Glossary.] [Footnote 23: _Contenement_ of a freeman was the means of living in the condition of a freeman.] [Footnote 24: _Waynage_ was a villein's plough-tackle and carts.] [Footnote 25: Tomlin says, "The ancient practice was, when any such fine was imposed, to inquire by a jury _quantum inde regi dare valeat per annum, salva sustentatione sua et uxoris et liberorum suorum_, (how much is he able to give to the king per annum, saving his own maintenance, and that of his wife and children). And since the disuse of such inquest, it is never usual to assess a larger fine than a man is able to pay, without touching the implements of his livelihood; but to inflict corporal punishment, or a limited imprisonment, instead of such a fine as might amount to imprisonment for life. And this is the reason why fines in the king's courts are frequently denominated ransoms, because the penalty must otherwise fall upon a man's person, unless it be redeemed or ransomed by a pecuniary fine."--_Tomlin's Law Dict., word Fine._] [Footnote 26: Because juries were to fix the sentence, it must not be supposed that the king was _obliged_ to carry the sentence into execution; _but only that he could not go beyond the sentence_. He might pardon, or he might acquit on grounds of law, notwithstanding the sentence; but he could not punish beyond the extent of the sentence. Magna Carta does not prescribe that the king _shall punish_ according to the sentence of the peers; but only that he shall not punish _"unless according to" that sentence_. He may acquit or pardon, notwithstanding their sentence or judgment; but he cannot punish, except according to their judgment.] [Footnote 27: _The trial by battle_ was one in which the accused challenged his accuser to single combat, and staked the question of his guilt or innocence on the result of the duel. This trial was introduced into England by the Normans, within one hundred and fifty years before Magna Carta. It was not very often resorted to even by the Normans themselves; probably never by the Anglo-Saxons, unless in their controversies with the Normans. It was strongly discouraged by some of the Norman princes, particularly by Henry II., by whom the trial by jury was especially favored. It is probable that the trial by battle, so far as it prevailed at all in England, was rather tolerated as a matter of chivalry, than authorized as a matter of law. At any rate, it is not likely that it was included in the "_legem terræ_" of Magna Carta, although such duels have occasionally occurred since that time, and have, by some, been supposed to be lawful. I apprehend that nothing can be properly said to be a part of _lex terræ_, unless it can be shown either to have been of Saxon origin, or to have been recognized by Magna Carta. _The trial by ordeal_ was of various kinds. In one ordeal the accused was required to take hot iron in his hand; in another to walk blindfold among red-hot ploughshares; in another to thrust his arm into boiling water; in another to be thrown, with his hands and feet bound, into cold water; in another to swallow the _morsel of execration_; in the confidence that his guilt or innocence would be miraculously made known. This mode of trial was nearly extinct at the time of Magna Carta, and it is not likely that it was included in "_legem terræ_," as that term is used in that instrument. This idea is corroborated by the fact that the trial by ordeal was specially prohibited only four years after Magna Carta, "by act of Parliament in 3 Henry III., according to Sir Edward Coke, or rather by an order of the king in council."--_3 Blackstone_ 345, _note_. I apprehend that this trial was never forced upon accused persons, but was only allowed to them, _as an appeal to God_, from the judgment of a jury.[33] _The trial by compurgators_ was one in which, if the accused could bring twelve of his neighbors, who would make oath that they believed him innocent, he was held to be so. It is probable that this trial was really the trial by jury, or was allowed as an appeal from a jury. It is wholly improbable that two different modes of trial, so nearly resembling each other as this and the trial by jury do, should prevail at the same time, and among a rude people, whose judicial proceedings would naturally be of the simplest kind. But if this trial really were any other than the trial by jury, it must have been nearly or quite extinct at the time of Magna Carta; and there is no probability that it was included in "_legem terræ_."] [Footnote 28: Coke attempts to show that there is a distinction between amercements and fines--admitting that amercements must be fixed by one's peers, but claiming that fines may be fixed by the government. (_2 Inst._ 27, _8 Coke's Reports_ 38.) But there seems to have been no ground whatever for supposing that any such distinction existed at the time of Magna Carta. If there were any such distinction in the time of Coke, it had doubtless grown up within the four centuries that had elapsed since Magna Carta, and is to be set down as one of the numberless inventions of government for getting rid of the restraints of Magna Carta, and for taking men out of the protection of their peers, and subjecting them to such punishments as the government chooses to inflict. The first statute of Westminster, passed sixty years after Magna Carta, treats the fine and amercement as synonymous, as follows: "Forasmuch as _the common fine and amercement_ of the whole county in Eyre of the justices for false judgments, or for other trespass, is unjustly assessed by sheriffs and baretors in the shires, * * it is provided, and the king wills, that from henceforth such sums shall be assessed before the justices in Eyre, afore their departure, _by the oath of knights and other honest men_," &c.--_3 Edward I., Ch._ 18. (1275.) And in many other statutes passed after Magna Carta, the terms _fine_ and _amercement_ seem to be used indifferently, in prescribing the punishment for offences. As late as 1461, (246 years after Magna Carta,) the statute _1 Edward IV., Ch._ 2, speaks of "_fines, ransoms, and amerciaments_" as being levied upon criminals, as if they were the common punishments of offences. _St._ 2 and 3 _Philip and Mary, Ch._ 8, uses the terms, "_fines, forfeitures, and amerciaments_" five times. (1555.) _St. 5 Elizabeth, Ch._ 13, _Sec._ 10, uses the terms "_fines, forfeitures, and amerciaments_." That amercements were fines, or pecuniary punishments, inflicted for offences, is proved by the following statutes, (all supposed to have been passed within one hundred and fifteen years after Magna Carta,) which speak of amercements as a species of "_judgment_," or punishment, and as being inflicted for the same offences as other "judgments." Thus one statute declares that a baker, for default in the weight of his bread, "ought to be _amerced_, or suffer the _judgment_ of the pillory;" and that a brewer, for "selling ale contrary to the assize," "ought to be _amerced_, or suffer the _judgment_ of the tumbrel."--_51 Henry III., St._ 6. (1266.) Among the "_Statutes of Uncertain Date_," but supposed to be prior to Edward III., (1326,) are the following: _Chap._ 6 provides that "if a brewer break the assize, (fixing the price of ale,) the first, second, and third time, he shall be _amerced_; but the fourth time he shall suffer _judgment_ of the pillory without redemption." _Chap._ 7 provides that "a butcher that selleth swine's flesh measled, or flesh dead of the murrain, or that buyeth flesh of Jews, and selleth the same unto Christians, after he shall be convict thereof, for the first time he shall be grievously _amerced_; the second time he shall suffer _judgment_ of the pillory; and the third time he shall be imprisoned and make _fine_; and the fourth time he shall forswear the town." _Chap. 10_, a statute against _forestalling_, provides that, "He that is convict thereof, the first time shall be _amerced_, and shall lose the thing so bought, and that according to the custom of the town; he that is convicted the second time shall have _judgment_ of the pillory; at the third time he shall be imprisoned and make _fine_; the fourth time he shall abjure the town. And this _judgment_ shall be given upon all manner of forestallers, and likewise upon them that have given them counsel, help, or favor."--_1 Ruffhead's Statutes_, 187, 188. _1 Statutes of the Realm_, 203.] [Footnote 29: 1 Hume, Appendix, 1.] [Footnote 30: Blackstone says, "Our ancient Saxon laws nominally punished theft with death, if above the value of twelve pence; but the criminal was permitted to redeem his life by a pecuniary ransom, as among their ancestors, the Germans, by a stated number of cattle. But in the ninth year of Henry the First, (1109,) this power of redemption was taken away, and all persons guilty of larceny above the value of twelve pence were directed to be hanged, which law continues in force to this day."--_4 Blackstone_, 238. I give this statement of Blackstone, because the latter clause may seem to militate with the idea, which the former clause corroborates, viz., that at the time of Magna Carta, fines were the usual punishments of offences. But I think there is no probability that a law so unreasonable in itself, (unreasonable even after making all allowance for the difference in the value of money,) and so contrary to immemorial custom, could or did obtain any general or speedy acquiescence among a people who cared little for the authority of kings. Maddox, writing of the period from William the Conqueror to John, says: "The amercements in criminal and common pleas, which were wont to be imposed during this first period and afterwards, were of so many several sorts, that it is not easy to place them under distinct heads. Let them, for method's sake, be reduced to the heads following: Amercements for or by reason of murders and manslaughters, for misdemeanors, for disseisins, for recreancy, for breach of assize, for defaults, for non-appearance, for false judgment, and for not making suit, or hue and cry. To them may be added miscellaneous amercements, for trespasses of divers kinds."--_1 Maddox' History of the Exchequer_, 542.] [Footnote 31: Coke, in his exposition of the words _legem terræ_, gives quite in detail the principles of the common law governing _arrests_; and takes it for granted that the words "_nisi per legem terræ_" are applicable to arrests, as well as to the indictment, &c.--2 _Inst._, 51,52.] [Footnote 32: I cite the above extract from Mr. Hallam solely for the sake of his authority for rendering the word _vel_ by _and_; and not by any means for the purpose of indorsing the opinion he suggests, that _legem terræ_ authorized "judgments by default or demurrer," _without the intervention of a jury_. He seems to imagine that _lex terræ_, the common law, at the time of Magna Carta, included everything, even to the practice of courts, that is, _at this day_, called by the name of _Common Law_; whereas much of what is _now_ called Common Law has grown up, by usurpation, since the time of Magna Carta, in palpable violation of the authority of that charter. He says, "Certainly there are many legal procedures, besides _trial_ by jury, through which a party's goods or person may be taken." Of course there are _now_ many such ways, in which a party's goods or person _are_ taken, besides by the judgment of a jury; but the question is, whether such takings are not in violation of Magna Carta. He seems to think that, in cases of "judgment by default or demurrer," there is no need of a jury, and thence to infer that _legem terræ_ may not have required a jury in those cases. But this opinion is founded on the erroneous idea that juries are required only for determining contested _facts_, and not for judging of the law. In case of default, the plaintiff must present a _prima facie_ case before he is entitled to a judgment; and Magna Carta, (supposing it to require a jury trial in civil cases, as Mr. Hallam assumes that it does,) as much requires that this _prima facie_ case, both law and fact, be made out to the satisfaction of a jury, as it does that a contested case shall be. As for a demurrer, the jury must try a demurrer (having the advice and assistance of the court, of course) as much as any other matter of law arising in a case. Mr. Hallam evidently thinks there is no use for a jury, except where there is a "_trial_"--meaning thereby a contest on matters of _fact_. His language is, that "there are many legal procedures, besides _trial_ by jury, through which a party's goods or person may be taken." Now Magna Carta says nothing of _trial_ by jury; but only of the _judgment_, or sentence, of a jury. It is only _by inference_ that we come to the conclusion that there must be a _trial_ by jury. Since the jury alone can give the _judgment_, or _sentence_, we _infer_ that they must _try_ the case; because otherwise they would be incompetent, and would have no moral right, to give _judgment_. They must, therefore, examine the grounds, (both of law and fact,) or rather _try_ the grounds, of every action whatsoever, whether it be decided on "default, demurrer," or otherwise, and render their judgment, or sentence, thereon, before any judgment can be a legal one, on which "to take a party's goods or person." In short, the principle of Magna Carta is, that no judgment can be valid _against a party's goods or person_, (not even a judgment for costs,) except a judgment rendered by a jury. Of course a jury must try every question, both of law and fact, that is involved in the rendering of that judgment. They are to have the assistance and advice of the judges, so far as they desire them; but the judgment itself must be theirs, and not the judgment of the court. As to "process of attachment for contempt," it is of course lawful for a judge, in his character of a peace officer, to issue a warrant for the arrest of a man guilty of a contempt, as he would for the arrest of any other offender, and hold him to bail, (or, in default of bail, commit him to prison,) to answer for his offence before a jury. Or he may order him into custody without a warrant when the offence is committed in the judge's presence. But there is no reason why a judge should have the power of _punishing_ for contempt, any more than for any other offence. And it is one of the most dangerous powers a judge can have, because it gives him absolute authority in a court of justice, and enables him to tyrannize as he pleases over parties, counsel, witnesses, and jurors. If a judge have power to punish for contempt, and to determine for himself what is a contempt, the whole administration of justice (or injustice, if he choose to make it so) is in his hands. And all the rights of jurors, witnesses, counsel, and parties, are held subject to his pleasure, and can be exercised only agreeably to his will. He can of course control the entire proceedings in, and consequently the decision of, every cause, by restraining and punishing every one, whether party, counsel, witness, or juror, who presumes to offer anything contrary to his pleasure. This arbitrary power, which has been usurped and exercised by judges to punish for contempt, has undoubtedly had much to do in subduing counsel into those servile, obsequious, and cowardly habits, which so universally prevail among them, and which have not only cost so many clients their rights, but have also cost the people so many of their liberties. If any _summary_ punishment for contempt be ever necessary, (as it probably is not,) beyond exclusion for the time being from the court-room, (which should be done, not as a punishment, but for self-protection, and the preservation of order,) the judgment for it should be given by the jury, (where the trial is before a jury,) and not by the court, for the jury, and not the court, are really the judges. For the same reason, exclusion from the court-room should be ordered only by the jury, in cases when the trial is before a jury, because they, being the real judges and triers of the cause, are entitled, if anybody, to the control of the court-room. In appeal courts, where no juries sit, it may be necessary--not as a punishment, but for self-protection, and the maintenance of order--that the court should exercise the power of excluding a person, for the time being, from the court-room; but there is no reason why they should proceed to sentence him as a criminal, without his being tried by a jury. If the people wish to have their rights respected and protected in courts of justice, it is manifestly of the last importance that they jealously guard the liberty of parties, counsel, witnesses, and jurors, against all arbitrary power on the part of the court. Certainly Mr. Hallam may very well say that "one may doubt whether these (the several cases he has mentioned) were in contemplation of the framers of Magna Carta"--that is, as exceptions to the rule requiring that all judgments, that are to be enforced "_against a party's goods or person_," be rendered by a jury. Again, Mr. Hallam says, if the word _vel_ be rendered by _and_, "the meaning will be, that no person shall be disseized, &c., _except upon a lawful cause of action_." This is true; but it does not follow that any cause of action, founded on _statute only_, is therefore a "_lawful_ cause of action," within the meaning of _legem terræ_, or the _Common Law_. Within the meaning of the _legem terræ_ of Magna Carta, nothing but a _common law_ cause of action is a "_lawful_" one.] [Footnote 33: Hallam says, "It appears as if the ordeal were permitted to persons already convicted by this verdict of a jury."--_2 Middle Ages_, 446, _note_.] CHAPTER III. ADDITIONAL PROOFS OF THE RIGHTS AND DUTIES OF JURORS. If any evidence, extraneous to the history and language of Magna Carta, were needed to prove that, by that chapter which guaranties the trial by jury, all was meant that has now been ascribed to it, and _that the legislation of the king was to be of no authority with the jury beyond what they chose to allow to it_, and that the juries were to limit the punishments to be inflicted, we should find that evidence in various sources, such as the laws, customs, and characters of their ancestors on the continent, and of the northern Europeans generally; in the legislation and customs that immediately succeeded Magna Carta; in the oaths that have at different times been administered to jurors, &c., &c. This evidence can be exhibited here but partially. To give it all would require too much space and labor. SECTION I. _Weakness of the Regal Authority._ Hughes, in his preface to his translation of Horne's "_Mirror of Justices_," (a book written in the time of Edward I., 1272 to 1307,) giving a concise view of the laws of England generally, says: "Although in the Saxon's time I find the usual words of the acts then to have been _edictum_, (edict,) _constitutio_, (statute,) little mention being made of the commons, yet I further find that, _tum demum leges vim et vigerem habuerunt, cum fuerunt non modo institutæ sed firmatæ approbatione communitatis_." (The laws had force and vigor only when they were not only enacted, but confirmed by the approval of the community.) The _Mirror of Justices_ itself also says, (ch. 1, sec. 3,) in speaking "_Of the first Constitutions of the Ancient Kings_:" "Many ordinances were made by many kings, until the time of the king that now is (Edward I.); the which ordinances were abused, _or not used by many, nor very current_, because they were not put in writing, and certainly published."--_Mirror of Justices_, p. 6. Hallam says: "The Franks, Lombards, and Saxons seem alike to have been jealous of judicial authority; and averse to surrendering what concerned every man's private right, out of the hands of his neighbors and equals."--_1 Middle Ages_, 271. The "judicial authority," here spoken of, was the authority of the kings, (who at that time united the office of both legislators and judges,) and not of a separate department of government, called the judiciary, like what has existed in more modern times.[34] Hume says: "The government of the Germans, and that of all the northern nations, who established themselves on the ruins of Rome, was always extremely free; and those fierce people, accustomed to independence and inured to arms, _were more guided by persuasion than authority, in the submission which they paid to their princes_. The military despotism, which had taken place in the Roman empire, and which, previously to the irruption of those conquerors, had sunk the genius of men, and destroyed every noble principle of science and virtue, was unable to resist the vigorous efforts of a free people, and Europe, as from a new epoch, rekindled her ancient spirit, and shook off the base servitude to arbitrary will and authority under which she had so long labored. The free constitutions then established, however impaired by the encroachments of succeeding princes, still preserve an air of independence and legal administration, which distinguished the European nations; and if that part of the globe maintain sentiments of liberty, honor, equity, and valor, superior to the rest of mankind, it owes these advantages chiefly to the seeds implanted by those generous barbarians. "_The Saxons, who subdued Britain, as they enjoyed great liberty in their own country, obstinately retained that invaluable possession in their new settlement; and they imported into this island the same principles of independence, which they had inherited from their ancestors. The chieftains, (for such they were, more than kings or princes,) who commanded them in those military expeditions, still possessed a very limited authority_; and as the Saxons exterminated, rather than subdued the ancient inhabitants, they were, indeed, transplanted into a new territory, _but preserved unaltered all their civil and military institutions_. The language was pure Saxon; even the names of places, which often remain while the tongue entirely changes, were almost all affixed by the conquerors; the manners and customs were wholly German; and the same picture of a fierce and bold liberty, which is drawn by the masterly pen of Tacitus, will suit those founders of the English government. _The king, so far from being invested with arbitrary power, was only considered as the first among the citizens; his authority depended more on his personal qualities than on his station; he was even so far on a level with the people, that a stated price was fixed for his head, and a legal fine was levied upon his murderer, which though proportionate to his station, and superior to that paid for the life of a subject, was a sensible mark of his subordination to the community._"--_1 Hume_, _Appendix_, 1. Stuart says: "The Saxons brought along with them into Britain their own customs, language, and civil institutions. Free in Germany, they renounced not their independence, when they had conquered. Proud from victory, and with their swords in their hands, would they surrender their liberties to a private man? Would temporary leaders, limited in their powers, and unprovided in resources, ever think to usurp an authority over warriors, who considered themselves as their equals, were impatient of control, and attached with devoted zeal to their privileges? Or, would they find leisure to form resolutions, or opportunities to put them in practice, amidst the tumult and confusion of those fierce and bloody wars, which their nations first waged with the Britons, and then engaged in among themselves? Sufficiently flattered in leading the armies of their countrymen, the ambition of commanders could as little suggest such designs, as the liberty of the people could submit to them. The conquerors of Britain retained their independence; and this island saw itself again in that free state in which the Roman arms had discovered it. "The same firmness of character, and generosity of manners, which, in general, distinguished the Germans, were possessed in an eminent degree by the Saxons; and while we endeavor to unfold their political institutions, we must perpetually turn our observation to that masterly picture in which the Roman historian has described these nations. In the woods of Germany shall we find the principles which directed the state of land, in the different kingdoms of Europe; and there shall we find the foundation of those ranks of men, and of those civil arrangements, which the barbarians everywhere established; and which the English alone have had the good fortune, or the spirit, to preserve."--_Stuart on the Constitution of England_, p. 59-61. "Kings they (the Germans) respected as the first magistrates of the state; but the authority possessed by them was narrow and limited."--_Ditto_, p. 134. "Did he, (the king,) at any time, relax his activity and martial ardor, did he employ his abilities to the prejudice of his nation, or fancy he was superior to the laws; the same power which raised him to honor, humbled and degraded him. The customs and councils of his country pointed out to him his duty; and if he infringed on the former, or disobeyed the latter, a fierce people set aside his authority. * * "His long hair was the only ornament he affected, and to be foremost to attack an enemy was his chief distinction. Engaged in every hazardous expedition, he was a stranger to repose; and, rivalled by half the heroes of his tribe, he could obtain little power. Anxious and watchful for the public interest, he felt every moment his dependence, and gave proofs of his submission. "He attended the general assembly of his nation, and was allowed the privilege to harangue it first; but the arts of persuasion, though known and respected by a rude people, were unequally opposed to the prejudices and passions of men."--_Ditto_, p. 135-6. "_The authority of a Saxon monarch was not more considerable. The Saxons submitted not to the arbitrary rule of princes. They administered an oath to their sovereigns, which bound them to acknowledge the laws, and to defend the rights of the church and people; and if they forgot this obligation, they forfeited their office._ In both countries, a price was affixed on kings, a fine expiated their murder, as well as that of the meanest citizen; and the smallest violation of ancient usage, or the least step towards tyranny, was always dangerous, and often fatal to them."--_Ditto_, p. 139-40. "They were not allowed to impose taxes on the kingdom."--_Ditto_, p. 146. "Like the German monarchs, they deliberated in the general assembly of the nation; _but their legislative authority was not much respected_; and their assent was considered in no better light than as a form. This, however, was their chief prerogative; and they employed it to acquire an ascendant in the state. To art and insinuation they turned, as their only resource, and flattered a people whom they could not awe; but address, and the abilities to persuade, were a weak compensation for the absence of real power. "They declared war, it is said, and made peace. In both cases, however, they acted as the instruments of the state, and put in execution the resolutions which its councils had decreed. If, indeed, an enemy had invaded the kingdom, and its glory and its safety were concerned, the great lords took the field at the call of their sovereign. But had a sovereign declared war against a neighboring state, without requiring their advice, or if he meant to revenge by arms an insult offered to him by a subject, a haughty and independent nobility refused their assistance. These they considered as the quarrels of the king, and not of the nation; and in all such emergencies he could only be assisted by his retainers and dependents."--_Ditto_, p. 147-8. "Nor must we imagine that the Saxon, any more than the German monarchs, succeeded each other in a lineal descent,[35] or that they disposed of the crown at their pleasure. In both countries, the free election of the people filled the throne; and their choice was the only rule by which princes reigned. The succession, accordingly, of their kings was often broken and interrupted, and their depositions were frequent and groundless. The will of a prince whom they had long respected, and the favor they naturally transferred to his descendant, made them often advance him to the royal dignity; but the crown of his ancestor he considered as the gift of the people, and neither expected nor claimed it as a right."--_Ditto_, p. 151-3. In Germany "It was the business of the great to command in war, and in peace they distributed justice. * * "The _princes_ in Germany were _earls_ in England. The great contended in both countries in the number of their retainers, and in that splendor and magnificence which are so alluring to a rude people; and though they joined to set bounds to regal power, they were often animated against each other with the fiercest hatred. To a proud and impatient nobility it seemed little and unsuiting to give or accept compositions for the injuries they committed or received; and their vassals adopting their resentment and passions, war and bloodshed alone could terminate their quarrels. What necessarily resulted from their situation in society, was continued as a _privilege_; and the great, in both countries, made war, of their private authority, on their enemies. The Saxon earls even carried their arms against their sovereigns; and, surrounded with retainers, or secure in fortresses and castles, they despised their resentment, and defied their power. "The judges of the people, they presided in both countries in courts of law.[36] The particular districts over which they exerted their authority were marked out in Germany by the council of the state; and in England their jurisdiction extended over the fiefs and other territories they possessed. All causes, both civil and criminal, were tried before them; and they judged, except in cases of the utmost importance, without appeal. They were even allowed to grant pardon to criminals, and to correct by their clemency the rigors of justice. Nor did the sovereign exercise any authority in their lands. In these his officers formed no courts, and his _writ_ was disregarded. * * "They had officers, as well as the king, who collected their revenues, and added to their greatness; and the inhabitants of their lands they distinguished by the name of _subjects_. "But to attend the general assembly of their nation was the chief prerogative of the German and Saxon princes; and as they consulted the interest of their country, and deliberated concerning matters of state, so in the _king's court_, of which also they were members, they assisted to pronounce judgment in the complaints and appeals which were lodged in it."--_Ditto_, p. 158 to 165. Henry says: "Nothing can be more evident than this important truth; that our Anglo-Saxon kings were not absolute monarchs; but that their powers and prerogatives were limited by the laws and customs of the country. Our Saxon ancestors had been governed by limited monarchs in their native seats on the continent; and there is not the least appearance or probability that they relinquished their liberties, and submitted to absolute government in their new settlements in this island. It is not to be imagined that men, whose reigning passion was the love of liberty, would willingly resign it; and their new sovereigns, who had been their fellow-soldiers, had certainly no power to compel them to such a resignation."--_3 Henry's History of Great Britain_, 358. Mackintosh says: "The Saxon chiefs, who were called kings, originally acquired power by the same natural causes which have gradually, and everywhere, raised a few men above their fellows. They were, doubtless, more experienced, more skilful, more brave, or more beautiful, than those who followed them. * * A king was powerful in war by the lustre of his arms, and the obvious necessity of obedience. His influence in peace fluctuated with his personal character. In the progress of usage his power became more fixed and more limited. * * It would be very unreasonable to suppose that the northern Germans who had conquered England, had so far changed their characteristic habits from the age of Tacitus, that the victors became slaves, and that their generals were converted into tyrants."--_Mackintosh's Hist. of England, Ch. 2._ _45 Lardner's Cab. Cyc._, 73-4. Rapin, in his discourse on the "Origin and Nature of the English Constitution," says: "There are but two things the Saxons did not think proper to trust their kings with; for being of like passions with other men, they might very possibly abuse them; namely, the power of changing the laws enacted by consent of king and people; and the power of raising taxes at pleasure. From these two articles sprung numberless branches concerning the liberty and property of the subject, which the king cannot touch, without breaking the constitution, and they are the distinguishing character of the English monarchy. The prerogatives of the crown, and the rights and privileges of the people, flowing from the two fore-mentioned articles, are the ground of all the laws that from time to time have been made by unanimous consent of king and people. The English government consists in the strict union of the king's prerogatives with the people's liberties. * * But when kings arose, as some there were, that aimed at absolute power, by changing the old, and making new laws, at pleasure; by imposing illegal taxes on the people; this excellent government being, in a manner, dissolved by these destructive measures, confusion and civil wars ensued, which some very wrongfully ascribe to the fickle and restless temper of the English."--_Rapin's Preface to his History of England._ Hallam says that among the Saxons, "the royal authority was weak."--_2 Middle Ages_, 403. But although the king himself had so little authority, that it cannot be supposed for a moment that his laws were regarded as imperative by the people, it has nevertheless been claimed, in modern times, by some who seem determined to find or make a precedent for the present legislative authority of parliament, that his laws were authoritative, _when assented to_ by the _Witena-gemote_, or assembly of wise men--that is, the bishops and barons. But this assembly evidently had no legislative power whatever. The king would occasionally invite the bishops and barons to meet him for consultation on public affairs, _simply as a council_, and not as a legislative body. Such as saw fit to attend, did so. If they were agreed upon what ought to be done, the king would pass a law accordingly, and the barons and bishops would then return and inform the people orally what laws had been passed, and use their influence with them to induce them to conform to the law of the king, and the recommendation of the council. And the people no doubt were much more likely to accept a law of the king, if it had been approved by this council, than if it had not. But it was still only a law of the king, which they obeyed or disregarded according to their own notions of expediency. The numbers who usually attended this council were too small to admit of the supposition that they had any legislative authority whatever, to impose laws upon the people against their will. Lingard says: "It was necessary that the king should obtain the assent of these (the members of the Witena-gemotes) to all legislative enactments; _because, without their acquiescence and support, it was impossible to carry them into execution_. To many charters (laws) we have the signatures of the Witan. _They seldom exceed thirty in number; they never amount to sixty._"--_1 Lingard_, 486. It is ridiculous to suppose that the assent of such an assembly gave any _authority_ to the laws of the king, or had any influence in securing obedience to them, otherwise than by way of persuasion. If this body had had any real legislative authority, such as is accorded to legislative bodies of the present day, they would have made themselves at once the most conspicuous portion of the government, and would have left behind them abundant evidence of their power, instead of the evidence simply of their assent to a few laws passed by the king. More than this. If this body had had any real legislative authority, they would have constituted an aristocracy, having, in conjunction with the king, absolute power over the people. Assembling voluntarily, merely on the invitation of the king; deputed by nobody but themselves; representing nobody but themselves; responsible to nobody but themselves; their legislative authority, if they had had any, would of necessity have made the government the government of an aristocracy merely, _and the people slaves, of course_. And this would necessarily have been the picture that history would have given us of the Anglo-Saxon government, _and of Anglo-Saxon liberty_. The fact that the people had no representation in this assembly, and the further fact that, through their juries alone, they nevertheless maintained that noble freedom, the very tradition of which (after the substance of the thing itself has ceased to exist) has constituted the greatest pride and glory of the nation to this day, _prove_ that this assembly exercised no authority which juries of the people acknowledged, except at their own discretion.[37] There is not a more palpable truth, in the history of the Anglo-Saxon government, than that stated in the Introduction to Gilbert's History of the Common Pleas,[38] viz., "_that the County and Hundred Courts_," (to which should have been added the other courts in which juries sat, the courts-baron and court-leet,) "_in those times were the real and only Parliaments of the kingdom_." And why were they the real and only parliaments of the kingdom? Solely because, as will be hereafter shown, the juries in those courts tried causes on their intrinsic merits, according to their own ideas of justice, irrespective of the laws agreed upon by kings, priests, and barons; and whatever principles they uniformly, or perhaps generally, enforced, _and none others_, became practically the law of the land as matter of course.[39] Finally, on this point. Conclusive proof that the legislation of the king was of little or no authority, is found in the fact _that the kings enacted so few laws_. If their laws had been received as authoritative, in the manner that legislative enactments are at this day, they would have been making laws continually. Yet the codes of the most celebrated kings are very small, and were little more than compilations of immemorial customs. The code of Alfred would not fill twelve pages of the statute book of Massachusetts, and was little or nothing else than a compilation of the laws of Moses, and the Saxon customs, evidently collected from considerations of convenience, rather than enacted on the principle of authority. The code of Edward the Confessor would not fill twenty pages of the statute book of Massachusetts, and, says Blackstone, "seems to have been no more than a new edition, or fresh promulgation of Alfred's code, or _dome-book_, with such additions and improvements as the experience of a century and a half suggested."--_1 Blackstone_, 66.[40] The Code of William the Conqueror[41] would fill less than seven pages of the statute book of Massachusetts; and most of the laws contained in it are taken from the laws of the preceding kings, and especially of Edward the Confessor (whose laws William swore to observe); but few of his own being added. The codes of the other Saxon and Norman kings were, as a general rule, less voluminous even than these that have been named; and probably did not exceed them in originality.[42] The Norman princes, from William the Conqueror to John, I think without exception, bound themselves, and, in order to maintain their thrones, were obliged to bind themselves, to observe the ancient laws and customs, in other words, the "_lex terræ_," or "_common law_" of the kingdom. Even Magna Carta contains hardly anything other than this same "_common law_," with some new securities for its observance. How is this abstinence from legislation, on the part of the ancient kings, to be accounted for, except on the supposition that the people would accept, and juries enforce, few or no new laws enacted by their kings? Plainly it can be accounted for in no other way. In fact, all history informs us that anciently the attempts of the kings to introduce or establish new laws, met with determined resistance from the people, and generally resulted in failure. "_Nolumus Leges Angliæ mutari_," (we will that the laws of England be not changed,) was a determined principle with the Anglo-Saxons, from which they seldom departed, up to the time of Magna Carta, and indeed until long after.[43] SECTION II. _The Ancient Common Law Juries were mere Courts of Conscience._ But it is in the administration of justice, or of law, that the freedom or subjection of a people is tested. If this administration be in accordance with the arbitrary will of the legislator--that is, if his will, as it appears in his statutes, be the highest rule of decision known to the judicial tribunals,--the government is a despotism, and the people are slaves. If, on the other hand, the rule of decision be those principles of natural equity and justice, which constitute, or at least are embodied in, the general conscience of mankind, the people are free in just so far as that conscience is enlightened. That the authority of the king was of little weight with the _judicial tribunals_, must necessarily be inferred from the fact already stated, that his authority over the _people_ was but weak. If the authority of his laws had been paramount in the judicial tribunals, it would have been paramount with the people, of course; because they would have had no alternative but submission. The fact, then, that his laws were _not_ authoritative with the people, is proof that they were _not_ authoritative with the tribunals--in other words, that they were not, as matter of course, enforced by the tribunals. But we have additional evidence that, up to the time of Magna Carta, the laws of the king were not binding upon the judicial tribunals; and if they were not binding before that time, they certainly were not afterwards, as has already been shown from Magna Carta itself. It is manifest from all the accounts we have of the courts in which juries sat, prior to Magna Carta, such as the court-baron, the hundred court, the court-leet, and the county court, _that they were mere courts of conscience, and that the juries were the judges, deciding causes according to their own notions of equity, and not according to any laws of the king, unless they thought them just_. These courts, it must be considered, were very numerous, and held very frequent sessions. There were probably seven, eight, or nine hundred courts _a month_, in the kingdom; the object being, as Blackstone says, "_to bring justice home to every man's door_." (_3 Blackstone_, 30.) The number of the _county_ courts, of course, corresponded to the number of counties, (36.) The _court-leet_ was the criminal court for a district less than a county. The _hundred court_ was the court for one of those districts anciently called a _hundred_, because, at the time of their first organization for judicial purposes, they comprised (as is supposed) but a hundred families.[44] The court-baron was the court for a single manor, and there was a court for every manor in the kingdom. All these courts were holden as often as once in three or five weeks; the county court once a month. The king's judges were present at none of these courts; the only officers in attendance being sheriffs, bailiffs, and stewards, merely ministerial, and not judicial, officers; doubtless incompetent, and, if not incompetent, untrustworthy, for giving the juries any reliable information in matters of law, beyond what was already known to the jurors themselves. And yet these were the courts, in which was done all the judicial business, both civil and criminal, of the nation, except appeals, and some of the more important and difficult cases.[45] It is plain that the juries, in these courts, must, of necessity, have been the sole judges of all matters of law whatsoever; because there was no one present, but sheriffs, bailiffs, and stewards, to give them any instructions; and surely it will not be pretended that the jurors were bound to take their law from such sources as these. In the second place, it is manifest that the principles of law, by which the juries determined causes, were, as a general rule, nothing else than their own ideas of natural equity, _and not any laws of the king_; because but few laws were enacted, and many of those were not written, but only agreed upon in council.[46] Of those that were written, few copies only were made, (printing being then unknown,) and not enough to supply all, or any considerable number, of these numerous courts. Beside and beyond all this, few or none of the jurors could have read the laws, if they had been written; because few or none of the common people could, at that time, read. Not only were the common people unable to read their own language, but, at the time of Magna Carta, the laws were written in Latin, a language that could be read by few persons except the priests, who were also the lawyers of the nation. Mackintosh says, "the first act of the House of Commons composed and recorded in the English tongue," was in 1415, two centuries after Magna Carta.[47] Up to this time, and for some seventy years later, the laws were generally written either in Latin or French; both languages incapable of being read by the common people, as well Normans as Saxons; and one of them, the Latin, not only incapable of being read by them, but of being even understood when it was heard by them. To suppose that the people were bound to obey, and juries to enforce, laws, many of which were unwritten, none of which _they_ could read, and the larger part of which (those written in Latin) they could not translate, or understand when they heard them read, is equivalent to supposing the nation sunk in the most degrading slavery, instead of enjoying a liberty of their own choosing. Their knowledge of the laws passed by the king was, of course, derived only from oral information; and "_the good laws_," as some of them were called, in contradistinction to others--those which the people at large esteemed to be good laws--were doubtless enforced by the juries, and the others, as a general thing, disregarded.[48] That such was the nature of judicial proceedings, and of the power of juries, up to the time of Magna Carta, is further shown by the following authorities. "The sheriffs and bailiffs caused the free tenants of their bailiwics to meet at their counties and hundreds; _at which justice was so done, that every one so judged his neighbor by such judgment as a man could not elsewhere receive in the like cases_, until such times as the customs of the realm were put in writing, and certainly published. "And although a freeman commonly was not to serve (as a juror or judge) without his assent, nevertheless it was assented unto that free tenants should meet together in the counties and hundreds, and lords courts, if they were not specially exempted to do such suits, and _there judged their neighbors_."--_Mirror of Justices_, p. 7, 8. Gilbert, in his treatise on the Constitution of England, says: "In the county courts, if the debt was above forty shillings, there issued a _justicies_ (a commission) to the sheriff, to enable him to hold such a plea, _where the suitors_ (_jurors_) _are judges of the law and fact_."--_Gilbert's Cases in Law and Equity, &c., &c._, 456. All the ancient writs, given in Glanville, for summoning jurors, indicate that the jurors judged of everything, _on their consciences only_. The writs are in this form: "Summon twelve free and legal men (or sometimes twelve knights) to be in court, _prepared upon their oaths to declare whether A or B have the greater right to the land_ (_or other thing_) _in question_." See Writs in Beames' Glanville, p. 54 to 70, and 233-306 to 332. Crabbe, speaking of the time of Henry I., (1100 to 1135,) recognizes the fact that the jurors were the judges. He says: "By one law, every one was to be tried by his peers, who were of the same neighborhood as himself. * * By another law, _the judges, for so the jury were called_, were to be chosen by the party impleaded, after the manner of the Danish _nembas_; by which, probably, is to be understood that the defendant had the liberty of taking exceptions to, or challenging the jury, as it was afterwards called."--_Crabbe's History of the English Law_, p. 55. Reeve says: "The great court for _civil_ business was the _county court_; held once every four weeks. Here the sheriff presided; _but the suitors of the court, as they were called, that is, the freemen or landholders of the county, were the judges_; and the sheriff was to execute the judgment. * * "The _hundred court_ was held before _some bailiff_; the _leet_ before the lord of the manor's steward.[49] * * "Out of the county court was derived an inferior court of _civil_ jurisdiction, called the _court-baron_. This was held from three weeks to three weeks, and _was in every respect like the county court_;" (_that is, the jurors were judges in it_;) "only the lord to whom this franchise was granted, or _his steward_, _presided instead of the sheriff_."--_1 Reeve's History of the English Law_, p. 7. Chief Baron Gilbert says: "Besides the tenants of the king, which held _per baroniam_, (by the right of a baron,) and did suit and service (served as judges) at his own court; and the burghers and tenants in ancient demesne, that did suit and service (served as jurors or judges) in their own court in person, and in the king's by proxy, there was also a set of freeholders, that did suit and service (served as jurors) at the county court. These were such as anciently held of the lord of the county, and by the escheats of earldoms had fallen to the king; or such as were granted out by service to hold of the king, but with particular reservation to do suit and service (serve as jurors) before the king's bailiff; _because it was necessary the sheriff, or bailiff of the king, should have suitors_ (_jurors_) _at the county court, that the business might be despatched. These suitors are the pares_ (_peers_) _of the county court, and indeed the judges of it; as the pares_ (_peers_) _were the judges in every court-baron_; and therefore the king's bailiff having a court before him, there must be _pares or judges, for the sheriff himself is not a judge_; and though the style of the court is _Curia prima Comitatus E.C. Milit.' vicecom' Comitat' præd' Tent' apud B._, &c. (First Court of the county, E.C. knight, sheriff of the aforesaid county, held at B., &c.); by which it appears that the court was the sheriff's; _yet, by the old feudal constitutions, the lord was not judge, but the pares_ (_peers_) _only_; so that, even in a _justicies_, which was a commission to the sheriff to hold plea of more than was allowed by the natural jurisdiction of a county court, _the pares_ (_peers, jurors_) _only were judges, and not the sheriff_; because it was to hold plea in the same manner as they used to do in that (the lord's) court."--_Gilbert on the Court of Exchequer_, ch. 5, p. 61-2. "It is a distinguishing feature of the feudal system, to make civil jurisdiction necessarily, and criminal jurisdiction ordinarily, coëxtensive with tenure; and accordingly there is inseparably incident to every manor a court-baron (curia baronum), _being a court in which the freeholders of the manor are the sole judges_, but in which the lord, by himself, or more commonly by his steward, presides."--_Political Dictionary_, word _Manor_. The same work, speaking of the county court, says: "_The judges were the freeholders who did suit to the court._" See word _Courts_. "In the case of freeholders attending as suitors, the county court or court-baron, (as in the case of the ancient tenants _per baroniam_ attending Parliament,) _the suitors are the judges of the court, both for law and for fact_, and the sheriff or the under sheriff in the county court, and the lord or his steward in the court-baron, are only presiding officers, _with no judicial authority_."--_Political Dictionary_, word _Suit_. "COURT, (curtis, curia aula); the space enclosed by the walls of a feudal residence, in which the followers of a lord used to assemble in the middle ages, to administer justice, and decide respecting affairs of common interest, &c. It was next used for those who stood in immediate connexion with the lord and master, the _pares curiæ_, (peers of the court,) the limited portion of the general assembly, to which was entrusted the pronouncing of judgment," &c.--_Encyclopedia Americana_, word _Court_. "In court-barons or county courts _the steward was not judge, but the pares_ (_peers_, _jurors_); nor was the speaker in the House of Lords judge, but the barons only."--_Gilbert on the Court of Exchequer_, ch. 3, p. 42. Crabbe, speaking of the Saxon times, says: "The sheriff presided at the _hundred court_, * * and sometimes sat in the place of the alderman (earl) in the _county court_."--_Crabbe_, 23. The sheriff afterwards became the sole presiding officer of the county court. Sir Thomas Smith, Secretary of State to Queen Elizabeth, writing more than three hundred years after Magna Carta, in describing the difference between the Civil Law and the English Law, says: "_Judex_ is of us called Judge, but our fashion is so divers, that they which give the deadly stroke, and either condemn or acquit the man for guilty or not guilty, _are not called judges, but the twelve men. And the same order as well in civil matters and pecuniary, as in matters criminal_."--_Smith's Commonwealth of England_, ch. 9, p. 53, Edition of 1621. _Court-Leet._ "That the _leet_ is the most ancient court in the land for _criminal_ matters, (the court-baron being of no less antiquity in _civil_,) has been pronounced by the highest legal authority. * * Lord Mansfield states that this court was coeval with the establishment of the Saxons here, and its activity marked very visibly both among the Saxons and Danes. * * The leet is a court of record for the cognizance of criminal matters, or pleas of the crown; and necessarily belongs to the king; though a subject, usually the lord of the manor, may be, and is, entitled to the profits, consisting of the essoign pence, fines, and amerciaments. "_It is held before the steward, or was, in ancient times, before the bailiff, of the lord._"--_Tomlin's Law Dict._, word _Court-Leet_. Of course the jury were the judges in this court, where only a "steward" or "bailiff" of a manor presided. "No cause of consequence was determined without the king's writ; for even in the county courts, of the debts, which were above forty shillings, there issued a _Justicies_ (commission) to the sheriff, to enable him to hold such plea, _where the suitors are judges of the law and fact_."--_Gilbert's History of the Common Pleas, Introduction_, p. 19. "This position" (that "the matter of law was decided by the King's Justices, but the matter of fact by the pares") "_is wholly incompatible with the common law, for the Jurata (jury) were the sole judges both of the law and the fact_."--_Gilbert's History of the Common Pleas_, p. 70, _note_. We come now to the challenge; and of old _the suitors in court, who were judges_, could not be challenged; nor by the feudal law could the _pares_ be even challenged, _Pares qui ordinariam jurisdictionem habent recusari non possunt_; (the peers who have ordinary jurisdiction cannot be rejected;) "_but those suitors who are judges of the court_, could not be challenged; and the reason is, that there are several qualifications required by the writ, viz., that they be _liberos et legales homines de vincineto_ (free and legal men of the neighborhood) of the place laid in the declaration," &c., &c.--_Ditto_, p. 93. "_Ad questionem juris non respondent Juratores._" (To the question of law the jurors do not answer.) "The Annotist says, that this is indeed a maxim in the Civil-Law Jurisprudence, _but it does not bind an English jury, for by the common law of the land the jury are judges as well of the matter of law, as of the fact_, with this difference only, that the (a Saxon word) or judge on the bench is to give them no assistance in determining the matter of _fact_, but if they have any doubt among themselves relating to matter of _law_, they may then request him to explain it to them, which when he hath done, and they are thus become well informed, they, and they only, become competent judges of the matter of _law_. And this is the province of the judge on the bench, namely, to show, or _teach_ the law, but not to take upon him the trial of the delinquent, either in matter of fact or in matter of law." (Here various Saxon laws are quoted.) "In neither of these fundamental laws is there the least word, hint, or idea, that the earl or alderman (that is to say, the _Prepositus_ (presiding officer) of the court, which is tantamount to _the judge on the bench_) is to take upon him to judge the delinquent in any sense whatever, the sole purport of his office is to _teach_ the secular or worldly law."--_Ditto_, p. 57, _note_. "The administration of justice was carefully provided for; it was not the caprice of their lord, _but the sentence of their peers, that they obeyed. Each was the judge of his equals, and each by his equals was judged._"--_Introd. to Gilbert on Tenures_, p. 12. Hallam says: "A respectable class of free socagers, having, in general, full rights of alienating their lands, and holding them probably at a small certain rent from the lord of the manor, frequently occur in Domes-day Book. * * They undoubtedly were suitors to the court-baron of the lord, to whose soc, or right of justice, they belonged. _They were consequently judges in civil causes, determined before the manorial tribunal._"--_2 Middle Ages_, 481. Stephens adopts as correct the following quotations from Blackstone: "The _Court-Baron_ is a court incident to every manor in the kingdom, to be holden by the steward within the said manor." * * _It "is a court of common law, and it is the court before the freeholders who owe suit and service to the manor_," (are bound to serve as jurors in the courts of the manor,) "_the steward being rather the registrar than the judge_. * * The freeholders' court was composed of the lord's tenants, who were the _pares_ (equals) of each other, and were bound by their feudal tenure to assist their lord in the dispensation of domestic justice. This was formerly held every three weeks; _and its most important business was to determine, by writ of right, all controversies relating to the right of lands within the manor_."--_3 Stephens' Commentaries_, 392-3. _3 Blackstone_, 32-3. "A _Hundred Court_ is only a larger court-baron, being held for all the inhabitants of a particular hundred, instead of a manor. _The free suitors (jurors) are here also the judges, and the steward the register._"--_3 Stephens_, 394. _3 Blackstone_, 33. "The _County Court_ is a court incident to the jurisdiction of the sheriff. * * _The freeholders of the county are the real judges in this court, and the sheriff is the ministerial officer._"--_3 Stephens_, 395-6. _3 Blackstone_, 35-6. Blackstone describes these courts, as courts "_wherein injuries were redressed in an easy and expeditious manner, by the suffrage of neighbors and friends_."--_3 Blackstone_, 30. "When we read of a certain number of _freemen_ chosen by the parties to decide in a dispute--all bound by oath to vote _in foro conscientia_--and that _their_ decision, _not the will of the judge presiding, ended the suit_, we at once perceive that a great improvement has been made in the old form of compurgation--an improvement which impartial observation can have no hesitation to pronounce as identical in its main features with the trial by jury."--_Dunham's Middle Ages_, Sec. 2, B. 2, Ch. 1. _57 Lardner's Cab. Cyc._, 60. "The bishop and the earl, or, in his absence, the gerefa, (sheriff,) and sometimes both the earl and the gerefa, presided at the _schyre-mote_ (county court); the gerefa (sheriff) usually alone presided at the _mote_ (meeting or court) of the hundred. In the cities and towns which were not within any peculiar jurisdiction, there was held, at regular stated intervals, a _burgh mote_, (borough court,) for the administration of justice, at which a gerefa, or a magistrate appointed by the king, presided."--_Spence's Origin of the Laws and Political Institutions of Modern Europe_, p. 444. "The right of the plaintiff and defendant, and of the prosecutor and criminal, _to challenge the judices_, (judges,) _or assessors,[50] appointed to try the cause in civil matters, and to decide upon the guilt or innocence of the accused in criminal matters_, is recognized in the treatise called the Laws of Henry the First; but I cannot discover, from the Anglo-Saxon laws or histories, that before the Conquest the parties had any general right of challenge; _indeed, had such right existed, the injunctions to all persons standing in the situation of judges (jurors) to do right according to their conscience_, would scarcely have been so frequently and anxiously repeated."--_Spence_, 456. Hale says: "The administration of the common justice of the kingdom seems to be wholly dispensed in the county courts, hundred courts, and courts-baron; except some of the greater crimes reformed by the laws of King Henry I., and that part thereof which was sometimes taken up by the _Justitiarius Angliæ_." This doubtless bred great inconvenience, uncertainty, and variety in the laws, viz.: "_First, by the ignorance of the judges, which were the freeholders of the county._ * * "Thirdly, a third inconvenience was, that all the business of any moment was carried by parties and factions. _For the freeholders being generally the judges_, and conversing one among another, _and being as it were the chief judges, not only of the fact, but of the law_; every man that had a suit there, sped according as he could make parties."--_1 Hale's History of the Common Law_, p. 246. "In all these tribunals," (county court, hundred court, &c.,) "_the judges were the free tenants_, owing suit to the court, and afterwards called its peers."--_1 Lingard's History of England_, 488. Henry calls the twelve jurors "assessors," and says: "These assessors, _who were in reality judges_, took a solemn oath, that they would faithfully discharge the duties of their office, and not suffer an innocent man to be condemned, nor any guilty person to be acquitted."--_3 Henry's History of Great Britain_, 346. Tyrrell says: "Alfred cantoned his kingdom, first into _Trihings_ and _Lathes_, as they are still called in Kent and other places, consisting of three or four Hundreds; _in which, the freeholders being judges_, such causes were brought as could not be determined in the Hundred court."--_Tyrrell's Introduction to the History of England_, p. 80. Of the _Hundred Court_ he says: "In this court anciently, _one of the principal inhabitants, called the alderman, together with the barons of the Hundred[51]--id est the freeholders--was judge_."--_Ditto_, p. 80. Also he says: "By a law of Edward the Elder, 'Every sheriff shall convene the people once a month, and do equal right to all, putting an end to controversies at times appointed.'"--_Ditto_, p. 86. "A statute, emphatically termed the 'Grand Assize,' enabled the defendant, if he thought proper, to abide by the testimony of the twelve good and lawful knights, chosen by four others of the vicinage, _and whose oaths gave a final decision to the contested claim_."--_1 Palgrave's Rise and Progress of the English Commonwealth_, 261. "From the moment when the crown became accustomed to the 'Inquest,' a restraint was imposed upon every branch of the prerogative. _The king could never be informed of his rights, but through the medium of the people._ Every 'extent' by which he claimed the profits and advantages resulting from the casualties of tenure, every process by which he repressed the usurpations of the baronage, depended upon the 'good men and true' who were impanelled to 'pass' between the subject and the sovereign; and the thunder of the Exchequer at Westminster might be silenced by the honesty, the firmness, or the obstinacy, of one sturdy knight or yeoman in the distant shire. Taxation was controlled in the same manner by the voice of those who were most liable to oppression. * * A jury was impanelled to adjudge the proportion due to the sovereign; and this course was not essentially varied, even after the right of granting aids to the crown was fully acknowledged to be vested in the parliament of the realm. The people taxed themselves; and the collection of the grants was checked and controlled, and, perhaps, in many instances evaded, by these virtual representatives of the community. The principle of the jury was, therefore, not confined to its mere application as a mode of trying contested facts, whether in civil or criminal cases; and, both in its form and in its consequences, it had a very material influence upon the general constitution of the realm. * * The main-spring of the machinery of remedial justice existed in the franchise of the lower and lowest orders of the political hierarchy. Without the suffrage of the yeoman, the burgess, and the churl, the sovereign could not exercise the most important and most essential function of royalty; from them he received the power of life and death; he could not wield the sword of justice until the humblest of his subjects placed the weapon in his hand."--_1 Palgrave's Rise and Progress of the English Constitution_, 274-7. Coke says, "The court of the county is no court of record,[52] _and the suitors are the judges thereof_."--_4 Inst._, 266. Also, "The court of the Hundred is no court of record, _and the suitors be thereof judges_."--_4 Inst._, 267. Also, "The court-baron is a court incident to every manor, and is not of record, _and the suitors be thereof judges_."--_4 Inst._, 268. Also, "The court of ancient demesne is in the nature of a court-baron, _wherein the suitors are judges_, and is no court of record."--_4 Inst._, 269. Millar says, "Some authors have thought that jurymen were originally _compurgators_, called by a defendant to swear that they believed him innocent of the facts with which he was charged.... But ... compurgators were merely witnesses; _jurymen were, in reality, judges_. The former were called to confirm the oath of the party by swearing, according to their belief, that he had told the truth, (in his oath of purgation;) _the latter were appointed to try, by witnesses, and by all other means of proof, whether he was innocent or guilty_.... Juries were accustomed to ascertain the truth of facts, by the defendant's oath of purgation, together with that of his compurgators.... Both of them (jurymen and compurgators) were obliged to swear that they would _tell the truth_.... According to the simple idea of our forefathers, guilt or innocence was regarded as a mere matter of fact; and it was thought that no man, who knew the real circumstances of a case, could be at a loss to determine whether the culprit ought to be condemned or acquitted."--_1 Millar's Hist. View of Eng. Gov._, ch. 12, p. 332-4. Also, "The same form of procedure, which took place in the administration of justice among the vassals of a barony, was gradually extended to the courts held in the _trading towns_."--_Same_, p. 335. Also, "The same regulations, concerning the distribution of justice by the intervention of juries, ... _were introduced into the baron courts of the king_, as into those of the nobility, or such of his subjects as retained their allodial property."--_Same_, p. 337. Also. "This tribunal" (the _aula regis_, or king's court, afterwards divided into the courts of King's Bench, Common Pleas, and Exchequer) "was properly the ordinary baron-court of the king; and, being in the same circumstances with the baron-courts of the nobility, it was under the same necessity of trying causes by the intervention of a jury."--_Same_, vol. 2, p. 292. Speaking of the times of Edward the First, (1272 to 1307,) Millar says: "What is called the petty jury was therefore introduced into these tribunals, (the King's Bench, the Common Pleas, and the _Exchequer_,) as well as into their auxiliary courts employed to distribute justice in the circuits; and was thus rendered essentially necessary in determining causes of every sort, whether civil, criminal, or _fiscal_."--_Same_, vol. 2, p. 293-4. Also, "That this form of trial (by jury) obtained universally in all the feudal governments, as well as in that of England, there can be no reason to doubt. In France, in Germany, and in other European countries, where we have any accounts of the constitution and procedure of the feudal courts, it appears that lawsuits of every sort concerning the freemen or vassals of a barony, were determined by the _pares curiæ_ (peers of the court;) _and that the judge took little more upon him than to regulate the method of proceeding, or to declare the verdict of the jury_."--_Same_, vol. 1, ch. 12, p. 329. Also, "Among the Gothic nations of modern Europe, the custom of deciding lawsuits by a jury seems to have prevailed universally; first in the allodial courts of the county, or of the hundred, and afterwards in the baron-courts of every feudal superior."--_Same_, vol. 2, p. 296. Palgrave says that in Germany "The Graff (gerefa, sheriff) placed himself in the seat of judgment, and gave the charge to the assembled free Echevins, warning them to pronounce judgment according to right and justice."--2 _Palgrave_, 147. Also, that, in Germany, "The Echevins were composed of the villanage, somewhat obscured in their functions by the learning of the grave civilian who was associated to them, and somewhat limited by the encroachments of modern feudality; _but they were still substantially the judges of the court_."--_Same_, 148. Palgrave also says, "Scotland, in like manner, had the laws of Burlaw, or Birlaw, which were made and determined by the neighbors, elected by common consent, in the Burlaw or Birlaw courts, wherein knowledge was taken of complaints between neighbor and neighbor, _which men, so chosen, were judges and arbitrators_, and called Birlaw men."--1 _Palgrave's Rise_, &c., p. 80. But, in order to understand the common law trial by jury, as it existed prior to Magna Carta, and as it was guaranteed by that instrument, it is perhaps indispensable to understand more fully the nature of the courts in which juries sat, and the extent of the powers exercised by juries in those courts. I therefore give in a note extended extracts, on these points, from Stuart on the Constitution of England, and from Blackstone's Commentaries.[53] That all these courts were mere _courts of conscience, in which the juries were sole judges, administering justice according to their own ideas of it_, is not only shown by the extracts already given, but is explicitly acknowledged in the following one, in which the _modern "courts of conscience"_ are compared with the _ancient hundred and county courts_, and the preference given to the latter, on the ground that the duties of the jurors in the one case, and of the commissioners in the other, are the same, and that the consciences of a jury are a safer and purer tribunal than the consciences of individuals specially appointed, and holding permanent offices. "But there is one species of courts constituted by act of Parliament, in the city of London, and other trading and populous districts, which, in their proceedings, so vary from the course of the common law, that they deserve a more particular consideration. I mean the court of requests, _or courts of conscience_, for the recovery of small debts. The first of these was established in London so early as the reign of Henry VIII., by an act of their common council; which, however, was certainly insufficient for that purpose, and illegal, till confirmed by statute 3 Jac. I., ch. 15, which has since been explained and amended by statute 14 Geo. II., ch. 10. The constitution is this: two aldermen and four commoners sit twice a week to hear all causes of debt not exceeding the value of forty shillings; which they examine in a summary way, by the oath of the parties or other witnesses, _and make such order therein as is consonant to equity and good conscience_.* * Divers trading towns and other districts have obtained acts of Parliament, for establishing in them _courts of conscience_ upon nearly the same plan as that in the city of London. "The anxious desire that has been shown to obtain these several acts, proves clearly that the nation, in general, is truly sensible of the great inconvenience arising from the disuse of the ancient county and hundred courts, wherein causes of this small value were always formerly decided with very little trouble and expense to the parties. But it is to be feared that the general remedy, which of late hath been principally applied to this inconvenience, (the erecting these new jurisdictions,) may itself be attended in time with very ill consequences; as the method of proceeding therein is entirely in derogation of the common law; and their large discretionary powers create a petty tyranny in a set of standing commissioners; and as the disuse of the trial by jury may tend to estrange the minds of the people from that valuable prerogative of Englishmen, which has already been more than sufficiently excluded in many instances. _How much rather is it to be wished that the proceedings in the county and hundred courts could be again revived_, without burdening the freeholders with too frequent and tedious attendances; and at the same time removing the delays that have insensibly crept into their proceedings, and the power that either party has of transferring at pleasure their suits to the courts at Westminster! _And we may, with satisfaction, observe, that this experiment has been actually tried, and has succeeded in the populous county of Middlesex_, which might serve as an example for others. For by statute 23 Geo. II., ch. 33, it is enacted: 1. That a special county court shall be held at least once in a month, in every hundred of the county of Middlesex, _by the county clerk_. 2. _That twelve freeholders of that hundred, qualified to serve on juries, and struck by the sheriff, shall be summoned to appear at such court by rotation_; so as none shall be summoned oftener than once a year. 3. That in all causes not exceeding the value of forty shillings, _the county clerk and twelve suitors (jurors) shall proceed in a summary way_, examining the parties and witnesses on oath, without the formal process anciently used; _and shall make such order therein as they shall judge agreeable to conscience_."--_3 Blackstone_, 81-83. What are these but courts of conscience? And yet Blackstone tells us they are a _revival of the ancient hundred and county courts_. And what does this fact prove, but that the ancient common law courts, in which juries sat, were mere courts of conscience? It is perfectly evident that in all these courts the jurors were the judges, and determined all questions of law for themselves; because the only alternative to that supposition is, _that the jurors took their law from sheriffs, bailiffs, and stewards_, of which there is not the least evidence in history, nor the least probability in reason. It is evident, also, that they judged independently of the laws of the king, for the reasons before given, viz., that the authority of the king was held in very little esteem; and, secondly, that the laws of the king (not being printed, and the people being unable to read them if they had been printed) must have been in a great measure unknown to them, and could have been received by them only on the authority of the sheriff, bailiff, or steward. If laws were to be received by them on the authority of these officers, the latter would have imposed such laws upon the people as they pleased. These courts, that have now been described, were continued in full power long after Magna Carta, no alteration being made in them by that instrument, _nor in the mode of administering justice in them_. There is no evidence whatever, so far as I am aware, that the juries had any _less_ power in the courts held by the king's justices, than in those held by sheriffs, bailiffs, and stewards; and there is no probability whatever that they had. All the difference between the former courts and the latter undoubtedly was, that, in the former, the juries had the benefit of the advice and assistance of the justices, which would, of course, be considered valuable in difficult cases, on account of the justices being regarded as more learned, not only in the laws of the king, but also in the common law, or "law of the land." The conclusion, therefore, I think, inevitably must be, that neither the laws of the king, nor the instructions of his justices, had any authority over jurors beyond what the latter saw fit to accord to them. And this view is confirmed by this remark of Hallam, the truth of which all will acknowledge: "The rules of legal decision, among a rude people, are always very simple; not serving much to guide, far less to control the feelings of natural equity."--_2 Middle Ages_, ch. 8, part 2, p. 465. It is evident that it was in this way, _by the free and concurrent judgments of juries, approving and enforcing certain laws and rules of conduct, corresponding to their notions of right and justice_, that the laws and customs, which, for the most part, made up the _common law_, and were called, at that day, "_the good laws, and good customs_," and "_the law of the land_," were established. How otherwise could they ever have become established, as Blackstone says they were, "_by long and immemorial usage, and by their universal reception throughout the kingdom_,"[54] when, as the Mirror says, "_justice was so done, that every one so judged his neighbor, by such judgment as a man could not elsewhere receive in the like cases, until such times as the customs of the realm were put in writing and certainly published_?" The fact that, in that dark age, so many of the principles of natural equity, as those then embraced in the _Common Law_, should have been so uniformly recognized and enforced by juries, as to have become established by general consent as "_the law of the land_;" and the further fact that this "law of the land" was held so sacred that even the king could not lawfully infringe or alter it, but was required to swear to maintain it, are beautiful and impressive illustrations of the truth that men's minds, even in the comparative infancy of other knowledge, have clear and coincident ideas of the elementary principles, and the paramount obligation, of justice. The same facts also prove that the common mind, and the general, or, perhaps, rather, the universal conscience, as developed in the untrammelled judgments of juries, may be safely relied upon for the preservation of individual rights in civil society; and that there is no necessity or excuse for that deluge of arbitrary legislation, with which the present age is overwhelmed, under the pretext that unless laws be _made_, the law will not be known; a pretext, by the way, almost universally used for overturning, instead of establishing, the principles of justice. SECTION III. _The Oaths of Jurors._ The oaths that have been administered to jurors, in England, and which are their _legal_ guide to their duty, _all_ (so far as I have ascertained them) corroborate the idea that the jurors are to try all cases on their intrinsic merits, independently of any laws that they deem unjust or oppressive. It is probable that an oath was never administered to a jury in England, either in a civil or criminal case, to try it _according to law_. The earliest oath that I have found prescribed by law to be administered to jurors is in the laws of Ethelred, (about the year 1015,) which require that the jurors "_shall swear, with their hands upon a holy thing, that they will condemn no man that is innocent, nor acquit any that is guilty_."--_4 Blackstone_, 302. _2 Turner's History of the Anglo-Saxons, 155. Wilkins' Laws of the Anglo-Saxons_, 117. _Spelman's Glossary_, word _Jurata_. Blackstone assumes that this was the oath of the _grand_ jury (_4 Blackstone_, 302); but there was but one jury at the time this oath was ordained. The institution of two juries, grand and petit, took place after the Norman Conquest. Hume, speaking of the administration of justice in the time of Alfred, says that, in every hundred, "Twelve freeholders were chosen, who, having sworn, together with the hundreder, or presiding magistrate of that division, _to administer impartial justice_, proceeded to the examination of that cause which was submitted to their jurisdiction."--_Hume_, ch. 2. By a law of Henry II., in 1164, it was directed that the sheriff "_faciet jurare duodecim legales homines de vicineto seu de villa, quod inde veritatem secundum conscientiam suam manifestabunt_," (shall make twelve legal men from the neighborhood _to swear that they will make known the truth according to their conscience_.)--_Crabbe's History of the English Law_, 119. _1 Reeves_, 87. _Wilkins_, 321-323. Glanville, who wrote within the half century previous to Magna Carta, says: "Each of the knights summoned for this purpose (as jurors) ought to swear that he will neither utter that which is false, nor knowingly conceal the truth."--_Beames' Glanville_, 65. Reeve calls the trial by jury "_the trial by twelve men sworn to speak the truth_."--_1 Reeve's History of the English Law_, 87. Henry says that the jurors "took a solemn oath, that they would faithfully discharge the duties of their office, and not suffer an innocent man to be condemned, nor any guilty person to be acquitted."--_3 Henry's Hist. of Great Britain_, 346. The _Mirror of Justices_, (written within a century after Magna Carta,) in the chapter on the abuses of the Common Law, says: "It is abuse to use the words, _to their knowledge_, in their oaths, to make the jurors speak upon thoughts, _since the chief words of their oaths be that they speak the truth_."--p. 249. Smith, writing in the time of Elizabeth, says that, in _civil_ suits, the jury "be sworn to declare the truth of that issue according to the evidence, and their conscience."--_Smith's Commonwealth of England_, edition of 1621, p. 73. In _criminal_ trials, he says: "The clerk giveth the juror an oath to go uprightly betwixt the prince and the prisoner."--_Ditto_, p. 90.[55] Hale says: "Then twelve, and no less, of such as are indifferent and are returned upon the principal panel, or the _tales_, are sworn to try the same according to the evidence."--_2 Hale's History of the Common Law_, 141. It appears from Blackstone that, even _at this day, neither in civil nor criminal cases_, are jurors in England sworn to try causes _according to law_. He says that in civil suits the jury are "Sworn well and truly to _try the issue_ between the parties, and a true verdict to give according to the evidence."--_3 Blackstone_, 365. "_The issue_" to be tried is whether A owes B anything; and if so, how much? or whether A has in his possession anything that belongs to B; or whether A has wronged B, and ought to make compensation; and if so, how much? No statute passed by a legislature, simply as a legislature, can alter either of these "issues" in hardly any conceivable case, perhaps in none. No _unjust_ law could ever alter them in any. They are all mere questions of natural justice, which legislatures have no power to alter, and with which they have no right to interfere, further than to provide for having them settled by the most competent and impartial tribunal that it is practicable to have, and then for having all just decisions enforced. And any tribunal, whether judge or jury, that attempts to try these issues, has no more moral right to be swerved from the line of justice, by the will of a legislature, than by the will of any other body of men whatever. And this oath does not require or permit a jury to be so swerved. In criminal cases, Blackstone says the oath of the jury in England is: "Well and truly to try, and true deliverance make, between our sovereign lord, the king, and the prisoner whom they have in charge, and a true verdict to give according to the evidence."--_4 Blackstone_, 355. "The issue" to be tried, in a criminal case, is "_guilty_," or "_not guilty_." The laws passed by a legislature can rarely, if ever, have anything to do with this issue. "_Guilt_" is an _intrinsic_ quality of actions, and can neither be created, destroyed, nor changed by legislation. And no tribunal that attempts to try this issue can have any moral right to declare a man _guilty_, for an act that is intrinsically innocent, at the bidding of a legislature, any more than at the bidding of anybody else. And this oath does not require or permit a jury to do so. The words, "_according to the evidence_," have doubtless been introduced into the above oaths in modern times. They are unquestionably in violation of the Common Law, and of Magna Carta, if by them be meant such evidence only as the government sees fit to allow to go to the jury. If the government can dictate the evidence, and require the jury to decide according to that evidence, it necessarily dictates the conclusion to which they must arrive. In that case the trial is really a trial by the government, and not by the jury. _The jury_ cannot _try an issue_, unless _they_ determine what evidence shall be admitted. The ancient oaths, it will be observed, say nothing about "_according to the evidence_." They obviously take it for granted that the jury try the whole case; and of course that _they_ decide what evidence shall be admitted. It would be intrinsically an immoral and criminal act for a jury to declare a man guilty, or to declare that one man owed money to another, unless all the evidence were admitted, which _they_ thought ought to be admitted, for ascertaining the truth.[56] _Grand Jury._--If jurors are bound to enforce all laws passed by the legislature, it is a very remarkable fact that the oath of grand juries does not require them to be governed by the laws in finding indictments. There have been various forms of oath administered to grand jurors; but by none of them that I recollect ever to have seen, except those of the States of Connecticut and Vermont, are they sworn to present men _according to law_. The English form, as given in the essay on Grand Juries, written near two hundred years ago, and supposed to have been written by _Lord Somers_, is as follows: "You shall diligently inquire, and true presentment make, of all such articles, matters, and things, as shall be given you in charge, and of all other matters and things as shall come to your knowledge touching this present service. The king's council, your fellows, and your own, you shall keep secret. You shall present no person for hatred or malice; neither shall you leave any one unpresented for favor, or affection, for love or gain, or any hopes thereof; but in all things you shall present the truth, the whole truth, and nothing but the truth, to the best of your knowledge. So help you God." This form of oath is doubtless quite ancient, for the essay says "our ancestors appointed" it.--_See Essay_, p. 33-34. On the obligations of this oath, the essay says: "If it be asked how, or in what manner, the (grand) juries shall inquire, the answer is ready, _according to the best of their understandings_. They only, not the judges, are sworn to search diligently to find out all treasons, &c., within their charge, and they must and ought to use their own discretion in the way and manner of their inquiry. _No directions can legally be imposed upon them by any court or judges_; an honest jury will thankfully accept good advice from judges, as their assistants; but they are bound by their oaths to present the truth, the whole truth, and nothing but the truth, to the best of their own, not the judge's, knowledge. Neither can they, without breach of that oath, resign their consciences, or blindly submit to the dictates of others; and therefore ought to receive or reject such advices, as they judge them good or bad. * * Nothing can be more plain and express than the words of the oath are to this purpose. The jurors need not search the law books, nor tumble over heaps of old records, for the explanation of them. Our greatest lawyers may from hence learn more certainly our ancient law in this case, than from all the books in their studies. The language wherein the oath is penned is known and understood by every man, and the words in it have the same signification as they have wheresoever else they are used. The judges, without assuming to themselves a legislative power, cannot put a new sense upon them, other than according to their genuine, common meaning. They cannot magisterially impose their opinions upon the jury, and make them forsake the direct words of their oath, to pursue their glosses. The grand inquest are bound to observe alike strictly every part of their oath, and to use all just and proper ways which may enable them to perform it; otherwise it were to say, that after men had sworn to inquire diligently after the truth, according to the best of their knowledge, they were bound to forsake all the natural and proper means which their understandings suggest for the discovery of it, if it be commanded by the judges."--_Lord Somers' Essay on Grand Juries_, p. 38. What is here said so plainly and forcibly of the oath and obligations of grand juries, is equally applicable to the oath and obligations of petit juries. In both cases the simple oaths of the jurors, and not the instructions of the judges, nor the statutes of kings nor legislatures, are their legal guides to their duties.[57] SECTION IV. _The Right of Juries to fix the Sentence._ The nature of the common law courts existing prior to Magna Carta, such as the county courts, the hundred courts, the court-leet, and the court-baron, all prove, what has already been proved from Magna Carta, that, in jury trials, the juries fixed the sentence; because, in those courts, there was no one but the jury who could fix it, unless it were the sheriff, bailiff, or steward; and no one will pretend that it was fixed by them. The juries unquestionably gave the "judgment" in both civil and criminal cases. That the juries were to fix the sentence under Magna Carta, is also shown by statutes subsequent to Magna Carta. A statute passed fifty-one years after Magna Carta, says that a baker, for default in the weight of his bread, "_debeat_ amerciari vel subire judicium pilloræ,"--that is, "_ought_ to be amerced, or suffer the sentence of the pillory." And that a brewer, for "selling ale, contrary to the assize," "_debeat_ amerciari, vel pati judicium tumbrelli;" that is, "_ought_ to be amerced, or suffer judgment of the tumbrel."--_51 Henry III._, st. 6. (1266.) If the king (the legislative power) had had authority to fix the punishments of these offences imperatively, he would naturally have said these offenders _shall_ be amerced, and _shall_ suffer judgment of the pillory and tumbrel, instead of thus simply expressing the opinion that they _ought_ to be punished in that manner. The statute of Westminster, passed sixty years after Magna Carta, provides that, "No city, borough, nor town, _nor any man_, be amerced, without reasonable cause, and according to the quantity of the trespass; that is to say, every freeman saving his freehold, a merchant saving his merchandise, a villein his waynage, _and that by his or their peers_."--_3 Edward I._, ch. 6. (1275.) The same statute (ch. 18) provides further, that, "Forasmuch as the _common fine and amercement_ of the whole county in Eyre of the justices for false judgments, or for other trespass, is unjustly assessed by sheriffs and baretors in the shires, so that the sum is many times increased, and the parcels otherwise assessed than they ought to be, to the damage of the people, which be many times paid to the sheriffs and baretors, which do not acquit the payers; it is provided, and the king wills, that from henceforth such sums shall be assessed before the justices in Eyre, afore their departure, _by the oath of knights and other honest men_, upon all such as ought to pay; and the justices shall cause the parcels to be put into their estreats, which shall be delivered up unto the exchequer, and not the whole sum."--_St. 3 Edward I._, ch. 18, (1275.)[58] The following statute, passed in 1341, one hundred and twenty-five years after Magna Carta, providing for the trial of peers of the realm, and the king's ministers, contains a recognition of the principle of Magna Carta, that the jury are to fix the sentence. "Whereas before this time the peers of the land have been arrested and imprisoned, and their temporalities, lands, and tenements, goods and cattels, asseized in the king's hands, and some put to death without judgment of their peers: It is accorded and assented, that no peer of the land, officer, nor other, because of his office, nor of things touching his office, nor by other cause, shall be brought in judgment to lose his temporalities, lands, tenements, goods and cattels, nor to be arrested, nor imprisoned, outlawed, exiled, nor forejudged, nor put to answer, nor be judged, but by _award_ (_sentence_) of the said peers in Parliament."--_15 Edward III._, st. 1, sec. 2. Section 4, of the same statute provides, "That in every Parliament, at the third day of every Parliament, the king shall take in his hands the offices of all the ministers aforesaid," (that is, "the chancellor, treasurer, barons, and chancellor of the exchequer, the justices of the one bench and of the other, justices assigned in the country, steward and chamberlain of the king's house, keeper of the privy seal, treasurer of the wardrobe, controllers, and they that be chief deputed to abide nigh the king's son, Duke of Cornwall,") "and so they shall abide four or five days; except the offices of justices of the one place or the other, justices assigned, barons of exchequer; so always that they and all other ministers be put to answer to every complaint; and if default be found in any of the said ministers, by complaint or other manner, and of that attainted in Parliament, he shall be punished by judgment of the peers, and put out of his office, and another convenient put in his place. And upon the same our said sovereign lord the king shall do (cause) to be pronounced and made execution without delay, _according to the judgment_ (_sentence_) of the said peers in the Parliament." Here is an admission that the peers were to fix the sentence, or judgment, and the king promises to make execution "_according to_" that sentence. And this appears to be the law, under which peers of the realm and the great officers of the crown were tried and sentenced, for four hundred years after its passage, and, for aught I know, until this day. The first case given in Hargrave's collection of English State Trials, is that of _Alexander Nevil_, Archbishop of York, _Robert Vere_, Duke of Ireland, _Michael de la Pole_, Earl of Suffolk, and _Robert Tresilian_, Lord Chief Justice of England, with several others, convicted of treason, before "the Lords of Parliament," in 1388. The sentences in these cases were adjudged by the "Lords of Parliament," in the following terms, as they are reported. "Wherefore the said _Lords of Parliament_, there present, as judges in Parliament, in this case, _by assent of the king, pronounced their sentence_, and did adjudge the said archbishop, duke, and earl, with Robert Tresilian, so appealed, as aforesaid, to be guilty, and convicted of treason, and to be drawn and hanged, as traitors and enemies to the king and kingdom; and that their heirs should be disinherited forever, and their lands and tenements, goods and chattels, forfeited to the king, and that the temporalities of the Archbishop of York should be taken into the king's hands." Also, in the same case, Sir _John Holt_, Sir _William Burgh_, Sir _John Cary_, Sir _Roger Fulthorpe_, and _John Locton_, "_were by the lords temporal, by the assent of the king_, adjudged to be drawn and hanged, as traitors, their heirs disinherited, and their lands and tenements, goods and chattels, to be forfeited to the king." Also, in the same case, _John Blake_, "of council for the king," and _Thomas Uske_, under sheriff of Middlesex, having been convicted of treason, "_The lords awarded, by assent of the king_, that they should both be hanged and drawn as traitors, as open enemies to the king and kingdom, and their heirs disinherited forever, and their lands and tenements, goods and chattels, forfeited to the king." Also, "_Simon Burleigh_, the king's chamberlain," being convicted of treason, "_by joint consent of the king and the lords_, sentence was pronounced against the said Simon Burleigh, that he should be drawn from the town to Tyburn, and there be hanged till he be dead, and then have his head struck from his body." Also, "_John Beauchamp_, steward of the household to the king, _James Beroverse_, and _John Salisbury_, knights, gentlemen of the privy chamber, _were in like manner condemned_."--_1 Hargrave's State Trials_, first case. Here the sentences were all fixed by the peers, _with the assent of the king_. But that the king should be consulted, and his assent obtained to the sentence pronounced by the peers, does not imply any deficiency of power on their part to fix the sentence independently of the king. There are obvious reasons why they might choose to consult the king, and obtain his approbation of the sentence they were about to impose, without supposing any legal necessity for their so doing. So far as we can gather from the reports of state trials, peers of the realm were usually sentenced by those who tried them, _with the assent of the king_. But in some instances no mention is made of the assent of the king, as in the case of "Lionel, Earl of Middlesex, Lord High Treasurer of England," in 1624, (four hundred years after Magna Carta,) where the sentence was as follows: "This High Court of Parliament doth adjudge, that Lionel, Earl of Middlesex, now Lord Treasurer of England, shall lose all his offices which he holds in this kingdom, and shall, hereafter, be made incapable of any office, place, or employment in the state and commonwealth. That he shall be imprisoned in the tower of London, during the king's pleasure. That he shall pay unto our sovereign lord the king a fine of 50,000 pounds. That he shall never sit in Parliament any more, and that he shall never come within the verge of the court."--_2 Howell's State Trials_, 1250. Here was a peer of the realm, and a minister of the king, of the highest grade; and if it were ever _necessary_ to obtain the assent of the king to sentences pronounced by the peers, it would unquestionably have been obtained in this instance, and his assent would have appeared in the sentence. _Lord Bacon_ was sentenced by the House of Lords, (1620,) _no mention being made of the assent of the king_. The sentence is in these words: "And, therefore, this High Court doth adjudge, That the Lord Viscount St. Albans, Lord Chancellor of England, shall undergo fine and ransom of 40,000 pounds. That he shall be imprisoned in the tower during the king's pleasure. That he shall forever be incapable of any office, place, or employment in the state or commonwealth. That he shall never sit in Parliament, nor come within the verge of the court." And when it was demanded of him, before sentence, whether it were his hand that was subscribed to his confession, and whether he would stand to it; he made the following answer, which implies that the lords were the ones to determine his sentence. "My lords, it is my act, my hand, my heart. _I beseech your lordships to be merciful to a broken reed._"--_1 Hargrave's State Trials_, 386-7. The sentence against Charles the First, (1648,) after reciting the grounds of his condemnation, concludes in this form: "For all which treasons and crimes, _this court doth adjudge_, that he, the said Charles Stuart, as a tyrant, traitor, murderer, and public enemy to the good people of this nation, shall be put to death by the severing his head from his body." The report then adds: "This sentence being read, the president (of the court) spake as followeth: 'This sentence now read and published, is the act, sentence, judgment and resolution of the whole court.'"--_1 Hargrave's State Trials_, 1037. Unless it had been the received "_law of the land_" that those who tried a man should fix his sentence, it would have required an act of Parliament to fix the sentence of Charles, and his sentence would have been declared to be "_the sentence of the law_," instead of "_the act, sentence, judgment, and resolution of the court_." But the report of the proceedings in "the trial of Thomas, Earl of Macclesfield, Lord High Chancellor of Great Britain, before the House of Lords, for high crimes and misdemeanors in the execution of his office," in 1725, is so full on this point, and shows so clearly that it rested wholly with the lords to fix the sentence, and that the assent of the king was wholly unnecessary, that I give the report somewhat at length. _After being found guilty_, the earl addressed the _lords_, for a _mitigation of sentence_, as follows: "'I am now to expect your lordships' judgment; and I hope that you will be pleased to consider that I have suffered no small matter already in the trial, in the expense I have been at, the fatigue, and what I have suffered otherways. * * I have paid back 10,800 pounds of the money already; I have lost my office; I have undergone the censure of both houses of Parliament, which is in itself a severe punishment,'" &c., &c. On being interrupted, he proceeded: "'My lords, I submit whether this be not proper in _mitigation of your lordships' sentence_; but whether it be or not, I leave myself to your lordships' justice and mercy; I am sure neither of them will be wanting, and I entirely submit.' * * "Then the said earl, as also the managers, were directed to withdraw; and the House (of Lords) ordered Thomas, Earl of Macclesfield, to be committed to the custody of the gentleman usher of the black rod; and then proceeded to the consideration of what _judgment_," (that is, _sentence_, for he had already been found _guilty_,) "to give upon the impeachment against the said earl." * * "The next day, the Commons, with their speaker, being present at the bar of the House (of Lords), * * the speaker of the House of Commons said as follows: "'My Lords, the knights, citizens, and burgesses in Parliament assembled, in the name of themselves, and of all the commons of Great Britain, did at this bar impeach Thomas, Earl of Macclesfield, of high crimes and misdemeanors, and did exhibit articles of impeachment against him, and have made good their charge. I do, therefore, in the name of the knights, citizens, and burgesses, in Parliament assembled, and of all the commons of Great Britain, demand _judgment_ (_sentence_) of your lordships against Thomas, Earl of Macclesfield, for the said high crimes and misdemeanors.' "Then the Lord Chief Justice King, Speaker of the House of Lords, said: 'Mr. Speaker, the Lords are now ready to proceed to judgment in the case by you mentioned. "'Thomas, Earl of Macclesfield, the Lords have unanimously found you guilty of high crimes and misdemeanors, charged on you by the impeachment of the House of Commons, and do now, according to law, proceed to _judgment_ against you, which I am ordered to pronounce. Their lordships' _judgment_ is, and this high court doth adjudge, that you, Thomas, Earl of Macclesfield, be fined in the sum of thirty thousand pounds unto our sovereign lord the king; and that you shall be imprisoned in the tower of London, and there kept in safe custody, until you shall pay the said fine.'"--_6 Hargrave's State Trials_, 762-3-4. This case shows that the principle of Magna Carta, that a man should be _sentenced only_ by his peers, was in force, and acted upon as law, in England, so lately as 1725, (five hundred years after Magna Carta,) so far as it applied to a _peer of the realm_. But the same principle, on this point, that applies to a peer of the realm, applies to every freeman. The only difference between the two is, that the peers of the realm have had influence enough to preserve their constitutional rights; while the constitutional rights of the people have been trampled upon and rendered obsolete by the usurpation and corruption of the government and the courts. SECTION V. _The Oaths of Judges._ As further proof that the legislation of the king, whether enacted with or without the assent and advice of his parliaments, was of no authority unless it were consistent with the _common law_, and unless juries and judges saw fit to enforce it, it may be mentioned that it is probable that no judge in England was ever sworn to observe the laws enacted either by the king alone, or by the king with the advice and assent of parliament. The judges were sworn to "_do equal law, and execution of right, to all the king's subjects, rich and poor, without having regard to any person_;" and that they will "_deny no man common right_;"[59] but they were _not_ sworn to obey or execute any statutes of the king, or of the king and parliament. Indeed, they are virtually sworn _not_ to obey any statutes that are against "_common right_," or contrary to "_the common law_," or "_law of the land_;" but to "certify the king thereof"--that is, notify him that his statutes are against the common law;--and then proceed to execute the _common law_, notwithstanding such legislation to the contrary. The words of the oath on this point are these: "_That ye deny no man common right by (virtue of) the king's letters, nor none other man's, nor for none other cause; and in case any letters come to you contrary to the law_, (that is, the common law, as will be seen on reference to the entire oath given in the note,) _that ye do nothing by such letters, but certify the king thereof and proceed to execute the law_, (that is, the common law,) _notwithstanding the same letters_." When it is considered that the king was the sole legislative power, and that he exercised this power, to a great extent, by orders in council, and by writs and "letters" addressed often-times to some sheriff, or other person, and that his commands, when communicated to his justices, or any other person, "by letters," or writs, _under seal_, had as much legal authority as laws promulgated in any other form whatever, it will be seen that this oath of the justices _absolutely required_ that they disregard any legislation that was contrary to "_common right_," or "_the common law_," and notify the king that it was contrary to common right, or the common law, and then proceed to execute the common law, notwithstanding such legislation.[60] If there could be any doubt that such was the meaning of this oath, that doubt would be removed by a statute passed by the king two years afterwards, which fully explains this oath, as follows: "Edward, by the Grace of God, &c., to the Sheriff of _Stafford_, greeting: Because that by divers complaints made to us, we have perceived that _the Law of the Land, which we by our oath are bound to maintain_, is the less well kept, and the execution of the same disturbed many times by maintenance and procurement, as well in the court as in the country; we greatly moved of conscience in this matter, and for this cause desiring as much for the pleasure of God, and ease and quietness of our subjects, as to save our conscience, and for to save and keep our said oath, by the assent of the great men and other wise men of our council, we have ordained these things following: "First, we have commanded all our justices, that they shall from henceforth _do equal law and execution of right_ to all our subjects, rich and poor, without having regard to any person, _and without omitting to do right for any letters or commandment which may come to them from us, or from any other, or by any other cause. And if that any letters, writs, or commandments come to the justices, or to other deputed to do law and right according to the usage of the realm, in disturbance of the law, or of the execution of the same, or of right to the parties, the justices and other aforesaid shall proceed and hold their courts and processes, where the pleas and matters be depending before them, as if no such letters, writs, or commandments were come to them; and they shall certify us and our council of such commandments which be contrary to the law_, (that is, "the law of the land," or common law,) _as afore is said_.[61] And to the intent that our justices shall do even right to all people in the manner aforesaid, without more favor showing to one than to another, we have ordained and caused our said justices to be sworn, that they shall not from henceforth, as long as they shall be in the office of justice, take fee nor robe of any man, but of ourself, and that they shall take no gift nor reward by themselves, nor by other, privily nor apertly, of any man that hath to do before them by any way, except meat and drink, and that of small value; and that they shall give no counsel to great men or small, in case where we be party, or which do or may touch us in any point, upon pain to be at our will, body, lands, and goods, to do thereof as shall please us, in case they do contrary. And for this cause we have increased the fees of the same, our justices, in such manner as it ought reasonably to suffice them."--_20 Edward III._, ch. 1. (1346.) Other statutes of similar tenor have been enacted, as follows: "It is accorded and established, that it shall not be commanded by the great seal, nor the little seal, to disturb or delay _common right_; and though such commandments do come, the justices shall not therefore leave (omit) to do right in any point."--_St. 2 Edward III._, ch. 8. (1328.) "That by commandment of the great seal, or privy seal, no point of this statute shall be put in delay; nor that the justices of whatsoever place it be shall let (omit) to do the _common law_, by commandment, which shall come to them under the great seal, or the privy seal."--_14 Edward III._, st. 1, ch. 14. (1340.) "It is ordained and established, that neither letters of the signet, nor of the king's privy seal, shall be from henceforth sent in damage or prejudice of the realm, nor in disturbance of the law" (the common law).--_11 Richard II._, ch. 10. (1387.) It is perfectly apparent from these statutes, and from the oath administered to the justices, that it was a matter freely confessed by the king himself, that his statutes were of no validity, if contrary to the common law, or "common right." The oath of the justices, before given, is, I presume, the same that has been administered to judges in England from the day when it was first prescribed to them, (1344,) until now. I do not find from the English statutes that the oath has ever been changed. The Essay on Grand Juries, before referred to, and supposed to have been written by _Lord Somers_, mentions this oath (page 73) as being still administered to judges, that is, in the time of Charles II., more than three hundred years after the oath was first ordained. If the oath has never been changed, it follows that judges have not only never been sworn to support any statutes whatever of the king, or of parliament, but that, for five hundred years past, they actually have been sworn to treat as invalid all statutes that were contrary to the common law. SECTION VI. _The Coronation Oath._ That the legislation of the king was of no authority over a jury, is further proved by the oath taken by the kings at their coronation. This oath seems to have been substantially the same, from the time of the _Saxon_ kings, down to the seventeenth century, as will be seen from the authorities hereafter given. The purport of the oath is, that the king swears _to maintain the law of the land_--that is, _the common law_. In other words, he swears "_to concede and preserve to the English people the laws and customs conceded to them by the ancient, just, and pious English kings, * * and especially the laws, customs, and liberties conceded to the clergy and people by the illustrious king Edward;" * * and "the just laws and customs which the common people have chosen, (quas vulgus elegit)_." These are the same laws and customs which were called by the general name of "_the law of the land_," or "_the common law_," and, with some slight additions, were embodied in _Magna Carta_. This oath not only forbids the king to enact any statutes contrary to the common law, but it proves that his statutes could be of no authority over the consciences of a jury; since, as has already been sufficiently shown, it was one part of this very common law itself,--that is, of the ancient "laws, customs, and liberties," mentioned in the oath,--that juries should judge of all questions that came before them, according to their own consciences, independently of the legislation of the king. It was impossible that this right of the jury could subsist consistently with any right, on the part of the king, to impose any authoritative legislation upon them. His oath, therefore, to maintain the law of the land, or the ancient "laws, customs, and liberties," was equivalent to an oath that he would never _assume_ to impose laws upon juries, as imperative rules of decision, or take from them the right to try all cases according to their own consciences. It is also an admission that he had no constitutional power to do so, if he should ever desire it. This oath, then, is conclusive proof that his legislation was of no authority with a jury, and that they were under no obligation whatever to enforce it, unless it coincided with their own ideas of justice. The ancient coronation oath is printed with the Statutes of the Realm, vol. i., p. 168, and is as follows:[62] TRANSLATION. "_Form of the Oath of the King of England, on his Coronation._ (The Archbishop of Canterbury, to whom, of right and custom of the Church of Canterbury, ancient and approved, it pertains to anoint and crown the kings of England, on the day of the coronation of the king, and before the king is crowned, shall propound the underwritten questions to the king.) The laws and customs, conceded to the English people by the ancient, just, and pious English kings, will you concede and preserve to the same people, with the confirmation of an oath? and especially the laws, customs, and liberties conceded to the clergy and people by the illustrious king Edward? (And the king shall answer,) I do concede, and will preserve them, and confirm them by my oath. Will you preserve to the church of God, the clergy, and the people, entire peace and harmony in God, according to your powers? (And the king shall answer,) I will. In all your judgments, will you cause equal and right justice and discretion to be done, in mercy and truth, according to your powers? (And the king shall answer,) I will. Do you concede that the just laws and customs, _which the common people have chosen_, shall be preserved; and do you promise that they shall be protected by you, and strengthened to the honor of God, according to your powers? (And the king shall answer,) I concede and promise." The language used in the last of these questions, "Do you concede that the just laws and customs, _which the common people have chosen_, (_quas vulgus elegit_,) shall be preserved?" &c., is worthy of especial notice, as showing that the laws, which were to be preserved, were not necessarily _all_ the laws which the kings enacted, _but only such of them as the common people had selected or approved_. And how had the common people made known their approbation or selection of these laws? Plainly, in no other way than this--_that the juries composed of the common people had voluntarily enforced them_. The common people had no other legal form of making known their approbation of particular laws. The word "concede," too, is an important word. In the English statutes it is usually translated _grant_--as if with an intention to indicate that "the laws, customs, and liberties" of the English people were mere _privileges, granted_ to them by the king; whereas it should be translated _concede_, to indicate simply an _acknowledgment_, on the part of the king, that such were the laws, customs, and liberties, which had been chosen and established by the people themselves, and of right belonged to them, and which he was bound to respect. I will now give some authorities to show that the foregoing oath has, _in substance_, been the coronation oath from the times of William the Conqueror, (1066,) down to the time of James the First, and probably until 1688. It will be noticed, in the quotation from Kelham, that he says this oath (or the oath of William the Conqueror) is "in sense and substance the very same with that which the _Saxon_ kings used to take at their coronations." Hale says: "Yet the English were very zealous for them," (that is, for the laws of Edward the Confessor,) "no less or otherwise than they are at this time for the Great Charter; insomuch that they were never satisfied till the said laws were reënforced, and mingled, for the most part, with the coronation oath of king William I., and some of his successors."--_1 Hale's History of Common Law_, 157. Also, "William, on his coronation, had sworn to govern by the laws of Edward the Confessor, some of which had been reduced into writing, but the greater part consisted of the immemorial customs of the realm."--_Ditto_, p. 202, note L. Kelham says: "Thus stood the laws of England at the entry of William I., and it seems plain that the laws, commonly called the laws of Edward the Confessor, were at that time the standing laws of the kingdom, and considered the great rule of their rights and liberties; and that the English were so zealous for them, 'that they were never satisfied till the said laws were reënforced, and mingled, for the most part, with the coronation oath.' Accordingly, we find that this great conqueror, at his coronation on the Christmas day succeeding his victory, took an oath at the altar of St. Peter, Westminster, _in sense and substance the very same with that which the Saxon kings used to take at their coronations_. * * And at Barkhamstead, in the fourth year of his reign, in the presence of Lanfranc, Archbishop of Canterbury, for the quieting of the people, he swore that he would inviolably observe the good and approved ancient laws which had been made by the devout and pious kings of England, his ancestors, and chiefly by King Edward; and we are told that the people then departed in good humor."--_Kelham's Preliminary Discourse to the Laws of William the Conqueror._ See, also, _1 Hale's History of the Common Law_, 186. Crabbe says that William the Conqueror "solemnly swore that he would observe the good and approved laws of Edward the Confessor."--_Crabbe's History of the English Law_, p. 43. The successors of William, up to the time of Magna Carta, probably all took the same oath, according to the custom of the kingdom; although there may be no historical accounts extant of the oath of each separate king. But history tells us specially that Henry I., Stephen, and Henry II., confirmed these ancient laws and customs. It appears, also, that the barons desired of John (what he afterwards granted by Magna Carta) "_that the laws and liberties of King Edward_, with other privileges granted to the kingdom and church of England, might be confirmed, as they were contained in the charters of Henry the First; further alleging, _that at the time of his absolution, he promised by his oath to observe these very laws and liberties_."--_Echard's History of England_, p. 105-6. It would appear, from the following authorities, that since Magna Carta the form of the coronation oath has been "_to maintain the law of the land_,"--meaning that law as embodied in Magna Carta. Or perhaps it is more probable that the ancient form has been still observed, but that, as its substance and purport were "_to maintain the law of the land_," this latter form of expression has been used, in the instances here cited, from motives of brevity and convenience. This supposition is the more probable, from the fact that I find no statute prescribing a change in the form of the oath until 1688. That Magna Carta was considered as embodying "the law of the land," or "common law," is shown by a statute passed by Edward I., wherein he "grants," or concedes, "That the Charter of Liberties and the Charter of the Forest * * shall be kept in every point, without breach, * * and that our justices, sheriffs, mayors, and other ministers, which, under us, have the _laws of our land_[63] to guide, shall allow the said charters pleaded before them in judgment, in all their points, that is, to wit, _the Great Charter as the Common Law_, and the Charter of the Forest for the wealth of the realm. "And we will, that if any judgment be given from henceforth, contrary to the points of the charters aforesaid, by the justices, or by any other our ministers that hold plea before them against the points of the charters, it shall be undone, and holden for naught."--_25 Edward I._, ch. 1 and 2. (1297.) Blackstone also says: "It is agreed by all our historians that the Great Charter of King John was, for the most part, _compiled from the ancient customs of the realm, or the laws of Edward the Confessor; by which they usually mean the old common law which was established under our Saxon princes_."--_Blackstone's Introduction to the Charters._ See _Blackstone's Law Tracts_, 289. Crabbe says: "It is admitted, on all hands, that it (Magna Carta) contains nothing but what was confirmatory of the common law, and the ancient usages of the realm, and is, properly speaking, only an enlargement of the charter of Henry I., and his successors."--_Crabbe's History of the English Law_, p. 127. That the coronation oath of the kings subsequent to Magna Carta was, in substance, if not in form, "_to maintain this law of the land, or common law_," is shown by a statute of Edward Third, commencing as follows: "Edward, by the Grace of God, &c., &c., to the Sheriff of Stafford, Greeting: Because that by divers complaints made to us, we have perceived that _the law of the land, which we by oath are bound to maintain_," &c.--_St. 20 Edward III._ (1346.) The following extract from Lord Somers' tract on Grand Juries shows that the coronation oath continued the same as late as 1616, (four hundred years after Magna Carta.) He says: "King James, in his speech to the judges, in the Star Chamber, Anno 1616, told them, 'That he had, after many years, resolved to renew his oath, made at his coronation, concerning justice, and the promise therein contained for _maintaining the law of the land_.' And, in the next page save one, says, '_I was sworn to maintain the law of the land_, and therefore had been perjured if I had broken it. God is my judge, I never intended it.'"--_Somers on Grand Juries_, p. 82. In 1688, the coronation oath was changed by act of Parliament, and the king was made to swear: "To govern the people of this kingdom of England, and the dominions thereto belonging, _according to the statutes in Parliament agreed on, and the laws and customs of the same_."--_St. 1 William and Mary_, ch. 6. (1688.) The effect and legality of this oath will hereafter be considered. For the present it is sufficient to show, as has been already sufficiently done, that from the Saxon times until at least as lately as 1616, the coronation oath has been, in substance, _to maintain the law of the land, or the common law_, meaning thereby the ancient Saxon customs, as embodied in the laws of Alfred, of Edward the Confessor, and finally in Magna Carta. It may here be repeated that this oath plainly proves that the statutes of the king were of no authority over juries, if inconsistent with their ideas of right; because it was one part of the common law that juries should try all causes according to their own consciences, any legislation of the king to the contrary notwithstanding.[64] [Footnote 34: Hale says: "The trial by jury of twelve men was the usual trial among the Normans, in most suits; especially in assizes, et juris utrum."--_1 Hale's History of the Common Law_, 219. This was in Normandy, before the conquest of England by the Normans. _See Ditto_, p. 218. Crabbe says: "It cannot be denied that the practice of submitting causes to the decision of twelve men was universal among all the northern tribes (of Europe) from the very remotest antiquity."--_Crabbe's History of the English Law_, p. 32.] [Footnote 35: "The people, who in every general council or assembly could oppose and dethrone their sovereigns, were in little dread of their encroachments on their liberties; and kings, who found sufficient employment in keeping possession of their crowns, would not likely attack the more important privileges of their subjects."] [Footnote 36: This office was afterwards committed to sheriffs. But even while the court was held by the lord, "_the Lord was not judge, but the Pares (peers) only_."--_Gilbert on the Court of Exchequer_, 61-2.] [Footnote 37: The opinion expressed in the text, that the Witan had no legislative authority, is corroborated by the following authorities: "From the fact that the new laws passed by the king and the Witan were laid before the shire-mote, (county court,) we should be almost justified in the inference that a second sanction was necessary before they could have the effect of law in that particular county."--_Dunham's Middle Ages, Sec._ 2, _B._ 2, _Ch._ 1. _57 Lardner's Cab. Cyc._, 53. The "_second sanction_" required to give the legislation of the king and Witan the effect of law, was undoubtedly, I think, _as a general thing, the sanction of a jury_. I know of no evidence whatever that laws were ever submitted to popular vote in the county courts, as this author seems to suppose possible. Another mode, sometimes resorted to for obtaining the sanction of the people to the laws of the Witan, was, it seems, to persuade the people themselves to swear to observe them. Mackintosh says: "The preambles of the laws (of the Witan) speak of the infinite number of _liegemen_ who attended, as only applauding the measures of the assembly. But this applause was neither so unimportant to the success of the measures, nor so precisely distinguished from a share in legislation, as those who read history with a modern eye might imagine. It appears that under Athelstan expedients were resorted to, to obtain a consent to the law from great bodies of the people in their districts, which their numbers rendered impossible in a national assembly. That monarch appears to have sent commissioners to hold _shire-gemotes_ or county meetings, where they proclaimed the laws made by the king and his counsellors, which, being acknowledged and sworn to at these _folk-motes_ (meetings of the people) became, by their assent, completely binding on the whole nation."--_Mackintosh's Hist. of England_, _Ch._ 2. _45 Lardner's Cab. Cyc._, 75.] [Footnote 38: Page 31.] [Footnote 39: Hallam says, "It was, however, to the county court that an English freeman chiefly looked for the maintenance of his civil rights."--_2 Middle Ages_, 392. Also, "This (the county court) was the great constitutional judicature in all questions of civil right."--_Ditto_, 395. Also, "The liberties of these Anglo-Saxon thanes were chiefly secured, next to their swords and their free spirits, by the inestimable right of deciding civil and criminal suits in their own county courts."--_Ditto_, 399.] [Footnote 40: "Alfred may, in one sense, be called the founder of these laws, (the Saxon,) for until his time they were an unwritten code, but he expressly says, '_that I, Alfred, collected the good laws of our forefathers into one code, and also I wrote them down_'--which is a decisive fact in the history of our laws well worth noting."--_Introduction to Gilbert's History of the Common Pleas_, p. 2, _note_. Kelham says, "Let us consult our own lawyers and historians, and they will tell us * * that Alfred, Edgar, and Edward the Confessor, were the great _compilers and restorers_ of the English Laws."--_Kelham's Preliminary Discourse to the Laws of William the Conqueror_, p. 12. _Appendix to Kelham's Dictionary of the Norman Language._ "He (Alfred) also, like another Theodosius, _collected the various customs_ that he found dispersed in the kingdom, and reduced and digested them into one uniform system, or code of laws, in his _som-bec_, or _liber judicialis_ (judicial book). This he _compiled_ for the use of the court baron, hundred and county court, the court-leet and sheriff's tourn, tribunals which he established for the trial of all causes, civil and criminal, in the very districts wherein the complaints arose."--_4 Blackstone_, 411. Alfred himself says, "Hence I, King Alfred, gathered these together, and commanded many of those to be written down which our forefathers observed--those which I liked--and those which I did not like, by the advice of my Witan, I threw aside. For I durst not venture to set down in writing over many of my own, since I knew not what among them would please those that should come after us. But those which I met with either of the days of me, my kinsman, or of Offa, King of Mercia, or of Æthelbert, who was the first of the English who received baptism--those which appeared to me the justest--I have here collected, and abandoned the others. Then I, Alfred, King of the West Saxons, showed these to all my Witan, and they then said that they were all willing to observe them."--_Laws of Alfred, translated by R. Price, prefixed to Mackintosh's History of England_, _vol._ 1. _45 Lardner's Cab. Cyc._ "King Edward * * projected and begun what his grandson, King Edward the Confessor, afterwards completed, viz., one uniform digest or body of laws to be observed throughout the whole kingdom, _being probably no more than a revival of King Alfred's code_, with some improvements suggested by necessity and experience, particularly the incorporating some of the British, or, rather, Mercian _customs_, and also _such of the Danish_ (customs) as were reasonable and approved, into the _West Saxon Lage_, which was still the ground-work of the whole. And this appears to be the best supported and most plausible conjecture, (for certainty is not to be expected,) of the rise and original of that admirable system of maxims and unwritten customs which is now known by the name of the _common law_, as extending its authority universally over all the realm, and which is doubtless of Saxon parentage."--_4 Blackstone_, 412. "By the _Lex Terræ_ and _Lex Regni_ is understood the laws of Edward the Confessor, confirmed and enlarged as they were by William the Conqueror; and this Constitution or Code of Laws is what even to this day are called '_The Common Law of the Land_.'"--_Introduction to Gilbert's History of the Common Pleas_, p. 22, _note_.] [Footnote 41: Not the conqueror of the English people, (as the friends of liberty maintain,) but only of Harold the usurper.--See _Hale's History of the Common Law_, ch. 5.] [Footnote 42: For all these codes see Wilkins' Laws of the Anglo-Saxons. "Being regulations adapted to existing institutions, the Anglo-Saxon statutes are concise and technical, alluding to the law which was then living and in vigor, rather than defining it. The same clauses and chapters are often repeated word for word, in the statutes of subsequent kings, showing that enactments which bear the appearance of novelty are merely declaratory. Consequently the appearance of a law, seemingly for the first time, is by no means to be considered as a proof that the matter which it contains is new; nor can we trace the progress of the Anglo-Saxon institutions with any degree of certainty, by following the dates of the statutes in which we find them first noticed. All arguments founded on the apparent chronology of the subjects included in the laws, are liable to great fallacies. Furthermore, a considerable portion of the Anglo-Saxon law was never recorded in writing. There can be no doubt but that the rules of inheritance were well established and defined; yet we have not a single law, and hardly a single document from which the course of the descent of land can be inferred. * * Positive proof cannot be obtained of the commencement of any institution, because the first written law relating to it may possibly be merely confirmatory or declaratory; neither can the non-existence of any institution be inferred from the absence of direct evidence. Written laws were modified and controlled by customs of which no trace can be discovered, until after the lapse of centuries, although those usages must have been in constant vigor during the long interval of silence."--_1 Palgrave's Rise and Progress of the English Commonwealth_, 58-9.] [Footnote 43: Rapin says, "The customs now practised in England are, for the most part, the same as the Anglo-Saxons brought with them from Germany."--_Rapin's Dissertation on the Government of the Anglo-Saxons_, vol. 2, Oct. Ed., p. 198. See _Kelham's Discourse before named_.] [Footnote 44: Hallam says, "The county of Sussex contains sixty-five ('hundreds'); that of Dorset forty-three; while Yorkshire has only twenty-six; and Lancashire but six."--_2 Middle Ages_, 391.] [Footnote 45: Excepting also matters pertaining to the collection of the revenue, which were determined in the king's court of exchequer. But even in this court it was the law "_that none be amerced but by his peers_."--_Mirror of Justices_, 49.] [Footnote 46: "For the English laws, _although not written_, may, as it should seem, and that without any absurdity, be termed laws, (since this itself is law--that which pleases the prince has the force of law,) I mean those laws which it is evident were promulgated by the advice of the nobles and the authority of the prince, concerning doubts to be settled in their assembly. For if from the mere want of writing only, they should not be considered laws, then, unquestionably, writing would seem to confer more authority upon laws themselves, than either the equity of the persons constituting, or the reason of those framing them."--_Glanville's Preface_, p. 38. (Glanville was chief justice of Henry II., 1180.) _2 Turner's History of the Anglo-Saxons_, 280.] [Footnote 47: Mackintosh's History of England, ch. 3. Lardner's Cabinet Cyclopædia, 266.] [Footnote 48: If the laws of the king were received as authoritative by the juries, what occasion was there for his appointing special commissioners for the trial of offences, without the intervention of a jury, as he frequently did, in manifest and acknowledged violation of Magna Carta, and "the law of the land?" These appointments were undoubtedly made for no other reason than that the juries were not sufficiently subservient, but judged according to their own notions of right, instead of the will of the king--whether the latter were expressed in his statutes, or by his judges.] [Footnote 49: Of course, Mr. Reeve means to be understood that, in the hundred court, and court-leet, _the jurors were the judges_, as he declares them to have been in the county court; otherwise the "bailiff" or "steward" must have been judge.] [Footnote 50: The jurors were sometimes called "assessors," because they assessed, or determined the amount of fines and amercements to be imposed.] [Footnote 51: "The barons of the Hundred" were the freeholders. Hallam says: "The word _baro_, originally meaning only a man, was of very large significance, and is not unfrequently applied to common freeholders, as in the phrase _court-baron_."--_3 Middle Ages_, 14-15. _Blackstone_ says: "The _court-baron_ * * is a court of common law, and it is the court of the barons, by which name the freeholders were sometimes anciently called; for that it is held before the freeholders who owe suit and service to the manor."--_3 Blackstone_, 33.] [Footnote 52: The ancient jury courts kept no records, because those who composed the courts could neither make nor read records. Their decisions were preserved by the memories of the jurors and other persons present.] [Footnote 53: Stuart says: "The courts, or civil arrangements, which were modelled in Germany, preserved the independence of the people; and having followed the Saxons into England, and continuing their importance, they supported the envied liberty we boast of. * * "As a chieftain led out his retainers to the field, and governed them during war; so in peace he summoned them together, and exerted a civil jurisdiction. He was at once their captain and their judge. They constituted his court; and having inquired with him into the guilt of those of their order whom justice had accused, they assisted him to enforce his decrees. "This court (the court-baron) was imported into England; but the innovation which conquest introduced into the fashion of the times altered somewhat its appearance. * * "The head or lord of the manor called forth his attendants to his hall. * * He inquired into the breaches of custom, and of justice, which were committed within the precincts of his territory; and with his followers, _who sat with him as judges_, he determined in all matters of debt, and of trespass to a certain amount. He possessed a similar jurisdiction with the chieftain in Germany, and his tenants enjoyed an equal authority with the German retainers. "But a mode of administration which intrusted so much power to the great could not long be exercised without blame or injustice. The German, guided by the candor of his mind, and entering into all his engagements with the greatest ardor, perceived not, at first, that the chieftain to whom he submitted his disputes might be swayed, in the judgments he pronounced, by partiality, prejudice, or interest; and that the influence he maintained with his followers was too strong to be restrained by justice. Experience instructed him of his error; he acknowledged the necessity of appealing from his lord; and the court of the Hundred was erected. "This establishment was formed both in Germany and England, by the inhabitants of a certain division, who extended their jurisdiction over the territory they occupied.[65] They bound themselves under a penalty to assemble at stated times; _and having elected the wisest to preside over them, they judged, not only all civil and criminal matters_, but of those also which regarded religion and the priesthood. The judicial power thus invested in the people was extensive; they were able to preserve their rights, and attended this court in arms. "As the communication, however, and intercourse, of the individuals of a German community began to be wider, and more general, as their dealings enlarged, and as disputes arose among the members of different hundreds, the insufficiency of these courts for the preservation of order was gradually perceived. The _shyre mote_, therefore, or _county court_, was instituted; and it formed the chief source of justice both in Germany and England. "The powers, accordingly, which had been enjoyed by the court of the _hundred_, were considerably impaired. It decided no longer concerning capital offences; it decided not concerning matters of liberty, and the property of estates, or of slaves; its judgments, in every case, became subject to review; and it lost entirely the decision of causes, when it delayed too long to consider them. "Every subject of claim or contention was brought, in the first instance, or by appeal, to the _county court_; and the _earl_, or _eorldorman_, who presided there, was active to put the laws in execution. He repressed the disorders which fell out within the circuit of his authority; and the least remission in his duty, or the least fraud he committed, was complained of and punished. He was elected from among the great, and was above the temptation of a bribe; but, to encourage his activity, he was presented with a share of the territory he governed, or was entitled to a proportion of the fines and profits of justice. Every man, in his district, was bound to inform him concerning criminals, and to assist him to bring them to trial; and, as in rude and violent times the poor and helpless were ready to be oppressed by the strong, he was instructed particularly to defend them. "His court was ambulatory, and assembled only twice a year, unless the distribution of justice required that its meetings should be oftener. Every freeholder in the county was obliged to attend it; and should he refuse this service, his possessions were seized, and he was forced to find surety for his appearance. The neighboring earls held not their courts on the same day; and, what seems very singular, no judge was allowed, after meals, to exercise his office. "The druids also, or priests, in Germany, as we had formerly occasion to remark, and the clergy in England, exercised a jurisdiction in the _hundred_ and _county_ courts. They instructed the people in religious duties, and in matters regarding the priesthood; and the princes, earls, or _eorldormen_, related to them the laws and customs of the community. These judges were mutually a check to each other; but it was expected that they should agree in their judgments, and should willingly unite their efforts for the public interest.[66] "_But the prince or earl performed not, at all times, in person, the obligations of his office._ The enjoyment of ease and of pleasure, to which in Germany he had delivered himself over, when disengaged from war, and the mean idea he conceived of the drudgery of civil affairs, _made him often delegate to an inferior person the distribution of justice in his district_. The same sentiments were experienced by the Saxon nobility; and the service which they owed by their tenures, and the high employments they sustained, called them often from the management of their counties. The progress, too, of commerce, giving an intricacy to cases, and swelling the civil code, added to the difficulty of their office, and made them averse to its duties. _Sheriffs, therefore, or deputies, were frequently appointed to transact their business; and though these were at first under some subordination to the earls, they grew at length to be entirely independent of them. The connection of jurisdiction and territory ceasing to prevail, and the civil being separated from the ecclesiastical power, they became the sole and proper officers for the direction of justice in the counties._ "The _hundred_, however, and _county_ courts, were not equal of themselves for the purposes of jurisdiction and order. It was necessary that a court should be erected, of supreme authority, where the disputes of the great should be decided, where the disagreeing sentiments of judges should be reconciled, and where protection should be given to the people against their fraud and injustice. "The princes accordingly, or chief nobility, in the German communities, assembled together to judge of such matters. The Saxon nobles continued this prerogative; and the king, or, in his absence, the chief _justiciary_, watched over their deliberations. But it was not on every trivial occasion that this court interested itself. In smaller concerns, justice was refused during three sessions of the _hundred_, and claimed without effect, at four courts of the county, before there could lie an appeal to it. "So gradually were these arrangements established, and so naturally did the varying circumstances in the situation of the Germans and Anglo-Saxons direct those successive improvements which the preservation of order, and the advantage of society, called them to adopt. The admission of the people into the courts of justice preserved, among the former, that equality of ranks for which they were remarkable; and it helped to overturn, among the latter, those envious distinctions which the feudal system tended to introduce, and prevented that venality in judges, and those arbitrary proceedings, which the growing attachment to interest, and the influence of the crown, might otherwise have occasioned."--_Stuart on the Constitution of England_, p. 222 to 245. "In the Anglo-Saxon period, accordingly, _twelve_ only were elected; and these, together with the judge, or presiding officer of the district, being sworn to regard justice, and the voice of reason, or conscience, all causes were submitted to them."--_Ditto_, p. 260. "Before the orders of men were very nicely distinguished, the jurors were elected from the same rank. When, however, a regular subordination of orders was established, and when a knowledge of property had inspired the necessitous with envy, and the rich with contempt, _every man was tried by his equals_. The same spirit of liberty which gave rise to this regulation attended its progress. Nor could monarchs assume a more arbitrary method of proceeding. 'I will not' (said the Earl of Cornwall to his sovereign) 'render up my castles, nor depart the kingdom, but by judgment of my peers.' Of this institution, so wisely calculated for the preservation of liberty, all our historians have pronounced the eulogium."--_Ditto_, p. 262-3. Blackstone says: "The policy of our ancient constitution, as regulated and established by the great Alfred, was to bring justice home to every man's door, by constituting as many courts of judicature as there are manors and towns in the kingdom; _wherein injuries were redressed in an easy and expeditious manner, by the suffrage of neighbors and friends_. These little courts, however, communicated with others of a larger jurisdiction, and those with others of a still greater power; ascending gradually from the lowest to the supreme courts, which were respectively constituted to correct the errors of the inferior ones, and to determine such causes as, by reason of their weight and difficulty, demanded a more solemn discussion. The course of justice flowing in large streams from the king, as the fountain, to his superior courts of record; and being then subdivided into smaller channels, till the whole and every part of the kingdom were plentifully watered and refreshed. An institution that seems highly agreeable to the dictates of natural reason, as well as of more enlightened policy. * * "These inferior courts, at least the name and form of them, still continue in our legal constitution; but as the superior courts of record have, in practice, obtained a concurrent original jurisdiction, and as there is, besides, a power of removing plaints or actions thither from all the inferior jurisdictions; upon these accounts (among others) it has happened that these petty tribunals have fallen into decay, and almost into oblivion; whether for the better or the worse may be matter of some speculation, when we consider, on the one hand, the increase of expense and delay, and, on the other, the more able and impartial decisions that follow from this change of jurisdiction. "The order I shall observe in discoursing on these several courts, constituted for the redress of _civil_ injuries, (for with those of a jurisdiction merely _criminal_ I shall not at present concern myself,[67]) will be by beginning with the lowest, and those whose jurisdiction, though public and generally dispersed through the kingdom, is yet (with regard to each particular court) confined to very narrow limits; and so ascending gradually to those of the most extensive and transcendent power."--3 _Blackstone_, 30 to 32. "The _court-baron_ is a court incident to every manor in the kingdom, _to be holden by the steward within the said manor_. This court-baron is of two natures; the one is a customary court, of which we formerly spoke, appertaining entirely to the copy-holders, in which their estates are transferred by surrender and admittance, and other matters transacted relative to their tenures only. The other, of which we now speak, is a court of common law, and it is a court of the barons, by which name the freeholders were sometimes anciently called; _for that it is held by the freeholders who owe suit and service to the manor, the steward being rather the registrar than the judge_. These courts, though in their nature distinct, are frequently confounded together. _The court we are now considering, viz., the freeholders court, was composed of the lord's tenants, who were the pares_ (equals) _of each other, and were bound by their feudal tenure to assist their lord in the dispensation of domestic justice_. This was formerly held every three weeks; and its most important business is to determine, by writ of right, all controversies relating to the right of lands within the manor. It may also hold plea of any personal actions, of debt, trespass in the case, or the like, where the debt or damages do not amount to forty shillings; which is the same sum, or three marks, that bounded the jurisdiction of the ancient Gothic courts in their lowest instance, or _fierding courts_, so called because four were instituted within every superior district or hundred."--3 _Blackstone_, 33, 34. "A _hundred court_ is only a larger court-baron, being held for all the inhabitants of a particular hundred, instead of a manor. _The free suitors are here also the judges, and the steward the registrar, as in the case of a court-baron._ It is likewise no court of record, resembling the former at all points, except that in point of territory it is of greater jurisdiction. This is said by Sir Edward Coke to have been derived out of the county court for the ease of the people, that they might have justice done to them at their own doors, without any charge or loss of time; but its institution was probably coeval with that of hundreds themselves, which were formerly observed to have been introduced, though not invented, by Alfred, being derived from the polity of the ancient Germans. The _centeni_, we may remember, were the principal inhabitants of a district composed of different villages, originally in number a _hundred_, but afterward only called by that name, and who probably gave the same denomination to the district out of which they were chosen. Cæsar speaks positively of the judicial power exercised in their hundred courts and courts-baron. '_Princeps regiorum atque pagorum_' (which we may fairly construe the lords of hundreds and manors) '_inter suos jus dicunt, controversias que minuunt_.' (The chiefs of the country and the villages declare the law among them, and abate controversies.) And Tacitus, who had examined their constitution still more attentively, informs us not only of the authority of the lords, but that of the _centeni_, the hundreders, or jury, _who were taken out of the common freeholders, and had themselves a share in the determination. 'Eliguntur in conciliis et principes, qui jura per pagos vicosque reddunt, centeni singulis, ex plebe comites concilium simul et auctoritas adsunt_.' (The princes are chosen in the assemblies, who administer the laws throughout the towns and villages, and with each one are associated an hundred companions, taken from the people, for purposes both of counsel and authority.) This hundred court was denominated _hæreda_ in the Gothic constitution. But this court, as causes are equally liable to removal from hence as from the common court-baron, and by the same writs, and may also be reviewed by writ of false judgment, is therefore fallen into equal disuse with regard to the trial of actions."--_3 Blackstone_, 34, 35. "The _county court_ is a court incident to the jurisdiction of the _sheriff_. It is not a court of record, but may hold pleas of debt, or damages, under the value of forty shillings; over some of which causes these inferior courts have, by the express words of the statute of Gloucester, (6 Edward I., ch. 8,) a jurisdiction totally exclusive of the king's superior courts. * * The county court may also hold plea of many real actions, and of all personal actions to any amount, by virtue of a special writ, called a _justicies_, which is a writ empowering the sheriff, for the sake of despatch, to do the same justice in his county court as might otherwise be had at Westminster. _The freeholders of the county court are the real judges in this court, and the sheriff is the ministerial officer._ * * In modern times, as proceedings are removable from hence into the king's superior courts, by writ of pone or _recordari_, in the same manner as from hundred courts and courts-baron, and as the same writ of false judgment may be had in nature of a writ of error, this has occasioned the same disuse of bringing actions therein."--_3 Blackstone_, 36, 37. "Upon the whole, we cannot but admire the wise economy and admirable provision of our ancestors in settling the distribution of justice in a method so well calculated for cheapness, expedition, and ease. By the constitution which they established, all trivial debts, and injuries of small consequence, were to be recovered or redressed in every man's own county, hundred, or perhaps parish."--_3 Blackstone_, 59.] [Footnote 54: 1 Blackstone, 63-67.] [Footnote 55: This quaint and curious book (Smith's Commonwealth of England) describes the _minutiæ_ of trials, giving in detail the mode of impanelling the jury, and then the conduct of the lawyers, witnesses, and court. I give the following extracts, _tending to show that the judges impose no law upon the juries, in either civil or criminal cases, but only require them to determine the causes according to their consciences_. In civil causes he says: "When it is thought that it is enough pleaded before them, and the witnesses have said what they can, one of the judges, with a brief and pithy recapitulation, reciteth to the twelve in sum the arguments of the sergeants of either side, that which the witnesses have declared, and the chief points of the evidence showed in writing, and once again putteth them in mind of the issue, and sometime giveth it them in writing, delivering to them the evidence which is showed on either part, if any be, (evidence here is called writings of contracts, authentical after the manner of England, that is to say, written, sealed, and delivered,) and biddeth them go together."--p. 74. This is the whole account given of the charge to the jury. In criminal cases, after the witnesses have been heard, and the prisoner has said what he pleases in his defence, the book proceeds: "When the judge hath heard them say enough, he asketh if they can say any more: If they say no, then he turneth his speech to the inquest. 'Good men, (saith he,) ye of the inquest, ye have heard what these men say against the prisoner. You have also heard what the prisoner can say for himself. _Have an eye to your oath, and to your duty, and do that which God shall put in your minds to the discharge of your consciences_, and mark well what is said.'"--p. 92. This is the whole account given of the charge in a criminal case. The following statement goes to confirm the same idea, that jurors in England have formerly understood it to be their right and duty to judge only according to their consciences, and not to submit to any dictation from the court, either as to law or fact. "If having pregnant evidence, nevertheless, the twelve do acquit the malefactor, which they will do sometime, especially if they perceive either one of the justices or of the judges, or some other man, to pursue too much and too maliciously the death of the prisoner, * * the prisoner escapeth; but the twelve (are) not only rebuked by the judges, but also threatened of punishment; and many times commanded to appear in the Star-Chamber, or before the Privy Council for the matter. But this threatening chanceth oftener than the execution thereof; _and the twelve answer with most gentle words, they did it according to their consciences_, and pray the judges to be good unto them, _they did as they thought right, and as they accorded all_, and so it passeth away for the most part."--p. 100. The account given of the trial of a peer of the realm corroborates the same point: "If any duke, marquis, or any other of the degrees of a baron, or above, lord of the Parliament, be appeached of treason, or any other capital crime, he is judged by his peers and equals; that is, the yeomanry doth not go upon him, but an inquest of the Lords of Parliament, and they give their voice not one for all, but each severally as they do in Parliament, being (beginning) at the youngest lord. And for judge one lord sitteth, who is constable of England for that day. The judgment once given, he breaketh his staff, and abdicateth his office. In the rest there is no difference from that above written," (that is, in the case of a freeman.)--p. 98.] [Footnote 56: "The present form of the jurors' oath is that they shall 'give a true verdict _according to the evidence_.' At what time this form was introduced is uncertain; but for several centuries after the Conquest, the jurors, _both in civil and criminal cases_, were sworn merely to _speak the truth_. (Glanville, lib. 2, cap. 17; Bracton, lib. 3, cap. 22; lib. 4, p. 287, 291; Britton, p. 135.) Hence their decision was accurately termed _veredictum_, or verdict, that is, 'a thing truly said'; whereas the phrase 'true verdict' in the modern oath is not an accurate expression."--_Political Dictionary_, word _Jury_.] [Footnote 57: Of course, there can be no legal trial by jury, in either civil or criminal cases, where the jury are sworn to try the cases "_according to law_."] [Footnote 58: _Coke_, as late as 1588, admits that amercements must be fixed by the peers (8 Coke's Rep. 38, 2 Inst. 27); but he attempts, wholly without success, as it seems to me, to show a difference between fines and amercements. The statutes are very numerous, running through the three or four hundred years immediately succeeding Magna Carta, in which fines, ransoms, and amercements are spoken of as if they were the common punishments of offences, and as if they all meant the same thing. If, however, any technical difference could be made out between them, there is clearly none in principle; and the word amercement, as used in Magna Carta, must be taken in its most comprehensive sense.] [Footnote 59: "_Common right_" was the common law. _1 Coke's Inst._ 142 a. 2 _do._ 55, 6.] [Footnote 60: The oath of the justices is in these words: "Ye shall swear, that well and lawfully ye shall serve our lord the king _and his people_, in the office of justice, and that lawfully ye shall counsel the king in his business, and that ye shall not counsel nor assent to anything which may turn him in damage or disherison in any manner, way, or color. And that ye shall not know the damage or disherison of him, whereof ye shall not cause him to be warned by yourself, or by other; _and that ye shall do equal law and execution of right to all his subjects, rich and poor, without having regard to any person_. And that ye take not by yourself, or by other, privily nor apertly, gift nor reward of gold nor silver, nor of any other thing that may turn to your profit, unless it be meat or drink, and that of small value, of any man that shall have any plea or process hanging before you, as long as the same process shall be so hanging, nor after for the same cause. And that ye take no fee, as long as ye shall be justice, nor robe of any man great or small, but of the king himself. And that ye give none advice or counsel to no man great or small, in no case where the king is party. And in case that any, of what estate or condition they be, come before you in your sessions with force and arms, or otherwise against the peace, or against the form of the statute thereof made, _to disturb execution of the common law_," (mark the term, "_common law_,") "or to menace the people that they may not pursue the law, that ye shall cause their bodies to be arrested and put in prison; and in case they be such that ye cannot arrest them, that ye certify the king of their names, and of their misprision, hastily, so that he may thereof ordain a convenable remedy. And that ye by yourself, nor by other, privily nor apertly, maintain any plea or quarrel hanging in the king's court, or elsewhere in the country. _And that ye deny no man common right by the king's letters, nor none other man's, nor for none other cause; and in case any letters come to you contrary to the law," (that is, the "common law" before mentioned,) "that ye do nothing by such letters, but certify the king thereof, and proceed to execute the law," (the "common law" before mentioned,) "notwithstanding the same letters._ And that ye shall do and procure the profit of the king and of his crown, with all things where ye may reasonably do the same. And in case ye be from henceforth found in default in any of the points aforesaid, ye shall be at the king's will of body, lands, and goods, thereof to be done as shall please him, as God you help and all saints."--_18 Edward III._, st. 4. (1344.)] [Footnote 61: That the terms "_Law_" and "_Right_," as used in this statute, mean the _common law_, is shown by the preamble, which declares the motive of the statute to be that "_the Law of the Land, (the common law,) which we (the king) by our oath are bound to maintain_," may be the better kept, &c.] [Footnote 62: The following is a copy of the original: "_Forma Juramenti Regis Angliæ in Coronacione sua_: (Archiepiscopus Cantuariæ, ad quo de jure et consuetudine Ecclesiæ Cantuariæ, antiqua et approbata, pertinet Reges Angliæ inungere et coronare, die coronacionis Regis, anteque Rex coronetur, faciet Regi Interrogationes subscriptas.) Si leges et consuetudines ab antiquis justis et Deo devotis Regibus plebi Anglicano concessas, cum sacramenti confirmacione eidem plebi concedere et servare (volueris:) Et præsertim leges et consuetudines et libertates a glorioso Rege Edwardo clero populoque concessas? (Et respondeat Rex,) Concedo et servare volo, et sacramento confirmare. Servabis Ecclesiæ Dei, Cleroque, et Populo, pacem ex integro et concordiam in Deo secundum vires tuas? (Et respondeat Rex,) Servabo. Facies fieri in omnibus Judiciis tuis equam et rectam justiciam, et discrecionem, in misericordia et veritate, secundum vires tuas? (Et respondeat Rex,) Faciam. Concedis justas, leges et consuetudines esse tenendas, et promittis per te eas esse protegendas, et ad honorem Dei corroborandas, quas vulgus elegit, secundum vires tuas? (Et respondeat Rex,) Concedo et promitto."] [Footnote 63: It would appear, from the text, that the Charter of Liberties and the Charter of the Forest were sometimes called "_laws of the land_."] [Footnote 64: As the ancient coronation oath, given in the text, has come down from the Saxon times, the following remarks of Palgrave will be pertinent, in connection with the oath, as illustrating the fact that, in those times, no special authority attached to the laws of the king: "The Imperial Witenagemot was not a legislative assembly, in the strict sense of the term, for the whole Anglo-Saxon empire. Promulgating his edicts amidst his peers and prelates, the king uses the language of command; but the theoretical prerogative was modified by usage, and the practice of the constitution required that the law should be accepted by the legislatures (courts) of the several kingdoms. * * The 'Basileus' speaks in the tone of prerogative: Edgar does not merely recommend, he commands that the law shall be adopted by all the people, whether English, Danes, or Britons, in every part of his empire. Let this statute be observed, he continues, by Earl Oslac, and all the host who dwell under his government, and let it be transmitted by writ to the ealdormen of the other subordinate states. And yet, in defiance of this positive injunction, the laws of Edgar were not accepted in Mercia until the reign of Canute the Dane. It might be said that the course so adopted may have been an exception to the general rule; but in the scanty and imperfect annals of Anglo-Saxon legislation, we shall be able to find so many examples of similar proceedings, _that this mode of enactment must be considered as dictated by the constitution of the empire_. Edward was the supreme lord of the Northumbrians, but more than a century elapsed before they obeyed his decrees. The laws of the glorious Athelstane had no effect in Kent, (county,) the dependent appanage of his crown, until sanctioned by the _Witan_ of the _shire_ (county court). And the power of Canute himself, the 'King of all England,' does not seem to have compelled the Northumbrians to receive his code, until the reign of the Confessor, when such acceptance became a part of the compact upon the accession of a new earl. Legislation constituted but a small portion of the ordinary business transacted by the Imperial Witenagemot. The wisdom of the assembly was shown in avoiding unnecessary change. _Consisting principally of traditionary usages and ancestorial customs, the law was upheld by opinion. The people considered their jurisprudence as a part of their inheritance._ Their privileges and their duties were closely conjoined; _most frequently, the statutes themselves were only affirmances of ancient customs, or declaratory enactments_. In the Anglo-Saxon commonwealth, therefore, the legislative functions of the Witenagemot were of far less importance than the other branches of its authority. * * The members of the Witenagemot were the 'Pares Curiæ' (Peers of Court) of the kingdom. How far, on these occasions, their opinion or their equity controlled the power of the crown, cannot be ascertained. But the form of inserting their names in the _'Testing Clause_' was retained under the Anglo-Norman reigns; and the sovereign, who submitted his Charter to the judgment of the _Proceres_, professed to be guided by the opinion which they gave. As the '_Pares_' of the empire, the Witenagemot decided the disputes between the great vassals of the crown. * * The jurisdiction exercised in the Parliament of Edward I., when the barony of a _Lord-Marcher_ became the subject of litigation, is entirely analogous to the proceedings thus adopted by the great council of Edward, the son of Alfred, the Anglo-Saxon king. In this assembly, the king, the prelates, the dukes, the ealdormen, and the optimates passed judgment upon all great offenders. * * _The sovereign could not compel the obedience of the different nations composing the Anglo-Saxon empire._ Hence, it became more necessary for him to _conciliate their opinions_, if he solicited any service from a vassal prince or a vassal state beyond the ordinary terms of the compact; still more so, when he needed the support of a free burgh or city. And we may view the assembly (the Witenagemot) as partaking of the character of a political congress, in which the liegemen of the crown, or the communities protected by the 'Basileus,' (sovereign,) were asked or persuaded to relieve the exigences of the state, or to consider those measures which might be required for the common weal. The sovereign was compelled to parley with his dependents. It may be doubted whether any one member of the empire had power to legislate for any other member. The Regulus of Cumbria was unaffected by the vote of the Earl of East Angliæ, if he chose to stand out against it. These dignitaries constituted a congress, in which the sovereign could treat more conveniently and effectually with his vassals than by separate negotiations. * * But the determinations of the Witan bound those only who were present, or who concurred in the proposition; and a vassal denying his assent to the grant, might assert that the engagement which he had contracted with his superior did not involve any pecuniary subsidy, but only rendered him liable to perform service in the field."--_1 Palgrave's Rise and Progress of the English Commonwealth_, 637 to 642.] [Footnote 65: "It was the freemen in Germany, and the possessors of land in England, who were _suitors_ (jurors) in the hundred court. These ranks of men were the same. The alteration which had happened in relation to property had invested the German freemen with land or territory."] [Footnote 66: It would be wholly erroneous, I think, to infer from this statement of Stuart, that either the "priests, princes, earls, or _eorldormen_" exercised any authority over the jury in the trial of causes, in the way of dictating the law to them. Henry's account of this matter doubtless gives a much more accurate representation of the truth. He says that _anciently_ "The meeting (the county court) was opened with a discourse by the bishop, explaining, out of the Scriptures and ecclesiastical canons, their several duties as good Christians and members of the church. After this, the alderman, or one of his assessors, made a discourse on the laws of the land, and the duties of good subjects and good citizens. _When these preliminaries were over, they proceeded to try and determine, first the causes of the church, next the pleas of the crown, and last of all the controversies of private parties._"--3 _Henry's History of Great Britain_, 348. This view is corroborated by Tyrrell's _Introduction to the History of England_, p. 83-84, and by Spence's _Origin of the Laws and Political Institutions of Modern Europe_, p. 447, and the note on the same page. Also by a law of Canute to this effect, _In every county let there be twice a year an assembly, whereat the bishop and the earl shall be present, the one to instruct the people in divine, the other in human, laws_.--_Wilkins_, p. 136.] [Footnote 67: There was no distinction between the civil and criminal counts, as to the rights or powers of juries.] CHAPTER IV. THE RIGHTS AND DUTIES OF JURIES IN CIVIL SUITS. The evidence already given in the preceding chapters proves that the rights and duties of jurors, in civil suits, were anciently the same as in criminal ones; that the laws of the king were of no obligation upon the consciences of the jurors, any further than the laws were seen by them to be just; that very few laws were enacted applicable to civil suits; that when a new law was enacted, the nature of it could have been known to the jurors only by report, and was very likely not to be known to them at all; that nearly all the law involved in civil suits was _unwritten_; that there was _usually_ no one in attendance upon juries who could possibly enlighten them, unless it were sheriffs, stewards, and bailiffs, who were unquestionably too ignorant and untrustworthy to instruct them authoritatively; that the jurors must therefore necessarily have judged for themselves of the whole case; and that, _as a general rule_, they could judge of it by no law but the law of nature, or the principles of justice as they existed in their own minds. The ancient oath of jurors in civil suits, viz., that "_they would make known the truth according to their consciences_," implies that the jurors were above the authority of all legislation. The modern oath, in England, viz., that they "_will well and truly try the issue between the parties, and a true verdict give, according to the evidence_," implies the same thing. If the laws of the king had been binding upon a jury, they would have been sworn to try the cases _according to law_, or according to the laws. The ancient writs, in civil suits, as given in Glanville, (within the half century before Magna Carta,) to wit, "Summon twelve free and legal men, (or sometimes twelve knights,) to be in court, _prepared upon their oaths to declare whether A or B have the greater right to the land in question_," indicate that the jurors judged of the whole matter on their consciences only. The language of Magna Carta, already discussed, establishes the same point; for, although some of the words, such as "outlawed," and "exiled," would apply only to criminal cases, nearly the whole chapter applies as well to civil as to criminal suits. For example, how could the payment of a debt ever be enforced against an unwilling debtor, if he could neither be "arrested, imprisoned, nor deprived of his freehold," and if the king could neither "proceed against him, nor send any one against him, by force or arms"? Yet Magna Carta as much forbids that any of these things shall be done against a debtor, as against a criminal, _except according to, or in execution of_, "_a judgment of his peers, or the law of the land_,"--a provision which, it has been shown, gave the jury the free and absolute right to give or withhold "judgment" according to their consciences, irrespective of all legislation. The following provisions, in the Magna Carta of John, illustrate the custom of referring the most important matters of a civil nature, even where the king was a party, to the determination of the peers, or of twelve men, acting by no rules but their own consciences. These examples at least show that there is nothing improbable or unnatural in the idea that juries should try all civil suits according to their own judgments, independently of all laws of the king. _Chap. 65._ "If we have disseized or dispossessed the Welsh of any lands, liberties, or other things, without the legal judgment of their peers, they shall be immediately restored to them. And if any dispute arises upon this head, the matter shall be determined in the Marches,[68] _by the judgment of their peers_," &c. _Chap. 68._ "We shall treat with Alexander, king of Scots, concerning the restoring of his sisters, and hostages, and rights and liberties, in the same form and manner as we shall do to the rest of our barons of England; unless by the engagements, which his father William, late king of Scots, hath entered into with us, it ought to be otherwise; _and this shall be left to the determination of his peers in our court_." _Chap. 56._ "All evil customs concerning forests, warrens, and foresters, warreners, sheriffs, and their officers, rivers and their keepers, shall forthwith be inquired into in each county, _by twelve knights of the same shire_, chosen by the most creditable persons in the same county, _and upon oath_; and within forty days after the said inquest, be utterly abolished, so as never to be restored." There is substantially the same reason why a jury _ought_ to judge of the justice of laws, and hold all unjust laws invalid, in civil suits, as in criminal ones. That reason is the necessity of guarding against the tyranny of the government. Nearly the same oppressions can be practised in civil suits as in criminal ones. For example, individuals may be deprived of their liberty, and robbed of their property, by judgments rendered in civil suits, as well as in criminal ones. If the laws of the king were imperative upon a jury in civil suits, the king might enact laws giving one man's property to another, or confiscating it to the king himself, and authorizing civil suits to obtain possession of it. Thus a man might be robbed of his property at the arbitrary pleasure of the king. In fact, all the property of the kingdom would be placed at the arbitrary disposal of the king, through the judgments of juries in civil suits, if the laws of the king were imperative upon a jury in such suits.[69] Furthermore, it would be absurd and inconsistent to make a jury paramount to legislation in _criminal_ suits, and subordinate to it in _civil_ suits; because an individual, by resisting the execution of a _civil_ judgment, founded upon an unjust law, could give rise to a _criminal_ suit, in which the jury would be bound to hold the same law invalid. So that, if an unjust law were binding upon a jury in _civil_ suits, a defendant, by resisting the execution of the judgment, could, _in effect_, convert the civil action into a criminal one, in which the jury would be paramount to the same legislation, to which, in the _civil_ suit, they were subordinate. In other words, in the _criminal_ suit, the jury would be obliged to justify the defendant in resisting a law, which, in the _civil_ suit, they had said he was bound to submit to. To make this point plain to the most common mind--suppose a law be enacted that the property of A shall be given to B. B brings a civil action to obtain possession of it. If the jury, in this _civil_ suit, are bound to hold the law obligatory, they render a judgment in favor of B, that he be put in possession of the property; _thereby declaring that A is bound to submit to a law depriving him of his property_. But when the execution of that judgment comes to be attempted--that is, when the sheriff comes to take the property for the purpose of delivering it to B--A acting, as he has a _natural_ right to do, in defence of his property, resists and kills the sheriff. He is thereupon indicted for murder. On this trial his plea is, that in killing the sheriff, he was simply exercising his _natural_ right of defending his property against an unjust law. The jury, not being bound, in a _criminal_ case, by the authority of an unjust law, judge the act on its merits, and acquit the defendant--thus declaring that he was _not_ bound to submit to the same law which the jury, in the _civil_ suit, had, by their judgment, declared that he _was_ bound to submit to. Here is a contradiction between the two judgments. In the _civil_ suit, the law is declared to be obligatory upon A; in the _criminal_ suit, the same law is declared to be of no obligation. It would be a solecism and absurdity in government to allow such consequences as these. Besides, it would be practically impossible to maintain government on such principles; for no government could enforce its _civil_ judgments, unless it could support them by _criminal_ ones, in case of resistance. A jury must therefore be paramount to legislation in both civil and criminal cases, or in neither. If they are paramount in neither, they are no protection to liberty. If they are paramount in both, then all legislation goes only for what it may chance to be worth in the estimation of a jury. Another reason why Magna Carta makes the discretion and consciences of juries paramount to all legislation in _civil_ suits, is, that if legislation were binding upon a jury, the jurors--(by reason of their being unable to read, as jurors in those days were, and also by reason of many of the statutes being unwritten, or at least not so many copies written as that juries could be supplied with them)--would have been necessitated--at least in those courts in which the king's justices sat--to take the word of those justices as to what the laws of the king really were. In other words, they would have been necessitated _to take the law from the court_, as jurors do now. Now there were two reasons why, as we may rationally suppose, the people did not wish juries to take their law from the king's judges. One was, that, at that day, the people probably had sense enough to see, (what we, at this day, have not sense enough to see, although we have the evidence of it every day before our eyes,) that those judges, being dependent upon the legislative power, (the king,) being appointed by it, paid by it, and removable by it at pleasure, would be mere tools of that power, and would hold all its legislation obligatory, whether it were just or unjust. This was one reason, doubtless, why Magna Carta made juries, in civil suits, paramount to all instructions of the king's judges. The reason was precisely the same as that for making them paramount to all instructions of judges in criminal suits, viz., that the people did not choose to subject their rights of property, and all other rights involved in civil suits, to the operation of such laws as the king might please to enact. It was seen that to allow the king's judges to dictate the law to the jury would be equivalent to making the legislation of the king imperative upon the jury. Another reason why the people did not wish juries, in civil suits, to take their law from the king's judges, doubtless was, that, knowing the dependence of the judges upon the king, and knowing that the king would, of course, tolerate no judges who were not subservient to his will, they necessarily inferred that the king's judges would be as corrupt, in the administration of justice, as was the king himself, or as he wished them to be. And how corrupt that was, may be inferred from the following historical facts. Hume says: "It appears that the ancient kings of England put themselves entirely upon the footing of the barbarous Eastern princes, whom no man must approach without a present, who sell all their good offices, and who intrude themselves into every business that they may have a pretence for extorting money. Even justice was avowedly bought and sold; the king's court itself, though the supreme judicature of the kingdom, was open to none that brought not presents to the king; the bribes given for expedition, delay, suspension, and doubtless for the perversion of justice, were entered in the public registers of the royal revenue, and remain as monuments of the perpetual iniquity and tyranny of the times. The barons of the exchequer, for instance, the first nobility of the kingdom, were not ashamed to insert, as an article in their records, that the county of Norfolk paid a sum that they might be fairly dealt with; the borough of Yarmouth, that the king's charters, which they have for their liberties, might not be violated; Richard, son of Gilbert, for the king's helping him to recover his debt from the Jews; * * Serlo, son of Terlavaston, that he might be permitted to make his defence, in case he were accused of a certain homicide; Walter de Burton, for free law, if accused of wounding another; Robert de Essart, for having an inquest to find whether Roger, the butcher, and Wace and Humphrey, accused him of robbery and theft out of envy and ill-will, or not; William Buhurst, for having an inquest to find whether he were accused of the death of one Godwin, out of ill-will, or for just cause. I have selected these few instances from a great number of the like kind, which Madox had selected from a still greater number, preserved in the ancient rolls of the exchequer. Sometimes a party litigant offered the king a certain portion, a half, a third, a fourth, payable out of the debts which he, as the executor of justice, should assist in recovering. Theophania de Westland agreed to pay the half of two hundred and twelve marks, that she might recover that sum against James de Fughleston; Solomon, the Jew, engaged to pay one mark out of every seven that he should recover against Hugh de la Hose; Nicholas Morrel promised to pay sixty pounds, that the Earl of Flanders might be distrained to pay him three hundred and forty-three pounds, which the earl had taken from him; and these sixty pounds were to be paid out of the first money that Nicholas should recover from the earl."--_Hume, Appendix 2._ "In the reign of Henry II., the best and most just of these (the Norman) princes, * * Peter, of Blois, a judicious and even elegant writer, of that age, gives a pathetic description of the _venality of justice_, and the oppressions of the poor, * * and he scruples not to complain to the king himself of these abuses. We may judge what the case would be under the government of worse princes."--_Hume, Appendix 2._ Carte says: "The crown exercised in those days an exorbitant and inconvenient power, ordering the justices of the king's court, in suits about lands, to turn out, put, and keep in possession, which of the litigants they pleased; to send contradictory orders; and take large sums of money from each; to respite proceedings; to direct sentences; and the judges, acting by their commission, conceived themselves bound to observe such orders, to the great delay, interruption, and preventing of justice; at least, this was John's practice."--_Carte's History of England_, vol. 1, p. 832. Hallam says: "But of all the abuses that deformed the Anglo-Saxon government, none was so flagitious as the sale of judicial redress. The king, we are often told, is the fountain of justice; but in those ages it was one which gold alone could unseal. Men fined (paid fines) to have right done them; to sue in a certain court; to implead a certain person; to have restitution of land which they had recovered at law. From the sale of that justice which every citizen has a right to demand, it was an easy transition to withhold or deny it. Fines were received for the king's help against the adverse suitor; that is, for perversion of justice, or for delay. Sometimes they were paid by opposite parties, and, of course, for opposite ends."--_2 Middle Ages_, 438. In allusion to the provision of Magna Carta on this subject, Hallam says: "A law which enacts that justice shall neither be sold, denied, nor delayed, stamps with infamy that government under which it had become necessary."--_2 Middle Ages_, 451. Lingard, speaking of the times of Henry II., (say 1184,) says: "It was universally understood that money possessed greater influence than justice in the royal courts, and instances are on record, in which one party has made the king a present to accelerate, and the other by a more valuable offer has succeeded in retarding a decision. * * But besides the fines paid to the sovereigns, _the judges often exacted presents for themselves_, and loud complaints existed against their venality and injustice."--_2 Lingard_, 231. In the narrative of "The costs and charges which I, Richard de Anesty, bestowed in recovering the land of William, my uncle," (some fifty years before Magna Carta,) are the following items: "To Ralph, the king's physician, I gave thirty-six marks and one half; to the king an hundred marks; and to the queen one mark of gold." The result is thus stated. "At last, thanks to our lord the king, and by judgment of his court, my uncle's land was adjudged to me."--_2 Palgrave's Rise and Progress of the English Commonwealth_, p. 9 and 24. Palgrave also says: "The precious ore was cast into the scales of justice, even when held by the most conscientious of our Anglo-Saxon kings. A single case will exemplify the practices which prevailed. Alfric, the heir of 'Aylwin, the black,' seeks to set aside the death-bed bequest, by which his kinsman bestowed four rich and fertile manors upon St. Benedict. Alfric, the claimant, was supported by extensive and powerful connexions; and Abbot Alfwine, the defendant, was well aware that there would be _danger_ in the discussion of the dispute in public, or before the Folkmoot, (people's meeting, or county court); or, in other words, that the Thanes of the shire would do their best to give a judgment in favor of their compeer. The plea being removed into the Royal Court, the abbot acted with that prudence which so often calls forth the praises of the monastic scribe. He gladly emptied twenty marks of gold into the sleeve of the Confessor, (Edward,) and five marks of gold presented to Edith, the Fair, encouraged her to aid the bishop, and to exercise her gentle influence in his favor. Alfric, with equal wisdom, withdrew from prosecuting the hopeless cause, in which his opponent might possess an advocate in the royal judge, and a friend in the king's consort. Both parties, therefore, found it desirable to come to an agreement."--_1 Palgrave's Rise and Progress, &c._, p. 650. But Magna Carta has another provision for the trial of _civil_ suits, that obviously had its origin in the corruption of the king's judges. The provision is, that four knights, to be chosen in every county, by the people of the county, shall sit with the king's judges, in the Common Pleas, in jury trials, (assizes,) on the trial of three certain kinds of suits, that were among the most important that were tried at all. The reason for this provision undoubtedly was, that the corruption and subserviency of the king's judges were so well known, that the people would not even trust them to sit alone in a jury trial of any considerable importance. The provision is this: _Chap. 22_, (of John's Charter.) "Common Pleas shall not follow our court, but shall be holden in some certain place. Trials upon the writ of _novel disseisin_, and of _Mort d'Ancester_, and of _Darrein Presentment_, shall be taken but in their proper counties, and after this manner: We, or, if we should be out of our realm, our chief justiciary, shall send two justiciaries through every county four times a year;[70] _who, with four knights chosen out of every shire, by the people, shall hold the assizes_ (juries) _in the county, on the day and at the place appointed_." It would be very unreasonable to suppose that the king's judges were allowed to _dictate_ the law to the juries, when the people would not even suffer them to sit alone in jury trials, but themselves chose four men to sit with them, to keep them honest.[71] This practice of sending the king's judges into the counties to preside at jury trials, was introduced by the Norman kings. Under the Saxons it was not so. _No officer of the king was allowed to preside at a jury trial; but only magistrates chosen by the people._[72] But the following chapter of John's charter, which immediately succeeds the one just quoted, and refers to the same suits, affords very strong, not to say conclusive, proof, that juries judged of the law in civil suits--that is, _made the law_, so far as their deciding according to their own notions of justice could make the law. _Chap. 23._ "And if, on the county day, the aforesaid assizes cannot be taken, _so many knights and freeholders shall remain, of those who shall have been present on said day, as that the judgments may be rendered by them_, whether the business be more or less." The meaning of this chapter is, that so many of the _civil_ suits, as could not be tried on the day when the king's justices were present, should be tried afterwards, _by the four knights before mentioned, and the freeholders, that is, the jury_. It must be admitted, of course, that the juries, in these cases, judged the matters of law, as well as fact, unless it be presumed that the _knights_ dictated the law to the jury--a thing of which there is no evidence at all. As a final proof on this point, there is a statute enacted seventy years after Magna Carta, which, although it is contrary to the common law, and therefore void, is nevertheless good evidence, inasmuch as it contains an acknowledgment, on the part of the king himself, that juries had a right to judge of the whole matter, law and fact, in civil suits. The provision is this: "It is ordained, that the justices assigned to take the assizes, shall not compel the jurors to say precisely whether it be disseisin, or not, so that they do show the truth of the deed, and seek aid of the justices. But if they will, of their own accord, say that it is disseisin, or not, their verdict shall be admitted at their own peril."--_13 Edward I._, st. 1, ch. 3, sec. 2. (1285.) The question of "disseisin, or not," was a question of law, as well as fact. This statute, therefore, admits that the law, as well as the fact, was in the hands of the jury. The statute is nevertheless void, because the king had no authority to give jurors a dispensation from the obligation imposed upon them by their oaths and the "law of the land," that they should "make known the truth according their (own) consciences." This they were bound to do, and there was no power in the king to absolve them from the duty. And the attempt of the king thus to absolve them, and authorize them to throw the case into the hands of the judges for decision, was simply an illegal and unconstitutional attempt to overturn the "law of the land," which he was sworn to maintain, and gather power into his own hands, through his judges. He had just as much constitutional power to enact that the jurors should not be compelled to declare the _facts_, but that they might leave _them_ to be determined by the king's judges, as he had to enact that they should not be compelled to declare the _law_, but might leave _it_ to be decided by the king's judges. It was as much the legal duty of the jury to decide the law as to decide the fact; and no law of the king could affect their obligation to do either. And this statute is only one example of the numberless contrivances and usurpations which have been resorted to, for the purpose of destroying the original and genuine trial by jury. [Footnote 68: _Marches_, the limits, or boundaries, between England and Wales.] [Footnote 69: That the kings would have had no scruples to enact laws for the special purpose of plundering the people, by means of the judgments of juries, if they could have got juries to acknowledge the authority of their laws, is evident from the audacity with which they plundered them, without any judgments of juries to authorize them. It is not necessary to occupy space here to give details as to these robberies; but only some evidence of the general fact. Hallam says, that "For the first three reigns (of the Norman kings) * * the intolerable exactions of tribute, the rapine of purveyance, the iniquity of royal courts, are continually in the mouths of the historians. 'God sees the wretched people,' says the Saxon Chronicler, 'most unjustly oppressed; first they are despoiled of their possessions, and then butchered.' This was a grievous year (1124). Whoever had any property, lost it by heavy taxes and unjust decrees."--_2 Middle Ages_, 435-6. "In the succeeding reign of _John_, all the rapacious exactions usual to these Norman kings were not only redoubled, but mingled with outrages of tyranny still more intolerable. * * "In 1207 John took a seventh of the movables of lay and spiritual persons, all murmuring, but none daring to speak against it."--_Ditto_, 446. In Hume's account of the extortions of those times, the following paragraph occurs: "But the most barefaced acts of tyranny and oppression were practised against the Jews, who were entirely out of the protection of the law, and were abandoned to the immeasurable rapacity of the king and his ministers. Besides many other indignities, to which they were continually exposed, it appears that they were once all thrown into prison, and the sum of 66,000 marks exacted for their liberty. At another time, Isaac, the Jew, paid alone 5100 marks; Brun, 3000 marks; Jurnet, 2000; Bennet, 500. At another, Licorica, widow of David, the Jew of Oxford, was required to pay 6000 marks."--_Hume's Hist. Eng., Appendix_ 2. Further accounts of the extortions and oppressions of the kings may be found in Hume's History, Appendix 2, and in Hallam's Middle Ages, vol. 2, p. 435 to 446. By Magna Carta John bound himself to make restitution for some of the spoliations he had committed upon individuals "_without the legal judgment of their peers_."--_See Magna Carta of John_, ch. 60, 61, 65 and 66. One of the great charges, on account of which the nation rose against John, was, that he plundered individuals of their property, "_without legal judgment of their peers_." Now it was evidently very weak and short-sighted in John to expose himself to such charges, _if his laws were really obligatory upon the peers_; because, in that case, he could have enacted any laws that were necessary for his purpose, and then, by civil suits, have brought the cases before juries for their "judgment," and thus have accomplished all his robberies in a perfectly legal manner. There would evidently have been no sense in these complaints, that he deprived men of their property "_without legal judgment of their peers_," if his laws had been binding upon the peers; because he could then have made the same spoliations as well with the judgment of the peers as without it. Taking the judgment of the peers in the matter, would have been only a ridiculous and useless formality, if they were to exercise no discretion or conscience of their own, independently of the laws of the king. It may here be mentioned, in passing, that the same would be true in criminal matters, if the king's laws were obligatory upon juries. As an illustration of what tyranny the kings would sometimes practise, Hume says: "It appears from the Great Charter itself, that not only John, a tyrannical prince, and Richard, a violent one, but their father Henry, under whose reign the prevalence of gross abuses is the least to be suspected, were accustomed, from their sole authority, without process of law, to imprison, banish, and attaint the freemen of their kingdom."--_Hume, Appendix_ 2. The provision, also, in the 64th chapter of Magna Carta, that "all unjust and illegal fines, and all amercements, _imposed unjustly, and contrary to the Law of the Land, shall be entirely forgiven_," &c.; and the provision, in chapter 61, that the king "will cause full justice to be administered" in regard to "all those things, of which any person has, without legal judgment of his peers, been dispossessed or deprived, either by King Henry, our father, or our brother, King Richard," indicate the tyrannical practices that prevailed. We are told also that John himself "had dispossessed several great men without any judgment of their peers, condemned others to cruel deaths, * * insomuch that his tyrannical will stood instead of a law."--_Echard's History of England_, 106. Now all these things were very unnecessary and foolish, if his laws were binding upon juries; because, in that case, he could have procured the conviction of these men in a legal manner, and thus have saved the necessity of such usurpation. In short, if the laws of the king had been binding upon juries, there is no robbery, vengeance, or oppression, which he could not have accomplished through the judgments of juries. This consideration is sufficient, of itself, to prove that the laws of the king were of no authority over a jury, in either civil or criminal cases, unless the juries regarded the laws as just in themselves.] [Footnote 70: By the Magna Carta of Henry III. this is changed to once a year.] [Footnote 71: From the provision of Magna Carta, cited in the text, it must be inferred that there can be no legal trial by jury, in civil cases, if only the king's justices preside; that, to make the trial legal, there must be other persons, chosen by the people, to sit with them; the object being to prevent the jury's being deceived by the justices. I think we must also infer that the king's justices could sit only in the three actions specially mentioned. We cannot go beyond the letter of Magna Carta, in making innovations upon the common law, which required all presiding officers in jury trials to be elected by the people.] [Footnote 72: "The earls, sheriffs, and head-boroughs were annually elected in the full folcmote, (people's meeting)."--_Introduction to Gilbert's History of the Common Pleas_, p. 2, _note_. "It was the especial province of the earldomen or earl to attend the shyre-meeting, (the county court,) twice a year, and there officiate as the county judge in expounding the secular laws, as appears by the fifth of Edgar's laws."--_Same_, p. 2, _note_. "Every ward had its proper alderman, who was _chosen_, and not imposed by the prince."--_Same_, p. 4, _text_. "As the aldermen, or earls, were always _chosen_" (by the people) "from among the greatest thanes, who in those times were generally more addicted to arms than to letters, they were but ill-qualified for the administration of justice, and performing the civil duties of their office."--_3 Henry's History of Great Britain_, 343. "But none of these thanes were annually elected in the full folcmote, (people's meeting,) _as the earls, sheriffs, and head-boroughs were_; nor did King Alfred (as this author suggests) deprive the people of the election of those last mentioned magistrates and nobles, much less did he appoint them himself."--_Introd. to Gilbert's Hist. Com. Pleas_, p. 2, _note_. "The sheriff was usually not appointed by the lord, but elected by the freeholders of the district."--_Political Dictionary_, word _Sheriff_. "Among the most remarkable of the Saxon laws we may reckon * * the election of their magistrates by the people, originally even that of their kings, till dear-bought experience evinced the convenience and necessity of establishing an hereditary succession to the crown. But that (the election) of all subordinate magistrates, their military officers or heretochs, their sheriffs, their conservators of the peace, their coroners, their portreeves, (since changed into mayors and bailiffs,) and even their tithing-men and borsholders at the last, continued, some, till the Norman conquest, others for two centuries after, and some remain to this day."--_4 Blackstone_, 413. "The election of sheriffs was left to the people, _according to ancient usage_."--_St. West._ 1, c. 27.--_Crabbe's History of English Law_, 181.] CHAPTER V. OBJECTIONS ANSWERED The following objections will be made to the doctrines and the evidence presented in the preceding chapters. 1. That it is a _maxim_ of the law, that the judges respond to the question of law, and juries only to the question of fact. The answer to this objection is, that, since Magna Carta, judges have had more than six centuries in which to invent and promulgate pretended maxims to suit themselves; and this is one of them. Instead of expressing the law, it expresses nothing but the ambitious and lawless will of the judges themselves, and of those whose instruments they are.[73] 2. It will be asked, Of what use are the justices, if the jurors judge both of law and fact? The answer is, that they are of use, 1. To assist and enlighten the jurors, if they can, by their advice and information; such advice and information to be received only for what they may chance to be worth in the estimation of the jurors. 2. To do anything that may be necessary in regard to granting appeals and new trials. 3. It is said that it would be absurd that twelve ignorant men should have power to judge of the law, while justices learned in the law should be compelled to sit by and see the law decided erroneously. One answer to this objection is, that the powers of juries are not granted to them on the supposition that they know the law better than the justices; but on the ground that the justices are untrustworthy, that they are exposed to bribes, are themselves fond of power and authority, and are also the dependent and subservient creatures of the legislature; and that to allow them to dictate the law, would not only expose the rights of parties to be sold for money, but would be equivalent to surrendering all the property, liberty, and rights of the people, unreservedly into the hands of arbitrary power, (the legislature,) to be disposed of at its pleasure. The powers of juries, therefore, not only place a curb upon the powers of legislators and judges, but imply also an imputation upon their integrity and trustworthiness; and _these_ are the reasons why legislators and judges have formerly entertained the intensest hatred of juries, and, so fast as they could do it without alarming the people for their liberties, have, by indirection, denied, undermined, and practically destroyed their power. And it is only since all the real power of juries has been destroyed, and they have become mere tools in the hands of legislators and judges, that they have become favorites with them. Legislators and judges are necessarily exposed to all the temptations of money, fame, and power, to induce them to disregard justice between parties, and sell the rights, and violate the liberties of the people. Jurors, on the other hand, are exposed to none of these temptations. They are not liable to bribery, for they are unknown to the parties until they come into the jury-box. They can rarely gain either fame, power, or money, by giving erroneous decisions. Their offices are temporary, and they know that when they shall have executed them, they must return to the people, to hold all their own rights in life subject to the liability of such judgments, by their successors, as they themselves have given an example for. The laws of human nature do not permit the supposition that twelve men, taken by lot from the mass of the people, and acting under such circumstances, will _all_ prove dishonest. It is a supposable case that they may not be sufficiently enlightened to know and do their whole duty, in all cases whatsoever; but that they should _all_ prove _dishonest_, is not within the range of probability. A jury, therefore, insures to us--what no other court does--that first and indispensable requisite in a judicial tribunal, integrity. 4. It is alleged that if juries are allowed to judge of the law, _they decide the law absolutely; that their decision must necessarily stand, be it right or wrong_; and that this power of absolute decision would be dangerous in their hands, by reason of their ignorance of the law. One answer is, that this power, which juries have of _judging_ of the law, is not a power of _absolute decision in all cases_. For example, it is a power to declare imperatively that a man's property, liberty, or life, shall _not_ be taken from him; but it is not a power to declare imperatively that they _shall_ be taken from him. Magna Carta does not provide that the judgments of the peers _shall be executed_; but only that _no other than their judgments_ shall ever be executed, _so far as to take a party's goods, rights, or person, thereon_. A judgment of the peers may be reviewed, and invalidated, and a new trial granted. So that practically a jury has no absolute power to take a party's goods, rights, or person. They have only an absolute veto upon their being taken by the government. The government is not bound to do everything that a jury may adjudge. It is only prohibited from doing anything--(that is, from taking a party's goods, rights, or person)--unless a jury have first adjudged it to be done. But it will, perhaps, be said, that if an erroneous judgment of one jury should be reaffirmed by another, on a new trial, it must _then_ be executed. But Magna Carta does not command even this--although it might, perhaps, have been reasonably safe for it to have done so--for if two juries unanimously affirm the same thing, after all the light and aid that judges and lawyers can afford them, that fact probably furnishes as strong a presumption in favor of the correctness of their opinion, as can ordinarily be obtained in favor of a judgment, by any measures of a practical character for the administration of justice. Still, there is nothing in Magna Carta that _compels_ the execution of even a second judgment of a jury. The only injunction of Magna Carta upon the government, as to what it _shall do_, on this point, is that it shall "do justice and right," without sale, denial, or delay. But this leaves the government all power of determining what is justice and right, except that it shall not consider anything as justice and right--so far as to carry it into execution against the goods, rights, or person of a party--unless it be something which a jury have sanctioned. If the government had no alternative but to execute all judgments of a jury indiscriminately, the power of juries would unquestionably be dangerous; for there is no doubt that they may sometimes give hasty and erroneous judgments. But when it is considered that their judgments can be reviewed, and new trials granted, this danger is, for all practical purposes, obviated. If it be said that juries may _successively_ give erroneous judgments, and that new trials cannot be granted indefinitely, the answer is, that so far as Magna Carta is concerned, there is nothing to prevent the granting of new trials indefinitely, if the judgments of juries are contrary to "justice and right." So that Magna Carta does not _require_ any judgment whatever to be executed--so far as to take a party's goods, rights, or person, thereon--unless it be concurred in by both court and jury. Nevertheless, we may, for the sake of the argument, suppose the existence of a _practical_, if not _legal_, necessity, for executing _some_ judgment or other, in cases where juries persist in disagreeing with the courts. In such cases, the principle of Magna Carta unquestionably is, that the uniform judgments of _successive_ juries shall prevail over the opinion of the court. And the reason of this principle is obvious, viz., that it is the will of the country, and not the will of the court, or the government, that must determine what laws shall be established and enforced; that the concurrent judgments of successive juries, given in opposition to all the reasoning which judges and lawyers can offer to the contrary, must necessarily be presumed to be a truer exposition of the will of the country, than are the opinions of the judges. But it may be said that, unless jurors submit to the control of the court, in matters of law, they may disagree among themselves, and _never_ come to any judgment; and thus justice fail to be done. Such a case is perhaps possible; but, if possible, it can occur but rarely; because, although one jury may disagree, a succession of juries are not likely to disagree--that is, _on matters of natural law, or abstract justice_.[74] If such a thing should occur, it would almost certainly be owing to the attempt of the court to mislead them. It is hardly possible that any other cause should be adequate to produce such an effect; because justice comes very near to being a self-evident principle. The mind perceives it almost intuitively. If, in addition to this, the court be uniformly on the side of justice, it is not a reasonable supposition that a succession of juries should disagree about it. If, therefore, a succession of juries do disagree on the law of any case, the presumption is, not that justice fails of being done, but that injustice is prevented--_that_ injustice, which would be done, if the opinion of the court were suffered to control the jury. For the sake of the argument, however, it may be admitted to be possible that justice should sometimes fail of being done through the disagreements of jurors, notwithstanding all the light which judges and lawyers can throw upon the question in issue. If it be asked what provision the trial by jury makes for such cases, the answer is, _it makes none; and justice must fail of being done, from the want of its being made sufficiently intelligible_. Under the trial by jury, justice can never be done--that is, by a judgment that shall take a party's goods, rights, or person--until that justice can be made intelligible or perceptible to the minds of _all_ the jurors; or, at least, until it obtain the voluntary assent of all--an assent, which ought not to be given until the justice itself shall have become perceptible to all. The principles of the trial by jury, then, are these: 1. That, in criminal cases, the accused is presumed innocent. 2. That, in civil cases, possession is presumptive proof of property; or, in other words, every man is presumed to be the rightful proprietor of whatever he has in his possession. 3. That these presumptions shall be overcome, in a court of justice, only by evidence, the sufficiency of which, and by law, the justice of which, are satisfactory to the understanding and consciences of _all_ the jurors. These are the bases on which the trial by jury places the property, liberty, and rights of every individual. But some one will say, if these are the principles of the trial by jury, then it is plain that justice must often fail to be done. Admitting, for the sake of the argument, that this may be true, the compensation for it is, that positive _injustice_ will also often fail to be done; whereas otherwise it would be done frequently. The very precautions used to prevent _injustice_ being done, may often have the effect to prevent _justice_ being done. But are we, therefore, to take no precautions against injustice? By no means, all will agree. The question then arises--Does the trial by jury, _as here explained_, involve such extreme and unnecessary precautions against injustice, as to interpose unnecessary obstacles to the doing of justice? Men of different minds may very likely answer this question differently, according as they have more or less confidence in the wisdom and justice of legislators, the integrity and independence of judges, and the intelligence of jurors. This much, however, may be said in favor of these precautions, viz., that the history of the past, as well as our constant present experience, prove how much injustice may, and certainly will, be done, systematically and continually, _for the want of these precautions_--that is, while the law is authoritatively made and expounded by legislators and judges. On the other hand, we have no such evidence of how much justice may fail to be done, _by reason of these precautions_--that is, by reason of the law being left to the judgments and consciences of jurors. We can determine the former point--that is, how much positive injustice is done under the first of these two systems--because the system is in full operation; but we cannot determine how much justice would fail to be done under the latter system, because we have, in modern times, had no experience of the use of the precautions themselves. In ancient times, when these precautions were _nominally_ in force, such was the tyranny of kings, and such the poverty, ignorance, and the inability of concert and resistance, on the part of the people, that the system had no full or fair operation. It, nevertheless, under all these disadvantages, impressed itself upon the understandings, and imbedded itself in the hearts, of the people, so as no other system of civil liberty has ever done. But this view of the two systems compares only the injustice done, and the justice omitted to be done, in the individual cases adjudged, without looking beyond them. And some persons might, on first thought, argue that, if justice failed of being done under the one system, oftener than positive injustice were done under the other, the balance was in favor of the latter system. But such a weighing of the two systems against each other gives no true idea of their comparative merits or demerits; for, possibly, in this view alone, the balance would not be very great in favor of either. To compare, or rather to contrast, the two, we must consider that, under the jury system, the failures to do justice would be only rare and exceptional cases; and would be owing either to the intrinsic difficulty of the questions, or to the fact that the parties had transacted their business in a manner unintelligible to the jury, and the effects would be confined to the individual or individuals interested in the particular suits. No permanent law would be established thereby destructive of the rights of the people in other like cases. And the people at large would continue to enjoy all their natural rights as before. But under the other system, whenever an unjust law is enacted by the legislature, and the judge imposes it upon the jury as authoritative, and they give a judgment in accordance therewith, the authority of the law is thereby established, and the whole people are thus brought under the yoke of that law; because they then understand that the law will be enforced against them in future, if they presume to exercise their rights, or refuse to comply with the exactions of the law. In this manner all unjust laws are established, and made operative against the rights of the people. The difference, then, between the two systems is this: Under the one system, a jury, at distant intervals, would (not enforce any positive injustice, but only) fail of enforcing justice, in a dark and difficult case, or in consequence of the parties not having transacted their business in a manner intelligible to a jury; and the plaintiff would thus fail of obtaining what was rightfully due him. And there the matter would end, _for evil_, though not for good; for thenceforth parties, warned of the danger of losing their rights, would be careful to transact their business in a more clear and intelligible manner. Under the other system--the system of legislative and judicial authority--positive injustice is not only done in every suit arising under unjust laws,--that is, men's property, liberty, or lives are not only unjustly taken on those particular judgments,--but the rights of the whole people are struck down by the authority of the laws thus enforced, and a wide-sweeping tyranny at once put in operation. But there is another ample and conclusive answer to the argument that justice would often fail to be done, if jurors were allowed to be governed by their own consciences, instead of the direction of the justices, in matters of law. That answer is this: Legitimate government can be formed only by the voluntary association of all who contribute to its support. As a voluntary association, it can have for its objects only those things in which the members of the association are _all agreed_. If, therefore, there be any _justice_, in regard to which all the parties to the government _are not agreed_, the objects of the association do not extend to it.[75] If any of the members wish more than this,--if they claim to have acquired a more extended knowledge of justice than is common to all, and wish to have their pretended discoveries carried into effect, in reference to themselves,--they must either form a separate association for that purpose, or be content to wait until they can make their views intelligible to the people at large. They cannot claim or expect that the whole people shall practise the folly of taking on trust their pretended superior knowledge, and of committing blindly into their hands all their own interests, liberties, and rights, to be disposed of on principles, the justness of which the people themselves cannot comprehend. A government of the whole, therefore, must necessarily confine itself to the administration of such principles of law as _all_ the people, who contribute to the support of the government, can comprehend and see the justice of. And it can be confined within those limits only by allowing the jurors, who represent all the parties to the compact, to judge of the law, and the justice of the law, in all cases whatsoever. And if any justice be left undone, under these circumstances, it is a justice for which the nature of the association does not provide, which the association does not undertake to do, and which, as an association, it is under no obligation to do. The people at large, the unlearned and common people, have certainly an indisputable right to associate for the establishment and maintenance of such a government as _they themselves_ see the justice of, and feel the need of, for the promotion of their own interests, and the safety of their own rights, without at the same time surrendering all their property, liberty, and rights into the hands of men, who, under the pretence of a superior and incomprehensible knowledge of justice, may dispose of such property, liberties, and rights, in a manner to suit their own selfish and dishonest purposes. If a government were to be established and supported _solely_ by that portion of the people who lay claim to superior knowledge, there would be some consistency in their saying that the common people should not be received as jurors, with power to judge of the justice of the laws. But so long as the whole people (or all the male adults) are presumed to be voluntary parties to the government, and voluntary contributors to its support, there is no consistency in refusing to any one of them more than to another the right to sit as juror, with full power to decide for himself whether any law that is proposed to be enforced in any particular case, be within the objects of the association. The conclusion, therefore, is, that, in a government formed by voluntary association, or on the _theory_ of voluntary association, and voluntary support, (as all the North American governments are,) no law can rightfully be enforced by the association in its corporate capacity, against the goods, rights, or person of any individual, except it be such as _all_ the members of the association agree that it may enforce. To enforce any other law, to the extent of taking a man's goods, rights, or person, would be making _some_ of the parties to the association accomplices in what they regard as acts of injustice. It would also be making them consent to what they regard as the destruction of their own rights. These are things which no legitimate system or theory of government can require of any of the parties to it. The mode adopted, by the trial by jury, for ascertaining whether all the parties to the government do approve of a particular law, is to take twelve men at random from the whole people, and accept their unanimous decision as representing the opinions of the whole. Even this mode is not theoretically accurate; for theoretical accuracy would require that every man, who was a party to the government, should individually give his consent to the enforcement of every law in every separate case. But such a thing would be impossible in practice. The consent of twelve men is therefore taken instead; with the privilege of appeal, and (in case of error found by the appeal court) a new trial, to guard against possible mistakes. This system, it is assumed, will ascertain the sense of the whole people--"the country"--with sufficient accuracy for all practical purposes, and with as much accuracy as is practicable without too great inconvenience and expense. 5. Another objection that will perhaps be made to allowing jurors to judge of the law, and the justice of the law, is, that the law would be uncertain. If, by this objection, it be meant that the law would be uncertain to the minds of the people at large, so that they would not know what the juries would sanction and what condemn, and would not therefore know practically what their own rights and liberties were under the law, the objection is thoroughly baseless and false. No system of law that was ever devised could be so entirely intelligible and certain to the minds of the people at large as this. Compared with it, the complicated systems of law that are compounded of the law of nature, of constitutional grants, of innumerable and incessantly changing legislative enactments, and of countless and contradictory judicial decisions, with no uniform principle of reason or justice running through them, are among the blindest of all the mazes in which unsophisticated minds were ever bewildered and lost. The uncertainty of the law under these systems has become a proverb. So great is this uncertainty, that nearly all men, learned as well as unlearned, shun the law as their enemy, instead of resorting to it for protection. They usually go into courts of justice, so called, only as men go into battle--when there is no alternative left for them. And even then they go into them as men go into dark labyrinths and caverns--with no knowledge of their own, but trusting wholly to their guides. Yet, less fortunate than other adventurers, they can have little confidence even in their guides, for the reason that the guides themselves know little of the mazes they are threading. They know the mode and place of entrance; but what they will meet with on their way, and what will be the time, mode, place, or condition of their exit; whether they will emerge into a prison, or not; whether _wholly_ naked and destitute, or not; whether with their reputations left to them, or not; and whether in time or eternity; experienced and honest guides rarely venture to predict. Was there ever such fatuity as that of a nation of men madly bent on building up such labyrinths as these, for no other purpose than that of exposing all their rights of reputation, property, liberty, and life, to the hazards of being lost in them, instead of being content to live in the light of the open day of their own understandings? What honest, unsophisticated man ever found himself involved in a lawsuit, that he did not desire, of all things, that his cause might be judged of on principles of natural justice, as those principles were understood by plain men like himself? He would then feel that he could foresee the result. These plain men are the men who pay the taxes, and support the government. Why should they not have such an administration of justice as they desire, and can understand? If the jurors were to judge of the law, and the justice of the law, there would be something like certainty in the administration of justice, and in the popular knowledge of the law, and men would govern themselves accordingly. There would be something like certainty, because every man has himself something like definite and clear opinions, and also knows something of the opinions of his neighbors, on matters of justice. And he would know that no statute, unless it were so clearly just as to command the unanimous assent of twelve men, who should be taken at random from the whole community, could be enforced so as to take from him his reputation, property, liberty, or life. What greater certainty can men require or need, as to the laws under which they are to live? If a statute were enacted by a legislature, a man, in order to know what was its true interpretation, whether it were constitutional, and whether it would be enforced, would not be under the necessity of waiting for years until some suit had arisen and been carried through all the stages of judicial proceeding, to a final decision. He would need only to use his own reason as to its meaning and its justice, and then talk with his neighbors on the same points. Unless he found them nearly unanimous in their interpretation and approbation of it, he would conclude that juries would not unite in enforcing it, and that it would consequently be a dead letter. And he would be safe in coming to this conclusion. There would be something like certainty in the administration of justice, and in the popular knowledge of the law, for the further reason that there would be little legislation, and men's rights would be left to stand almost solely upon the law of nature, or what was once called in England "the _common law_," (before so much legislation and usurpation had become incorporated into the common law,)--in other words, upon the principles of natural justice. Of the certainty of this law of nature, or the ancient English common law, I may be excused for repeating here what I have said on another occasion. "Natural law, so far from being uncertain, when compared with statutory and constitutional law, is the only thing that gives any certainty at all to a very large portion of our statutory and constitutional law. The reason is this. The words in which statutes and constitutions are written are susceptible of so many different meanings,--meanings widely different from, often directly opposite to, each other, in their bearing upon men's rights,--that, unless there were some rule of interpretation for determining which of these various and opposite meanings are the true ones, there could be no certainty at all as to the meaning of the statutes and constitutions themselves. Judges could make almost anything they should please out of them. Hence the necessity of a rule of interpretation. _And this rule is, that the language of statutes and constitutions shall be construed, as nearly as possible, consistently with natural law._ The rule assumes, what is true, that natural law is a thing certain in itself; also that it is capable of being learned. It assumes, furthermore, that it actually is understood by the legislators and judges who make and interpret the written law. Of necessity, therefore, it assumes further, that they (the legislators and judges) are _incompetent_ to make and interpret the _written_ law, unless they previously understand the natural law applicable to the same subject. It also assumes that the _people_ must understand the natural law, before they can understand the written law. It is a principle perfectly familiar to lawyers, and one that must be perfectly obvious to every other man that will reflect a moment, that, as a general rule, _no one can know what the written law is, until he knows what it ought to be_; that men are liable to be constantly misled by the various and conflicting senses of the same words, unless they perceive the true legal sense in which the words _ought to be taken_. And this true legal sense is the sense that is most nearly consistent with natural law of any that the words can be made to bear, consistently with the laws of language, and appropriately to the subjects to which they are applied. Though the words _contain_ the law, the _words_ themselves are not the law. Were the words themselves the law, each single written law would be liable to embrace many different laws, to wit, as many different laws as there were different senses, and different combinations of senses, in which each and all the words were capable of being taken. Take, for example, the Constitution of the United States. By adopting one or another sense of the single word "_free_," the whole instrument is changed. Yet the word _free_ is capable of some ten or twenty different senses. So that, by changing the sense of that single word, some ten or twenty different constitutions could be made out of the same written instrument. But there are, we will suppose, a thousand other words in the constitution, each of which is capable of from two to ten different senses. So that, by changing the sense of only a single word at a time, several thousands of different constitutions would be made. But this is not all. Variations could also be made by changing the senses of two or more words at a time, and these variations could be run through all the changes and combinations of senses that these thousand words are capable of. We see, then, that it is no more than a literal truth, that out of that single instrument, as it now stands, without altering the location of a single word, might be formed, by construction and interpretation, more different constitutions than figures can well estimate. But each written law, in order to be a law, must be taken only in some _one_ definite and distinct sense; and that definite and distinct sense must be selected from the almost infinite variety of senses which its words are capable of. How is this selection to be made? It can be only by the aid of that perception of natural law, or natural justice, which men naturally possess. Such, then, is the comparative certainty of the natural and the written law. Nearly all the certainty there is in the latter, so far as it relates to principles, is based upon, and derived from, the still greater certainty of the former. In fact, nearly all the uncertainty of the laws under which we live,--which are a mixture of natural and written laws,--arises from the difficulty of construing, or, rather, from the facility of misconstruing, the _written_ law; while natural law has nearly or quite the same certainty as mathematics. On this point, Sir William Jones, one of the most learned judges that have ever lived, learned in Asiatic as well as European law, says,--and the fact should be kept forever in mind, as one of the most important of all truths:--"_It is pleasing to remark the similarity, or, rather, the identity of those conclusions which pure, unbiassed reason, in all ages and nations, seldom fails to draw, in such juridical inquiries as are not fettered and manacled by positive institutions._"[76] In short, the simple fact that the written law must be interpreted by the natural, is, of itself, a sufficient confession of the superior certainty of the latter. The written law, then, even where it can be construed consistently with the natural, introduces labor and obscurity, instead of shutting them out. And this must always be the case, because words do not create ideas, but only recall them; and the same word may recall many different ideas. For this reason, nearly all abstract principles can be seen by the single mind more clearly than they can be expressed by words to another. This is owing to the imperfection of language, and the different senses, meanings, and shades of meaning, which different individuals attach to the same words, in the same circumstances.[77] Where the written law cannot be construed consistently with the natural, there is no reason why it should ever be enacted at all. It may, indeed, be sufficiently plain and certain to be easily understood; but its certainty and plainness are but a poor compensation for its injustice. Doubtless a law forbidding men to drink water, on pain of death, might be made so intelligible as to cut off all discussion as to its meaning; but would the intelligibleness of such a law be any equivalent for the right to drink water? The principle is the same in regard to all unjust laws. Few persons could reasonably feel compensated for the arbitrary destruction of their rights, by having the order for their destruction made known beforehand, in terms so distinct and unequivocal as to admit of neither mistake nor evasion. Yet this is all the compensation that such laws offer. Whether, therefore, written laws correspond with, or differ from, the natural, they are to be condemned. In the first case, they are useless repetitions, introducing labor and obscurity. In the latter case, they are positive violations of men's rights. There would be substantially the same reason in enacting mathematics by statute, that there is in enacting natural law. Whenever the natural law is sufficiently certain to all men's minds to justify its being enacted, it is sufficiently certain to need no enactment. On the other hand, until it be thus certain, there is danger of doing injustice by enacting it; it should, therefore, be left open to be discussed by anybody who may be disposed to question it, and to be judged of by the proper tribunal, the judiciary.[78] It is not necessary that legislators should enact natural law in order that it may be known to the _people_, because that would be presuming that the legislators already understand it better than the people,--a fact of which I am not aware that they have ever heretofore given any very satisfactory evidence. The same sources of knowledge on the subject are open to the people that are open to the legislators, and the people must be presumed to know it as well as they. The objections made to natural law, on the ground of obscurity, are wholly unfounded. It is true, it must be learned, like any other science; but it is equally true that it is very easily learned. Although as illimitable in its applications as the infinite relations of men to each other, it is, nevertheless, made up of simple elementary principles, of the truth and justice of which every ordinary mind has an almost intuitive perception. _It is the science of justice_,--and almost all men have the same perceptions of what constitutes justice, or of what justice requires, when they understand alike the facts from which their inferences are to be drawn. Men living in contact with each other, and having intercourse together, _cannot avoid_ learning natural law, to a very great extent, even if they would. The dealings of men with men, their separate possessions, and their individual wants, are continually forcing upon their minds the questions,--Is this act just? or is it unjust? Is this thing mine? or is it his? And these are questions of natural law; questions, which, in regard to the great mass of cases, are answered alike by the human mind everywhere. Children learn many principles of natural law at a very early age. For example: they learn that when one child has picked up an apple or a flower, it is his, and that his associates must not take it from him against his will. They also learn that if he voluntarily exchange his apple or flower with a playmate, for some other article of desire, he has thereby surrendered his right to it, and must not reclaim it. These are fundamental principles of natural law, which govern most of the greatest interests of individuals and society; yet children learn them earlier than they learn that three and three are six, or five and five, ten. Talk of enacting natural law by statute, that it may be known! It would hardly be extravagant to say, that, in nine cases in ten, men learn it before they have learned the language by which we describe it. Nevertheless, numerous treatises are written on it, as on other sciences. The decisions of courts, containing their opinions upon the almost endless variety of cases that have come before them, are reported; and these reports are condensed, codified, and digested, so as to give, in a small compass, the facts, and the opinions of the courts as to the law resulting from them. And these treatises, codes, and digests are open to be read of all men. And a man has the same excuse for being ignorant of arithmetic, or any other science, that he has for being ignorant of natural law. He can learn it as well, if he will, without its being enacted, as he could if it were. If our governments would but themselves adhere to natural law, there would be little occasion to complain of the ignorance of the people in regard to it. The popular ignorance of law is attributable mainly to the innovations that have been made upon natural law by legislation; whereby our system has become an incongruous mixture of natural and statute law, with no uniform principle pervading it. To learn such a system,--if system it can be called, and if learned it can be,--is a matter of very similar difficulty to what it would be to learn a system of mathematics, which should consist of the mathematics of nature, interspersed with such other mathematics as might be created by legislation, in violation of all the natural principles of numbers and quantities. But whether the difficulties of learning natural law be greater or less than here represented, they exist in the nature of things, and cannot be removed. Legislation, instead of removing, only increases them. This it does by innovating upon natural truths and principles, and introducing jargon and contradiction, in the place of order, analogy, consistency, and uniformity. Further than this; legislation does not even profess to remove the obscurity of natural law. That is no part of its object. It only professes to substitute something arbitrary in the place of natural law. Legislators generally have the sense to see that legislation will not make natural law any clearer than it is. Neither is it the object of legislation to establish the authority of natural law. Legislators have the sense to see that they can add nothing to the authority of natural law, and that it will stand on its own authority, unless they overturn it. The whole object of legislation, excepting that legislation which merely makes regulations, and provides instrumentalities for carrying other laws into effect, is to overturn natural law, and substitute for it the arbitrary will of power. In other words, the whole object of it is to destroy men's rights. At least, such is its only effect; and its designs must be inferred from its effect. Taking all the statutes in the country, there probably is not one in a hundred,--except the auxiliary ones just mentioned,--that does not violate natural law; that does not invade some right or other. Yet the advocates of arbitrary legislation are continually practising the fraud of pretending that unless the legislature _make_ the laws, the laws will not be known. The whole object of the fraud is to secure to the government the authority of making laws that never ought to be known." In addition to the authority already cited, of Sir William Jones, as to the certainty of natural law, and the uniformity of men's opinions in regard to it, I may add the following: "There is that great simplicity and plainness in the Common Law, that Lord Coke has gone so far as to assert, (and Lord Bacon nearly seconds him in observing,) that 'he never knew two questions arise merely upon common law; but that they were mostly owing to statutes ill-penned and overladen with provisos.'"--_3 Eunomus_, 157-8. If it still be said that juries would disagree, as to what was natural justice, and that one jury would decide one way, and another jury another; the answer is, that such a thing is hardly credible, as that twelve men, taken at random from the people at large, should _unanimously_ decide a question of natural justice one way, and that twelve other men, selected in the same manner, should _unanimously_ decide the same question the other way, _unless they were misled by the justices_. If, however, such things should sometimes happen, from any cause whatever, the remedy is by appeal, and new trial. [Footnote 73: Judges do not even live up to that part of their own maxim, which requires jurors to try the matter of fact. By dictating to them the laws of evidence,--that is, by dictating what evidence they may hear, and what they may not hear, and also by dictating to them rules for weighing such evidence as they permit them to hear,--they of necessity dictate the conclusion to which they shall arrive. And thus the court really tries the question of fact, as well as the question of law, in every cause. It is clearly impossible, in the nature of things, for a jury to try a question of fact, without trying every question of law on which the fact depends.] [Footnote 74: Most disagreements of juries are on matters of fact, which are admitted to be within their province. We have little or no evidence of their disagreements on matters of natural justice. The disagreements of _courts_ on matters of law, afford little or no evidence that juries would also disagree on matters of law--that is, _of justice_; because the disagreements of courts are generally on matters of _legislation_, and not on those principles of abstract justice, by which juries would be governed, and in regard to which the minds of men are nearly unanimous.] [Footnote 75: This is the principle of all voluntary associations whatsoever. No voluntary association was ever formed, and in the nature of things there never can be one formed, for the accomplishment of any objects except those in which all the parties to the association are agreed. Government, therefore, must be kept within these limits, or it is no longer a voluntary association of all who contribute to its support, but a mere tyranny established by a part over the rest. All, or nearly all, voluntary associations give to a majority, or to some other portion of the members less than the whole, the right to use some _limited_ discretion as to the means to be used to accomplish the ends in view; but _the ends themselves to be accomplished_ are always precisely defined, and are such as every member necessarily agrees to, else he would not voluntarily join the association. Justice is the object of government, and those who support the government, must be agreed as to the justice to be executed by it, or they cannot rightfully unite in maintaining the government itself.] [Footnote 76: Jones on Bailments, 133.] [Footnote 77: Kent, describing the difficulty of construing the written law, says: "Such is the imperfection of language, and the want of technical skill in the makers of the law, that statutes often give occasion to the most perplexing and distressing doubts and discussions, arising from the ambiguity that attends them. It requires great experience, as well as the command of a perspicuous diction, to frame a law in such clear and precise terms, as to secure it from ambiguous expressions, and from all doubts and criticisms upon its meaning."--_Kent_, 460. The following extract from a speech of Lord Brougham, in the House of Lords, confesses the same difficulty: "There was another subject, well worthy of the consideration of government during the recess,--the expediency, _or rather the absolute necessity_, of some arrangement for the preparation of bills, not merely private, but public bills, _in order that legislation might be consistent and systematic, and that the courts might not have so large a portion of their time occupied in endeavoring to construe acts of Parliament, in many cases unconstruable, and in most cases difficult to be construed_."--_Law Reporter_, 1848, p. 525.] [Footnote 78: This condemnation of written laws must, of course, be understood as applying only to cases where principles and rights are involved, and not as condemning any governmental arrangements, or instrumentalities, that are consistent with natural right, and which must be agreed upon for the purpose of carrying natural law into effect. These things may be varied, as expediency may dictate, so only that they be allowed to infringe no principle of justice. And they must, of course, be written, because they do not exist as fixed principles, or laws in nature.] CHAPTER VI. JURIES OF THE PRESENT DAY ILLEGAL. It may probably be safely asserted that there are, at this day, no legal juries, either in England or America. And if there are no legal juries, there is, of course, no legal trial, nor "judgment," by jury. In saying that there are probably no legal juries, I mean that there are probably no juries appointed in conformity with the principles of the _common law_. The term _jury_ is a technical one, derived from the common law; and when the American constitutions provide for the trial by jury, they provide for the _common law_ trial by jury; and not merely for any trial by jury that the government itself may chance to invent, and call by that name. It is the _thing_, and not merely the _name_, that is guarantied. Any legislation, therefore, that infringes any _essential principle_ of the _common law_, in the selection of jurors, is unconstitutional; and the juries selected in accordance with such legislation are, of course, illegal, and their judgments void. It will also be shown, in a subsequent chapter,[79] that since Magna Carta, the legislative power in England (whether king or parliament) has never had any constitutional authority to infringe, by legislation, any essential principle of the common law in the selection of jurors. All such legislation is as much unconstitutional and void, as though it abolished the trial by jury altogether. In reality it does abolish it. What, then, are the _essential principles_ of the common law, controlling the selection of jurors? They are two. 1. That _all_ the freemen, or adult male members of the state, shall be eligible as jurors.[80] Any legislation which requires the selection of jurors to be made from a less number of freemen than the whole, makes the jury selected an illegal one. If a part only of the freemen, or members of the state, are eligible as jurors, the jury no longer represent "the country," but only a part of "the country." If the selection of jurors can be restricted to any less number of freemen than the whole, it can be restricted to a very small proportion of the whole; and thus the government be taken out of the hands of "the country," or the whole people, and be thrown into the hands of a few. That, at common law, the whole body of freemen were eligible as jurors is sufficiently proved, not only by the reason of the thing, but by the following evidence: 1. Everybody must be presumed eligible, until the contrary be shown. We have no evidence, that I am aware of, of a prior date to Magna Carta, to _disprove_ that all freemen were eligible as jurors, unless it be the law of Ethelred, which requires that they be elderly[81] men. Since no specific age is given, it is probable, I think, that this statute meant nothing more than that they be more than twenty-one years old. If it meant anything more, it was probably contrary to the common law, and therefore void. 2. Since Magna Carta, we have evidence showing quite conclusively that all freemen, above the age of twenty-one years, were eligible as jurors. The _Mirror of Justices_, (written within a century after Magna Carta,) in the section "_Of Judges_"--that is, _jurors_--says: "All those who are not forbidden by law may be judges (jurors). To women it is forbidden by law that they be judges; and thence it is, that feme coverts are exempted to do suit in inferior courts. On the other part, a villein cannot be a judge, by reason of the two estates, which are repugnants; persons attainted of false judgments cannot be judges, nor infants, nor any under the age of twenty-one years, nor infected persons, nor idiots, nor madmen, nor deaf, nor dumb, nor parties in the pleas, nor men excommunicated by the bishop, nor criminal persons. * * And those who are not of the Christian faith cannot be judges, nor those who are out of the king's allegiance."--_Mirror of Justices_, 59-60. In the section "_Of Inferior Courts_," it is said: "From the first assemblies came consistories, which we now call courts, and that in divers places, and in divers manners; whereof the sheriffs held one monthly, or every five weeks, according to the greatness or largeness of the shires. And these courts are called county courts, _where the judgment is by the suitors_, if there be no writ, and is by warrant of jurisdiction ordinary. The other inferior courts are the courts of every lord of the fee, to the likeness of the hundred courts. * * There are other inferior courts which the bailiffs hold in every hundred, from three weeks to three weeks, _by the suitors of the freeholders of the hundred. All the tenants within the fees are bounden to do their suit there_, and that not for the service of their persons, but for the service of their fees. But women, infants within the age of twenty-one years, deaf, dumb, idiots, those who are indicted or appealed of mortal felony, before they be acquitted, diseased persons, and excommunicated persons are exempted from doing suit."--_Mirror of Justices_, 50-51. In the section "_Of the Sheriff's Turns_," it is said: "The sheriffs by ancient ordinances hold several meetings twice in the year in every hundred; _where all the freeholders within the hundred_ are bound to appear for the service of their fees."--_Mirror of Justices_, 50. The following statute was passed by Edward I., seventy years after Magna Carta: "Forasmuch also as sheriffs, hundreders, and bailiffs of liberties, have used to grieve those which be placed under them, putting in assizes and juries men diseased and decrepit, and having continual or sudden disease; and men also that dwelled not in the country at the time of the summons; and summon also an unreasonable number of jurors, for to extort money from some of them, for letting them go in peace, and so the assizes and juries pass many times by poor men, and the rich abide at home by reason of their bribes; it is ordained that from henceforth in one assize no more shall be summoned than four and twenty; and old men above three score and ten years, being continually sick, or being diseased at the time of the summons, or not dwelling in that country, shall not be put in juries of petit assizes."--_St. 13 Edward I._, ch. 38. (1285.) Although this command to the sheriffs and other officers, not to summon, as jurors, those who, from age and disease, were physically incapable of performing the duties, may not, of itself, afford any absolute or legal implication, by which we can determine precisely who were, and who were not, eligible as jurors at common law, yet the exceptions here made nevertheless carry a seeming confession with them that, at common law, all male adults were eligible as jurors. But the main principle of the feudal system itself shows that _all_ the full and free adult male members of the state--that is, all who were free born, and had not lost their civil rights by crime, or otherwise--_must_, at common law, have been eligible as jurors. What was that principle? It was, that the state rested for support upon the land, and not upon taxation levied upon the people personally. The lands of the country were considered the property of the state, and were made to support the state _in this way_. A portion of them was set apart to the king, the rents of which went to pay his personal and official expenditures, not including the maintenance of armies, or the administration of justice. War and the administration of justice were provided for in the following manner. The freemen, or the freeborn adult male members of the state--who had not forfeited their political rights--were entitled to land _of right_, (until all the land was taken up,) on condition of their rendering certain military and civil services to the state. The military services consisted in serving personally as soldiers, or contributing an equivalent in horses, provisions, or other military supplies. The civil services consisted, among other things, in serving as jurors (and, it would appear, as witnesses) in the courts of justice. For these services they received no compensation other than the use of their lands. In this way the state was sustained; and the king had no power to levy additional burdens or taxes upon the people. The persons holding lands on these terms were called _freeholders_--in later times _freemen_--meaning free and full members of the state. Now, as the principle of the system was that the freeholders held their lands of the state, on the condition of rendering these military and civil services as _rents_ for their lands, the principle implies that _all_ the freeholders were liable to these rents, and were therefore eligible as jurors. Indeed, I do not know that it has ever been doubted that, at common law, _all_ the freeholders were eligible as jurors. If all had not been eligible, we unquestionably should have had abundant evidence of the exceptions. And if anybody, at this day, allege any exceptions, the burden will be on him to prove them. The presumption clearly is that _all_ were eligible. The first invasion, which I find made, by the English statutes, upon this common law principle, was made in 1285, seventy years after Magna Carta. It was then enacted as follows: "Nor shall any be put in assizes or juries, though they ought to be taken in their own shire, that hold a tenement of less than the value of _twenty shillings yearly_. And if such assizes and juries be taken out of the shire, no one shall be placed in them who holds a tenement of less value than forty shillings yearly at the least, except such as be witnesses in deeds or other writings, whose presence is necessary, so that they be able to travel."--_St. 13 Edward I._, ch. 38. (1285.) The next invasion of the common law, in this particular, was made in 1414, about two hundred years after Magna Carta, when it was enacted: "That no person shall be admitted to pass in any inquest upon trial of the death of a man, nor in any inquest betwixt party and party in plea real, nor in plea personal, whereof the debt or the damage declared amount to forty marks, if the same person have not lands or tenements of the yearly value of _forty shillings above all charges of the same_."--_2 Henry V._, st. 2, ch. 3. (1414.) Other statutes on this subject of the property qualifications of jurors, are given in the note.[82] From these statutes it will be seen that, since 1285, seventy years after Magna Carta, the common law right of all free British subjects to eligibility as jurors has been abolished, and the qualifications of jurors have been made a subject of arbitrary legislation. In other words, the government has usurped the authority of _selecting_ the jurors that were to sit in judgment upon its own acts. This is destroying the vital principle of the trial by jury itself, which is that the legislation of the government shall be subjected to the judgment of a tribunal, taken indiscriminately from the whole people, without any choice by the government, and over which the government can exercise no control. If the government can select the jurors, it will, of course, select those whom it supposes will be favorable to its enactments. And an exclusion of _any_ of the freemen from eligibility is a _selection_ of those not excluded. It will be seen, from the statutes cited, that the most absolute authority over the jury box--that is, over the right of the people to sit in juries--has been usurped by the government; that the qualifications of jurors have been repeatedly changed, and made to vary from a freehold of _ten shillings yearly_, to one of "_twenty pounds by the year at least above reprises_." They have also been made different, in the counties of Southampton, Surrey, and Sussex, from what they were in the other counties; different in Wales from what they were in England; and different in the city of London, and in the county of Middlesex, from what they were in any other part of the kingdom. But this is not all. The government has not only assumed arbitrarily to classify the people, on the basis of property, but it has even assumed to give to some of its judges entire and absolute personal discretion in the selection of the jurors to be impanelled in criminal cases, as the following statutes show. "Be it also ordained and enacted by the same authority, that all panels hereafter to be returned, which be not at the suit of any party, that shall be made and put in afore any justice of gaol delivery or justices of peace in their open sessions _to inquire for the king, shall hereafter be reformed by additions and taking out of names of persons by discretion of the same justices before whom such panel shall be returned; and the same justices shall hereafter command the sheriff, or his ministers in his absence, to put other persons in the same panel by their discretions; and that panel so hereafter to be made, to be good and lawful_. This act to endure only to the next Parliament."--_11 Henry VII._, ch. 24, sec. 6. (1495.) This act was continued in force by 1 Henry VIII., ch. 11, (1509,) to the end of the then next Parliament. It was reënacted, and made perpetual, by 3 Henry VIII., ch. 12. (1511.) _These acts gave unlimited authority to the king's justices to pack juries at their discretion; and abolished the last vestige of the common law right of the people to sit as jurors, and judge of their own liberties, in the courts to which the acts applied._ Yet, as matters of law, these statutes were no more clear violations of the common law, the fundamental and paramount "law of the land," than were those statutes which affixed the property qualifications before named; because, if the king, or the government, can select the jurors on the ground of property, it can select them on any other ground whatever. Any infringement or restriction of the common law right of the whole body of the freemen of the kingdom to eligibility as jurors, was legally an abolition of the trial by jury itself. The juries no longer represented "the country," but only a part of the country; that part, too, on whose favor the government chose to rely for the maintenance of its power, and which it therefore saw fit to select as being the most reliable instruments for its purposes of oppression towards the rest. And the selection was made on the same principle, on which tyrannical governments generally select their supporters, viz., that of conciliating those who would be most dangerous as enemies, and most powerful as friends--that is, the wealthy.[83] These restrictions, or indeed any one of them, of the right of eligibility as jurors, was, in principle, a complete abolition of the English constitution; or, at least, of its most vital and valuable part. It was, in principle, an assertion of a right, on the part of the government, to _select_ the individuals who were to determine the authority of its own laws, and the extent of its own powers. It was, therefore, _in effect_, the assertion of a right, on the part of the government itself, to determine its own powers, and the authority of its own legislation, over the people; and a denial of all right, on the part of the people, to judge of or determine their own liberties against the government. It was, therefore, in reality, a declaration of entire absolutism on the part of the government. It was an act as purely despotic, _in principle_, as would have been the express abolition of all juries whatsoever. By "the law of the land," which the kings were sworn to maintain, every free adult male British subject was eligible to the jury box, with full power to exercise his own judgment as to the authority and obligation of every statute of the king, which might come before him. But the principle of these statutes (fixing the qualifications of jurors) is, that nobody is to sit in judgment upon the acts or legislation of the king, or the government, except those whom the government itself shall select for that purpose. A more complete subversion of the essential principles of the English constitution could not be devised. The juries of England are illegal for another reason, viz., that the statutes cited require the jurors (except in London and a few other places) to be _freeholders_. All the other free British subjects are excluded; whereas, at common law, all such subjects are eligible to sit in juries, whether they be freeholders or not. It is true, the ancient common law required the jurors to be freeholders; but the term _freeholder_ no longer expresses the same idea that it did in the ancient common law; because no land is now holden in England on the same principle, or by the same tenure, as that on which all the land was held in the early times of the common law. As has heretofore been mentioned, in the early times of the common law the land was considered the property of the state; and was all holden by the _tenants_, so called, (that is, _holders_,) on the condition of their rendering certain military and civil services to the state, (or to the king as the representative of the state,) under the name of _rents_. Those who held lands on these terms were called free _tenants_, that is, _free holders_--meaning free persons, or members of the state, holding lands--to distinguish them from villeins, or serfs, who were not members of the state, but held their lands by a more servile tenure, and also to distinguish them from persons of foreign birth, outlaws, and all other persons, who were not members of the state. Every freeborn adult male Englishman (who had not lost his civil rights by crime or otherwise) was entitled to land of _right_; that is, by virtue of his civil freedom, or membership of the body politic. Every member of the state was therefore a freeholder; and every freeholder was a member of the state. And the members of the state were therefore called freeholders. But what is material to be observed, is, that a man's right to land was an incident to his _civil freedom_; not his civil freedom an incident to his right to land. He was a freeholder because he was a _freeborn_ member of the state; and not a freeborn member of the state because he was a freeholder; for this last would be an absurdity. As the tenures of lands changed, the term _freeholder_ lost its original significance, and no longer described a man who held land of the state by virtue of his civil freedom, but only one who held it in fee-simple--that is, free of any liability to military or civil services. But the government, in fixing the qualifications of jurors, has adhered to the term _freeholder_ after that term has ceased to express the _thing_ originally designated by it. The principle, then, of the common law, was, that every freeman, or freeborn male Englishman, of adult age, &c., was eligible to sit in juries, by virtue of his civil freedom, or his being a member of the state, or body politic. But the principle of the present English statutes is, that a man shall have a right to sit in juries because he owns lands in fee-simple. At the common law a man was _born_ to the right to sit in juries. By the present statutes he _buys_ that right when he buys his land. And thus this, the greatest of all the political rights of an Englishman, has become a mere article of merchandise; a thing that is bought and sold in the market for what it will bring. Of course, there can be no legality in such juries as these; but only in juries to which every free or natural born adult male Englishman is eligible. The second essential principle of the common law, controlling the selection of jurors, is, that when the selection of the actual jurors comes to be made, (from the whole body of male adults,) that selection shall be made in some mode that excludes the possibility of choice _on the part of the government_. Of course, this principle forbids the selection to be made _by any officer of the government_. There seem to have been at least three modes of selecting the jurors, at the common law. 1. By lot.[84] 2. Two knights, or other freeholders, were appointed, (probably by the sheriff,) to select the jurors. 3. By the sheriff, bailiff, or other person, who held the court, or rather acted as its ministerial officer. Probably the latter mode may have been the most common, although there may be some doubt on this point. At the common law the sheriffs, bailiffs, and other officers _were chosen by the people, instead of being appointed by the king_. (_4 Blackstone_, 413. _Introduction to Gilbert's History of the Common Pleas_, p. 2, _note_, and p. 4.) This has been shown in a former chapter.[85] At common law, therefore, jurors selected by these officers were legally selected, so far as the principle now under discussion is concerned; that is, they were not selected by any officer who was dependent on the government. But in the year 1315, one hundred years after Magna Carta, the choice of sheriffs was taken from the people, and it was enacted: "That the sheriffs shall henceforth be assigned by the chancellor, treasurer, barons of the exchequer, and by the justices. And in the absence of the chancellor, by the treasurer, barons and justices."--_9 Edward II._, st. 2. (1315.) These officers, who appointed the sheriffs, were themselves appointed by the king, and held their offices during his pleasure. Their appointment of sheriffs was, therefore, equivalent to an appointment by the king himself. And the sheriffs, thus appointed, held their offices only during the pleasure of the king, and were of course mere tools of the king; and their selection of jurors was really a selection by the king himself. In this manner the king usurped the selection of the jurors who were to sit in judgment upon his own laws. Here, then, was another usurpation, by which the common law trial by jury was destroyed, so far as related to the county courts, in which the sheriffs presided, and which were the most important courts of the kingdom. From this cause alone, if there were no other, there has not been a legal jury in a _county_ court in England, for more than five hundred years. In nearly or quite all the States of the United States the juries are illegal, for one or the other of the same reasons that make the juries in England illegal. In order that the juries in the United States may be legal--that is, in accordance with the principles of the common law--it is necessary that every adult male member of the state should have his name in the jury box, or be eligible as a juror. Yet this is the case in hardly a single state. In New Jersey, Maryland, North Carolina, Tennessee, and Mississippi, the jurors are required to be _freeholders_. But this requirement is illegal, for the reason that the term _freeholder_, in this country, has no meaning analogous to the meaning it had in the ancient common law. In Arkansas, Missouri, Indiana, and Alabama, jurors are required to be "freeholders or householders." Each of these requirements is illegal. In Florida, they are required to be "householders." In Connecticut, Maine, Ohio, and Georgia, jurors are required to have the qualifications of "electors." In Virginia, they are required to have a property qualification of one hundred dollars. In Maine, Massachusetts, Vermont, Connecticut, New York, Ohio, Indiana, Michigan, and Wisconsin, certain civil authorities of the towns, cities, and counties are authorized to select, once in one, two, or three years, a certain number of the people--a small number compared with the whole--from whom jurors are to be taken when wanted; thus disfranchising all except the few thus selected. In Maine and Vermont, the inhabitants, by vote in town meeting, have a veto upon the jurors selected by the authorities of the town. In Massachusetts, the inhabitants, by vote in town meeting, can strike out any names inserted by the authorities, and insert others; thus making jurors elective by the people, and, of course, representatives only of a majority of the people. In Illinois, the jurors are selected, for each term of court, by the county commissioners. In North Carolina, "_the courts of pleas and quarter sessions_ * * shall select the names of such persons only as are freeholders, and as are well qualified to act as jurors, &c.; thus giving the courts power to pack the juries."--(_Revised Statutes_, 147.) In Arkansas, too, "It shall be the duty of the _county court_ of each county * * to make out and cause to be delivered to the sheriff a list of not less than sixteen, nor more than twenty-three persons, qualified to serve as _grand_ jurors;" and the sheriff is to summon such persons to serve as _grand_ jurors. In Tennessee, also, the jurors are to be selected by the _county courts_. In Georgia, the jurors are to be selected by "the justices of the inferior courts of each county, together with the sheriff and clerk, or a majority of them." In Alabama, "the sheriff, judge of the county court, and clerks of the circuit and county courts," or "a majority of" them, select the jurors. In Virginia, the jurors are selected by the sheriffs; but the sheriffs are appointed by the governor of the state, and that is enough to make the juries illegal. Probably the same objection lies against the legality of the juries in some other states. How jurors are appointed, and what are their qualifications, in New Hampshire, Rhode Island, Pennsylvania, Delaware, South Carolina, Kentucky, Iowa, Texas, and California, I know not. There is little doubt that there is some valid objection to them, of the kinds already suggested, in all these states. In regard to jurors in the courts of the United States, it is enacted, by act of Congress: "That jurors to serve in the courts of the United States, in each state respectively, shall have the like qualifications, and be entitled to the like exemptions, as jurors of the highest court of law of such state now have and are entitled to, and shall hereafter, from time to time, have and be entitled to, and shall be designated by ballot, lot, or otherwise, according to the mode of forming such juries now practised and hereafter to be practised therein, in so far as such mode may be practicable by the courts of the United States, or the officers thereof; and for this purpose, the said courts shall have power to make all necessary rules and regulations for conforming the designation and empanelling of jurors, in substance, to the laws and usages now in force in such state; and, further, shall have power, by rule or order, from time to time, to conform the same to any change in these respects which may be hereafter adopted by the legislatures of the respective states for the state courts."--_St._ 1840, ch. 47, _Statutes at Large_, vol. 5, p. 394. In this corrupt and lawless manner, Congress, instead of taking care to preserve the trial by jury, so far as they might, by providing for the appointment of legal juries--incomparably the most important of all our judicial tribunals, and the only ones on which the least reliance can be placed for the preservation of liberty--have given the selection of them over entirely to the control of an indefinite number of state legislatures, and thus authorized each state legislature to adapt the juries of the United States to the maintenance of any and every system of tyranny that may prevail in such state. Congress have as much constitutional right to give over all the functions of the United States government into the hands of the state legislatures, to be exercised within each state in such manner as the legislature of such state shall please to exercise them, as they have to thus give up to these legislatures the selection of juries for the courts of the United States. There has, probably, never been a legal jury, nor a legal trial by jury, in a single court of the United States, since the adoption of the constitution. These facts show how much reliance can be placed in written constitutions, to control the action of the government, and preserve the liberties of the people. If the real trial by jury had been preserved in the courts of the United States--that is, if we had had legal juries, and the jurors had known their rights--it is hardly probable that one tenth of the past legislation of Congress would ever have been enacted, or, at least, that, if enacted, it could have been enforced. Probably the best mode of appointing jurors would be this: Let the names of _all_ the adult male members of the state, in each township, be kept in a jury box, by the officers of the township; and when a court is to be held for a county or other district, let the officers of a sufficient number of townships be required (without seeing the names) to draw out a name from their boxes respectively, to be returned to the court as a juror. This mode of appointment would guard against collusion and selection; and juries so appointed would be likely to be a fair epitome of "the country." [Footnote 79: On the English Constitution.] [Footnote 80: Although all the freemen are legally eligible as jurors, any one may nevertheless be challenged and set aside, at the trial, for any special _personal_ disqualification; such as mental or physical inability to perform the duties; having been convicted, or being under charge, of crime; interest, bias, &c. But it is clear that the common law allows none of these points to be determined by the court, but only by "_triers_."] [Footnote 81: What was the precise meaning of the Saxon word, which I have here called _elderly_, I do not know. In the Latin translations it is rendered by _seniores_, which may perhaps mean simply those who have attained their majority.] [Footnote 82: In 1483 it was enacted, by a statute entitled "Of what credit and estate those jurors must be which shall be impanelled in the Sheriff's Turn." "That no bailiff nor other officer from henceforth return or impanel any such person in any shire of England, to be taken or put in or upon any inquiry in any of the said Turns, but such as be of good name and fame, and having lands and tenements of freehold within the same shires, to the yearly value of _twenty shillings_ at the least, or else lands and tenements holden by custom of manor, commonly called _copy-hold_, within the said shires, to the yearly value of twenty-six shillings eight pence over all charges at the least."--_1 Richard III._, ch. 4. (1483.) In 1486 it was enacted, "That the justices of the peace of every shire of this realm for the time being may take, by their discretion, an inquest, whereof every man shall have lands and tenements to the yearly value of _forty shillings_ at the least, to inquire of the concealments of others," &c., &c.--_3 Henry VII._, ch. 1 (1486.) A statute passed in 1494, in regard to jurors in the city of London, enacts: "That no person nor persons hereafter be impanelled, summoned, or sworn in any jury or inquest in courts within the same city, (of London,) except he be of lands, tenements, or goods and chattels, to the value of _forty marks_;[86] and that no person or persons hereafter be impanelled, summoned, nor sworn in any jury or inquest in any court within the said city, for lands or tenements, or action personal, wherein the debt or damage amounteth to the sum of forty marks, or above, except he be in lands, tenements, goods, or chattels, to the value of _one hundred marks_."--_11 Henry VII._, ch. 21. (1494.) The statute _4 Henry VIII._, ch. 3, sec. 4, (1512) requires jurors in London to have "_goods_ to the value of one hundred marks." In 1494 it was enacted that "It shall be lawful to every sheriff of the counties of _Southampton_, _Surrey_, _and Sussex_, to impanel and summons twenty-four lawful men of such, inhabiting within the precinct of his or their turns, as owe suit to the same turn, whereof every one hath lands or freehold to the yearly value of _ten_ shillings, or copy-hold lands to the yearly value of _thirteen shillings four pence_, above all charges within any of the said counties, or men of less livelihood, if there be not so many there, notwithstanding the statute of _1 Richard III._, ch. 4. To endure to the next parliament."--_11 Henry VII._, ch. 26. (1494.) This statute was continued in force by _19 Henry VII._, ch. 16. (1503.) In 1531 it was enacted, "That every person or persons, being the king's natural subject born, which either by the name of citizen, or of a freeman, or any other name, doth enjoy and use the liberties and privileges of any city, borough, or town corporate, where he dwelleth and maketh his abode, being worth in _movable goods and substance_ to the clear value of _forty pounds_, be henceforth admitted in trials of murders and felonies in every sessions and gaol delivery, to be kept and holden in and for the liberty of such cities, boroughs, and towns corporate, albeit they have no freehold; any act, statute, use, custom, or ordinance to the contrary hereof notwithstanding."--_23 Henry VIII._, ch. 13. (1531.) In 1585 it was enacted, "That in all cases where any jurors to be returned for trial of any issue or issues joined in any of the Queen's majesty's courts of King's Bench, Common Pleas, and the Exchequer, or before justices of assize, by the laws of this realm now in force, ought to have estate of freehold in lands, tenements, or hereditaments, of the clear yearly value of _forty shillings_, that in every such case the jurors that shall be returned from and after the end of this present session of parliament, shall every of them have estate of freehold in lands, tenements, or hereditaments, to the clear yearly value of _four pounds_ at the least."--_27 Elizabeth_, ch. 6. (1585.) In 1664-5 it was enacted, "That all jurors (other than strangers upon trials _per medietatem linguæ_) who are to be returned for the trials of issues joined in any of (his) majesty's courts of king's bench, common pleas, or the exchequer, or before justices of assize, or nisi prius, oyer and terminer, gaol delivery, or general or quarter sessions of the peace, from and after the twentieth day of April, which shall be in the year of our Lord one thousand six hundred and sixty-five, in any county of this realm of England, shall every of them thon have, in their own name, or in trust for them, within the same county, _twenty pounds by the year_, at least, above reprises, in their own or their wives' right, of freehold lands, or of ancient demesne, or of rents in fee, fee-tail, or for life. And that in every county within the dominion of Wales every such juror shall then have, within the same, _eight pounds by the year_, at the least, above reprises, in manner aforesaid. All which persons having such estate as aforesaid are hereby enabled and made liable to be returned and serve as jurors for the trial of issues before the justices aforesaid, any law or statute to the contrary in any wise notwithstanding."--_16 and 17 Charles II._, ch. 3. (1664-5.) By a statute passed in 1692, jurors in England are to have landed estates of the value of _ten pounds a year_; and jurors in Wales to have similar estates of the realm of _six pounds a year_.--_4 and 5 William and Mary_, ch. 24, sec. 14. (1692.) By the same statute, (sec. 18,) persons may be returned to serve upon the _tales_ in any county of England, who shall have, within the same county, _five pounds by the year_, above reprises, in the manner aforesaid. By _St_. 3 _George II_., ch. 25, sec. 19, 20, no one is to be a juror in London, who shall not be "an householder within the said city, and have lands, tenements, or personal estate, to the value of _one hundred pounds_." By another statute, applicable only to the county of _Middlesex_, it is enacted, "That all leaseholders, upon leases where the improved rents or value shall amount to _fifty pounds or upwards per annum_, over and above all ground rents or other reservations payable by virtue of the said leases, shall be liable and obliged to serve upon juries when they shall be legally summoned for that purpose."--_4 George II._, ch. 7, sec. 3. (1731.)] [Footnote 83: Suppose these statutes, instead of disfranchising all whose freeholds were of less than the standard value fixed by the statutes, had disfranchised all whose freeholds were of greater value than the same standard--would anybody ever have doubted that such legislation was inconsistent with the English constitution; or that it amounted to an entire abolition of the trial by jury? Certainly not. Yet it was as clearly inconsistent with the common law, or the English constitution, to disfranchise those whose freeholds fell below any arbitrary standard fixed by the government, as it would have been to disfranchise all whose freeholds rose above that standard.] [Footnote 84: _Lingard_ says: "These compurgators or jurors * * were sometimes * * _drawn by lot_."--_1 Lingard's History of England_, p. 300.] [Footnote 85: Chapter 4, p. 120, note.] [Footnote 86: A mark was thirteen shillings and four pence.] CHAPTER VII. ILLEGAL JUDGES. It is a principle of Magna Carta, and therefore of the trial by jury, (for all parts of Magna Carta must be construed together,) that no judge or other officer _appointed by the king_, shall preside in jury trials, _in criminal cases_, or "pleas of the crown." This provision is contained in the great charters of both John and Henry, and is second in importance only to the provision guaranteeing the trial by jury, of which it is really a part. Consequently, without the observance of this prohibition, there can be no genuine or _legal_--that is, _common law_--trial by jury. At the common law, all officers who held jury trials, whether in civil or criminal cases, were chosen by the people.[87] But previous to Magna Carta, the kings had adopted the practice of sending officers of their own appointment, called justices, into the counties, to hold jury trials in some cases; and Magna Carta authorizes this practice to be continued so far as it relates to _three_ kinds of _civil_ actions, to wit: "novel disseisin, mort de ancestor, and darrein presentment;"[88] but specially forbids its being extended to criminal cases, or pleas of the crown. This prohibition is in these words: "Nullus vicecomes, constabularius, coronator, _vel alii balivi nostri_, teneant placita coronæ nostræ." (No sheriff, constable, coroner, _or other our bailiffs_, shall hold pleas of our crown.)--_John's Charter_, ch. 53. _Henry's ditto_, ch. 17. Some persons seem to have supposed that this was a prohibition merely upon officers _bearing the specific names of_ "_sheriffs, constables, coroners and bailiffs_," to hold criminal trials. But such is not the meaning. If it were, the _name_ could be changed, and the _thing_ retained; and thus the prohibition be evaded. The prohibition applies (as will presently be seen) to all officers of the king whatsoever; and it sets up a distinction between officers _of the king_, ("_our_ bailiffs,") and officers chosen by the people. The prohibition upon the king's _justices_ sitting in criminal trials, is included in the words "_vel alii balivi nostri_," (or other our bailiffs.) The word _bailiff_ was anciently a sort of general name for _judicial officers_ and persons employed in and about the administration of justice. In modern times its use, as applied to the higher grades of judicial officers, has been superseded by other words; and it therefore now, more generally, if not universally, signifies an executive or police officer, _a servant of courts_, rather than one whose functions are purely judicial. The word is a French word, brought into England by the Normans. Coke says, "_Baylife_ is a French word, and signifies an officer concerned in the administration of justice of a certain province; and because a sheriff hath an office concerning the administration of justice within his county, or bailiwick, therefore he called his county _baliva sua_, (his bailiwick.) "I have heard great question made what the true exposition of this word _balivus_ is. In the statute of Magna Carta, cap. 28, the letter of that statute is, _nullus balivus de cætero ponat aliquem ad legem manifestam nec ad juramentum simplici loquela sua sine testibus fidelibus ad hoc inductis_." (No bailiff from henceforth shall put any one to his open law, nor to an oath (of self-exculpation) upon his own simple accusation, or complaint, without faithful witnesses brought in for the same.) "And some have said that _balivus_ in this statute signifieth _any judge_; for the law must be waged and made before the judge. And this statute (say they) extends to _the courts of common pleas_, _king's bench_, &c., for they must bring with them _fideles testes_, (faithful witnesses,) &c., _and so hath been the usage to this day_."--_1 Coke's Inst._, 168 b. Coke makes various references, in his margin to Bracton, Fleta, and other authorities, which I have not examined, but which, I presume, support the opinion expressed in this quotation. Coke also, in another place, under the head of the chapter just cited from Magna Carta, that "_no bailiff shall put any man to his open law_," &c., gives the following commentary upon it, from the _Mirror of Justices_, from which it appears that in the time of Edward I., (1272 to 1307,) this word _balivus_ was understood to include _all judicial_, as well as all other, officers of the king. The Mirror says: "The point which forbiddeth that no _bailiff_ put a freeman to his oath without suit, is to be understood in this manner,--_that no justice, no minister of the king_, nor other steward, nor bailiff, have power to make a freeman make oath, (of self-exculpation,) _without the king's command_,[89] nor receive any plaint, without witnesses present who testify the plaint to be true."--_Mirror of Justices_, ch. 5, sec. 2, p. 257. Coke quotes this commentary, (in the original French,) and then endorses it in these words: "By this it appeareth, that under this word _balivus_, in this act, is comprehended _every justice, minister of the king_, steward, and bailiff."--2 _Inst._, 44. Coke also, in his commentary upon this very chapter of Magna Carta, that provides that "_no sheriff, constable, coroner, or other our bailiffs, shall hold pleas of our crown_," expresses the opinion that it "_is a general law_," (that is, applicable to all officers of the king,) "by reason of the words _vel alii balivi nostri_, (or other our bailiffs,) _under which words are comprehended all judges or justices of any courts of justice_." And he cites a decision in the king's bench, in the 17th year of Edward I., (1289,) as authority; which decision he calls "a notable and leading judgment."--_2 Inst._, 30--1. And yet Coke, in flat contradiction of this decision, which he quotes with such emphasis and approbation, and in flat contradiction also of the definition he repeatedly gives of the word _balivus_, showing that it embraced _all ministers of the king whatsoever_, whether high or low, judicial or executive, fabricates an entirely gratuitous interpretation of this chapter of Magna Carta, and pretends that after all it only required that _felonies_ should be tried before the king's _justices, on account of their superior learning_; and that it permitted all lesser offences to be tried before inferior officers, (meaning of course the _king's_ inferior officers.)--_2 Inst._, 30. And thus this chapter of Magna Carta, which, according to his own definition of the word _balivus_, applies to all officers of the king; and which, according to the common and true definition of the term "pleas of the crown," applies to all criminal cases without distinction, and which, therefore, forbids any officer or minister of the king to preside in a jury trial in any criminal case whatsoever, he coolly and gratuitously interprets into a mere senseless provision for simply restricting the discretion of the king in giving _names_ to his own officers who should preside at the trials of particular offences; as if the king, who made and unmade all his officers by a word, could not defeat the whole object of the prohibition, by appointing such individuals as he pleased, to try such causes as he pleased, and calling them by such names as he pleased, _if he were but permitted to appoint and name such officers at all_; and as if it were of the least importance what _name_ an officer bore, whom the king might appoint to a particular duty.[90] Coke evidently gives this interpretation solely because, as he was giving a general commentary on Magna Carta, he was bound to give some interpretation or other to every chapter of it; and for this chapter he could invent, or fabricate, (for it is a sheer fabrication,) no interpretation better suited to his purpose than this. It seems never to have entered his mind, (or if it did, he intended that it should never enter the mind of anybody else,) that the object of the chapter could be to deprive the king of the power of putting his creatures into criminal courts, to pack, cheat, and browbeat juries, and thus maintain his authority by procuring the conviction of those who should transgress his laws, or incur his displeasure. This example of Coke tends to show how utterly blind, or how utterly corrupt, English judges, (dependent upon the crown and the legislature), have been in regard to everything in Magna Carta, that went to secure the liberties of the people, or limit the power of the government. Coke's interpretation of this chapter of Magna Carta is of a piece with his absurd and gratuitous interpretation of the words "_nec super eum ibimus, nec super eum mittemus_," which was pointed out in a former article, and by which he attempted to give a _judicial_ power to the king and his judges, where Magna Carta had given it only to a jury. It is also of a piece with his pretence that there was a difference between _fine_ and _amercement_, and that _fines_ might be imposed by the king, and that juries were required only for fixing _amercements_. These are some of the innumerable frauds by which the English people have been cheated out of the trial by jury. _Ex uno disce omnes._ From one judge learn the characters of all.[91] I give in the note additional and abundant authorities for the meaning ascribed to the word _bailiff_. The importance of the principle involved will be a sufficient excuse for such an accumulation of authorities as would otherwise be tedious and perhaps unnecessary.[92] The foregoing interpretation of the chapter of Magna Carta now under discussion, is corroborated by another chapter of Magna Carta, which specially provides that the king's justices shall "go through every county" to "take the assizes" (hold jury trials) in three kinds of _civil_ actions, to wit, "novel disseisin, mort de ancestor, and darrein presentment;" but makes no mention whatever of their holding jury trials in _criminal_ cases,--an omission wholly unlikely to be made, if it were designed they should attend the trial of such causes. Besides, the chapter here spoken of (in John's charter) does not allow these justices to sit _alone_ in jury trials, even in _civil_ actions; but provides that four knights, chosen by the county, shall sit with them to keep them honest. When the king's justices were known to be so corrupt and servile that the people would not even trust them to sit alone, in jury trials, in _civil_ actions, how preposterous is it to suppose that they would not only suffer them to sit, but to sit alone, in _criminal_ ones. It is entirely incredible that Magna Carta, which makes such careful provision in regard to the king's justices sitting in civil actions, should make no provision whatever as to their sitting in _criminal_ trials, if they were to be allowed to sit in them at all. Yet Magna Carta has no provision whatever on the subject.[93] But what would appear to make this matter absolutely certain is, that unless the prohibition that "no bailiff, &c., _of ours_ shall hold pleas of our crown," apply to all officers of the king, justices as well as others, it would be wholly nugatory for any practical or useful purpose, because the prohibition could be evaded by the king, at any time, by simply changing the titles of his officers. Instead of calling them "sheriffs, coroners, constables and bailiffs," he could call them "_justices_," or anything else he pleased; and this prohibition, so important to the liberty of the people, would then be entirely defeated. The king also could make and unmake "justices" at his pleasure; and if he could appoint any officers whatever to preside over juries in criminal trials, he could appoint any tool that he might at any time find adapted to his purpose. It was as easy to make justices of Jeffreys and Scroggs, as of any other material; and to have prohibited all the king's officers, _except his justices_, from presiding in criminal trials, would therefore have been mere fool's play. We can all perhaps form some idea, though few of us will be likely to form any adequate idea, of what a different thing the trial by jury would have been _in practice_, and of what would have been the difference to the liberties of England, for five hundred years last past, had this prohibition of Magna Carta, upon the king's officers sitting in the trial of criminal cases, been observed. The principle of this chapter of Magna Carta, as applicable to the governments of the United States of America, forbids that any officer appointed either by the executive or _legislative_ power, or dependent upon them for their salaries, or responsible to them by impeachment, should preside over a jury in criminal trials. To have the trial a legal (that is, a _common law_) and true trial by jury, the presiding officers must be chosen by the people, and be entirely free from all dependence upon, and all accountability to, the executive and legislative branches of the government.[94] [Footnote 87: The proofs of this principle of the common law have already been given on page 120, _note_. There is much confusion and contradiction among authors as to the manner in which sheriffs and other officers were appointed; some maintaining that they were appointed by the king, others that they were elected by the people. I imagine that both these opinions are correct, and that several of the king's officers bore the same official names as those chosen by the people; and that this is the cause of the confusion that has arisen on the subject. It seems to be a perfectly well established fact that, at common law, several magistrates, bearing the names of aldermen, sheriffs, stewards, coroners and bailiffs, were chosen by the people; and yet it appears, from Magna Carta itself, that some of the _king's_ officers (of whom he must have had many) were also called "sheriffs, constables, coroners, and bailiffs." But Magna Carta, in various instances, speaks of sheriffs and bailiffs as "_our_ sheriffs and bailiffs;" thus apparently intending to recognize the distinction between officers _of the king_, bearing those names, and other officers, bearing the same official names, but chosen by the people. Thus it says that "no sheriff or bailiff _of ours_, or any other (officer), shall take horses or carts of any freeman for carriage, unless with the consent of the freeman himself."--_John's Charter_, ch. 36. In a kingdom subdivided into so many counties, hundreds, tithings, manors, cities and boroughs, each having a judicial or police organization of its own, it is evident that many of the officers must have been chosen by the people, else the government could not have maintained its popular character. On the other hand, it is evident that the king, the executive power of the nation, must have had large numbers of officers of his own in every part of the kingdom. And it is perfectly natural that these different sets of officers should, in many instances, bear the same official names; and, consequently that the king, when speaking of his own officers, as distinguished from those chosen by the people, should call them "our sheriffs, bailiffs," &c., as he does in Magna Carta. I apprehend that inattention to these considerations has been the cause of all the confusion of ideas that has arisen on this subject,--a confusion very evident in the following paragraph from Dunham, which may be given as an illustration of that which is exhibited by others on the same points. "Subordinate to the ealdormen were the _gerefas_, the sheriffs, or reeves, _of whom there were several in every shire, or county_. _There was one in every borough, as a judge._ There was one at every gate, who witnessed purchases outside the walls; and there was one, higher than either,--the high sheriff,--who was probably the reeve of the shire. This last _appears_ to have been appointed by the king. Their functions were to execute the decrees of the king, or ealdormen, to arrest prisoners, to require bail for their appearance at the sessions, to collect fines or penalties levied by the court of the shire, to preserve the public peace, _and to preside in a subordinate tribunal of their own_."--_Dunham's Middle Ages_, sec. 2, B. 2, ch. 1. 57 _Lardner's Cab. Cyc._, p. 41. The confusion of _duties_ attributed to these officers indicates clearly enough that different officers, bearing, the same official names, must have had different duties, and have derived their authority from different sources,--to wit, the king, and the people.] [Footnote 88: _Darrein presentment_ was an inquest to discover who presented the last person to a church; _mort de ancestor_, whether the last possessor was seized of land in demesne of his own fee; and _novel disseisin_, whether the claimant had been unjustly disseized of his freehold.] [Footnote 89: He has no power to do it, _either with, or without, the king's command_. The prohibition is absolute, containing no such qualification as is here interpolated, viz., "_without the king's command_." If it could be done _with_ the king's command, the king would be invested with arbitrary power in the matter.] [Footnote 90: The absurdity of this doctrine of Coke is made more apparent by the fact that, at that time, the "justices" and other persons appointed by the king to hold courts were not only dependent upon the king for their offices, and removable at his pleasure, _but that the usual custom was, not to appoint them with any view to permanency, but only to give them special commissions for trying a single cause, or for holding a single term of a court, or for making a single circuit; which, being done, their commissions expired_. The king, therefore, could, _and undoubtedly did, appoint any individual he pleased, to try any cause he pleased, with a special view to the verdicts he desired to obtain in the particular cases_. This custom of commissioning particular persons to hold jury trials, in _criminal_ cases, (and probably also in _civil_ ones,) was of course a usurpation upon the common law, but had been practised more or less from the time of William the Conqueror. Palgrave says: "The frequent absence of William from his insular dominions occasioned another mode of administration, _which ultimately produced still greater changes in the law_. It was the practice of appointing justiciars to represent the king's person, to hold his court, to decide his pleas, to dispense justice on his behalf, to command the military levies, and to act as conservators of the peace in the king's name.[95] ... The justices who were assigned in the name of the sovereign, and whose powers were revocable at his pleasure, derived their authority merely from their grant.... Some of those judges were usually deputed for the purpose of relieving the king from the burden of his judicial functions.... The number as well as the variety of names of the justices appearing in the early chirographs of 'Concords,' leave reason for doubting whether, anterior to the reign of Henry III., (1216 to 1272,) _a court, whose members were changing at almost every session, can be said to have been permanently constituted. It seems more probable that the individuals who composed the tribunal were selected as suited the pleasure of the sovereign, and the convenience of the clerks and barons_; and the history of our legal administration will be much simplified, if we consider all those courts which were afterwards denominated the Exchequer, the King's Bench, the Common Pleas, and the Chancery, _as being originally committees, selected by the king when occasion required_, out of a large body, for the despatch of peculiar branches of business, _and which committees, by degrees, assumed an independent and permanent existence_.... Justices itinerant, who, despatched throughout the land, decided the 'Pleas of the Crown,' may be obscurely traced in the reign of the Conqueror; _not, perhaps, appointed with much regularity, but despatched upon peculiar occasions and emergencies_."--_1 Palgrave's Rise and Progress_, &c., p. 289 to 293. The following statute, passed in 1354, (139 years after Magna Carta,) shows that even after this usurpation of appointing "justices" of his own, to try criminal cases, had probably become somewhat established in practice, in defiance of Magna Carta, the king was in the habit of granting special commissions to still other persons, (especially to sheriffs,--_his_ sheriffs, no doubt,) to try particular cases: "Because that the people of the realm have suffered many evils and mischiefs, for that sheriffs of divers counties, by virtue of commissions and general writs granted to them at their own suit, for their singular profit to gain of the people, have made and taken divers inquests to cause to indict the people at their will, and have taken fine and ransom of them to their own use, and have delivered them; whereas such persons indicted were not brought before the king's justices to have their deliverance, it is accorded and established, for to eschew all such evils and mischiefs, that such commissions and writs before this time made shall be utterly repealed, and that from henceforth no such commissions shall be granted."--_St. 28 Edward III._, ch. 9, (1354.) How silly to suppose that the illegality of these commissions to try criminal cases, could have been avoided by simply granting them to persons under the title of "_justices_," instead of granting them to "_sheriffs_." The statute was evidently a cheat, or at least designed as such, inasmuch as it virtually asserts the right of the king to appoint his tools, under the name of "justices," to try criminal cases, while it _disavows_ his right to appoint them under the name of "sheriffs." Millar says: "When the king's bench came to have its usual residence at Westminster, the sovereign was induced to _grant special commissions, for trying particular crimes_, in such parts of the country as were found most convenient; and this practice was _gradually_ modelled into a regular appointment of certain commissioners, empowered, at stated seasons, to perform circuits over the kingdom, and to hold courts in particular towns, for the trial of all sorts of crimes. These judges of the circuit, however, _never obtained an ordinary jurisdiction, but continued, on every occasion, to derive their authority from two special commissions_: that of _oyer and terminer_, by which they were appointed to hear and determine all treasons, felonies and misdemeanors, within certain districts; and that of _gaol delivery_, by which they were directed to try every prisoner confined in the gaols of the several towns falling under their inspection."--_Millar's Hist. View of Eng. Gov._, vol. 2, ch. 7, p. 282. The following extract from Gilbert shows to what lengths of usurpation the kings would sometimes go, in their attempts to get the judicial power out of the hands of the people, and entrust it to instruments of their own choosing: "From the time of the _Saxons_," (that is, from the commencement of the reign of William the Conqueror,) "till the reign of Edward the first, (1272 to 1307,) the several county courts and sheriffs courts did decline in their interest and authority. The methods by which they were broken were two-fold. _First, by granting commissions to the sheriffs by writ of_ JUSTICIES, _whereby the sheriff had a particular jurisdiction granted him to be judge of a particular cause, independent of the suitors of the county court_," (that is, without a jury;) "_and these commissions were after the Norman form, by which (according to which) all power of judicature was immediately derived from the king_."--_Gilbert on the Court of Chancery_, p. 1. The several authorities now given show that it was the custom of the _Norman_ kings, not only to appoint persons to sit as judges in jury trials, in criminal cases, but that they also commissioned individuals to sit in singular and particular cases, as occasion required; and that they therefore readily _could_, and naturally _would_, and therefore undoubtedly _did_, commission individuals with a special view to their adaptation or capacity to procure such judgments as the kings desired. The extract from Gilbert suggests also the usurpation of the _Norman_ kings, in their assumption that _they_, (and _not the people_, as by the _common law_,) were the fountains of justice. It was only by virtue of this illegal assumption that they could claim to appoint their tools to hold courts. All these things show how perfectly lawless and arbitrary the kings were both before and after Magna Carta, and how necessary to liberty was the principle of Magna Carta and the common law, that no person appointed by the king should hold jury trials in criminal cases.] [Footnote 91: The opinions and decisions of judges and courts are undeserving of the least reliance, (beyond the intrinsic merit of the arguments offered to sustain them,) and are unworthy even to be quoted as evidence of the law, _when those opinions or decisions are favorable to the power of the government, or unfavorable to the liberties of the people_. The only reasons that their opinions, _when in favor of liberty_, are entitled to any confidence, are, first, that all presumptions of law are in favor of liberty; and, second, that the admissions of all men, the innocent and the criminal alike, _when made against their own interests_, are entitled to be received as true, because it is contrary to human nature for a man to confess anything but truth against himself. More solemn farces, or more gross impostures, were never practised upon mankind, than are all, or very nearly all, those oracular responses by which courts assume to determine that certain statutes, in restraint of individual liberty, are within the constitutional power of the government, and are therefore valid and binding upon the people. The reason why these courts are so intensely servile and corrupt, is, that they are not only parts of, but the veriest creatures of, the very governments whose oppressions they are thus seeking to uphold. They receive their offices and salaries from, and are impeachable and removable by, the very governments upon whose acts they affect to sit in judgment. Of course, no one with his eyes open ever places himself in a position so incompatible with the liberty of declaring his honest opinion, unless he do it with the intention of becoming a mere instrument in the hands of the government for the execution of all its oppressions. As proof of this, look at the judicial history of England for the last five hundred years, and of America from its settlement. In all that time (so far as I know, or presume) no bench of judges, (probably not even any single judge,) dependent upon the legislature that passed the statute, has ever declared a single _penal_ statute invalid, on account of its being in conflict either with the common law, which the judges in England have been sworn to preserve, or with the written constitutions, (recognizing men's natural rights,) which the American judges were under oath to maintain. Every oppression, every atrocity even, that has ever been enacted in either country, by the legislative power, in the shape of a criminal law, (or, indeed, in almost any other shape,) has been as sure of a sanction from the judiciary that was dependent upon, and impeachable by, the legislature that enacted the law, as if there were a physical necessity that the legislative enactment and the judicial sanction should go together. Practically speaking, the sum of their decisions, all and singular, has been, that there are no limits to the power of the government, and that the people have no rights except what the government pleases to allow to them. It is extreme folly for a people to allow such dependent, servile, and perjured creatures to sit either in civil or criminal trials; but to allow them to sit in criminal trials, and judge of the people's liberties, is not merely fatuity,--it is suicide.] [Footnote 92: Coke, speaking of the word _bailiffs_, as used in the statute of 1 _Westminster_, ch. 35, (1275,) says: "Here _bailiffs_ are taken for the _judges of the court_, as manifestly appeareth hereby."--2 _Inst._, 229. Coke also says, "It is a maxim in law, _aliquis non debet esse judex in propria causa_, (no one ought to be judge in his own cause;) and therefore a fine levied before the _baylifes of Salop_ was reversed, because one of the _baylifes_ was party to the fine, _quia non potest esse judex et pars_," (because one cannot be _judge_ and party.)--_1 Inst._, 141 a. In the statute of Gloucester, ch. 11 and 12, (1278,) "the mayor and _bailiffs_ of London (undoubtedly chosen by the people, or at any rate not appointed by the king) are manifestly spoken of as _judges_, or magistrates, holding _jury_ trials, as follows: _Ch. II._ "It is provided, also, that if any man lease his tenement in the city of London, for a term of years, and he to whom the freehold belongeth causeth himself to be impleaded by collusion, and maketh default after default, or cometh into court and giveth it up, for to make the termor (lessee) lose his term, (lease,) and the demandant hath his suit, so that the termor may recover by writ of covenant; _the mayor and bailiffs may inquire by a good inquest_, (_jury_,) in the presence of the termor and the demandant, whether the demandant moved his plea upon good right that he had, or by collusion, or fraud, to make the termor lose his term; and if it be found by the inquest (jury) that the demandant moved his plea upon good right that he had, the judgment shall be given forthwith; and if it be found by the inquest (jury) that he impleaded him (self) by fraud, to put the termor from his term, then shall the termor enjoy his term, and the execution of judgment for the demandant shall be suspended until the term be expired."--_6 Edward I._, ch. 11, (1278.) Coke, in his commentary on this chapter, calls this court of "the mayor and _bailiffs_" of London, "_the court of the hustings, the greatest and highest court in London;_" and adds, "other cities have the like court, and so called, as York, Lincoln, Winchester, &c. Here the city of London is named; but it appeareth by that which hath been said out of Fleta, that this act extends to such cities and boroughs privileged,--that is, such as have such privilege to hold plea as London hath."--_2 Inst._, 322. The 12th chapter of the same statute is in the following words, which plainly recognize the fact that "the mayor and _bailiffs_ of London" are judicial officers holding courts in London. "It is provided, also, that if a man, impleaded for a tenement in the same city, (London,) doth vouch a foreigner to warranty, that he shall come into the chancery, and have a writ to summon his warrantor at a certain day before the justices of the bench, _and another writ to the mayor and bailiffs of London, that they shall surcease_ (suspend proceedings) _in the matter that is before them by writ_, until the plea of the warrantee be determined before the justices of the bench; and when the plea at the bench shall be determined, then shall he that is vouched be commanded to go into the city," (that is, before "the mayor and _bailiffs'_" court,) "to answer unto the chief plea; and a writ shall be awarded at the suit of the demandant by the justices _unto the mayor and bailiffs, that they shall proceed in the plea_," &c.--_6 Edward I._, ch. 12, (1278.) Coke, in his commentary on this chapter, also speaks repeatedly of "the mayor and _bailiffs_" _as judges holding courts_; and also speaks of this chapter as applicable not only to "the citie of London, specially named for the cause aforesaid, but extended by equity to all other privileged places," (that is, privileged to have a court of "mayor and _bailiffs_,") "where foreign voucher is made, as to Chester, Durham, Salop," &c.--_2 Inst._, 325-7. BAILIE.--In Scotch law, a municipal magistrate, corresponding with the English _alderman_.[96]--_Burrill's Law Dictionary_. BAILIFFE.--_Baillif._ Fr. A bailiff: a ministerial officer with duties similar to those of a sheriff.... _The judge of a court._ A municipal magistrate, &c.--_Burrill's Law Dict._ BAILIFF.... The word _bailiff_ is of Norman origin, and was applied in England, at an early period, (after the example, it is said, of the French,) to the chief magistrates of counties, or shires, such as the alderman, the reeve, or sheriff, and also of inferior jurisdictions, such as hundreds and wapentakes.--_Spelman, voc. Balivus; 1 Bl. Com._, 344. _See Bailli_, _Ballivus_. The Latin _ballivus_ occurs, indeed, in the laws of Edward the Confessor, but Spelman thinks it was introduced by a later hand. _Balliva_ (bailiwick) was the word formed from _ballivus_, to denote the extent of territory comprised within a bailiff's jurisdiction; and _bailiwick_ is still retained in writs and other proceedings, as the name of a sheriff's county.--_1 Bl. Com._, 344. _See Balliva._ _The office of bailiff was at first strictly, though not exclusively, a judicial one._ In France, the word had the sense of what Spelman calls _justitia tutelaris_. _Ballivus_ occurs frequently in the _Regiam Majestatem_, in the sense of a _judge_.--_Spelman._ In its sense of a _deputy_, it was formerly applied, in England, to those officers who, by virtue of a deputation, either from the sheriff or the lords of private jurisdictions, exercised within the hundred, or whatever might be the limits of their bailiwick, certain _judicial_ and ministerial functions. With the disuse of private and local jurisdictions, the meaning of the term became commonly restricted to such persons as were deputed by the sheriff to assist him in the merely ministerial portion of his duty; such as the summoning of juries, and the execution of writs.--_Brande._ ... The word _bailiff_ is also applied in England to the chief magistrates of certain towns and jurisdictions, to the keepers of castles, forests and other places, and to the stewards or agents of lords of manors.--_Burrill's Law Dict._ "BAILIFF, (from the Lat. _ballivus_; Fr. _baillif_, i.e., _Præfectus provinciæ_,) signifies an officer appointed for the administration of justice within a certain district. The office, as well as the name, appears to have been derived from the French," &c.,--_Brewster's Encyclopedia._ Millar says, "The French monarchs, about this period, were not content with the power of receiving appeals from the several courts of their barons. An expedient was devised of sending royal _bailiffs_ into different parts of the kingdom, with a commission to take cognizance of all those causes in which the sovereign was interested, and in reality for the purpose of abridging and limiting the subordinate jurisdiction of the neighboring feudal superiors. By an edict of Phillip Augustus, in the year 1190, those _bailiffs_ were appointed in all the principal towns of the kingdom."--_Millar's Hist. View of the Eng. Gov._, vol. ii., ch. 3, p. 126. "BAILIFF-_office_.--Magistrates who formerly administered justice in the parliaments or courts of France, answering to the English sheriffs, as mentioned by Bracton."--_Bouvier's Law Dict._ "There be several officers called _bailiffs_, whose offices and employments seem quite different from each other.... The chief magistrate, in divers ancient corporations, are called _bailiffs_, as in Ipswich, Yarmouth, Colchester, &c. There are, likewise, officers of the forest, who are termed bailiffs."--_1 Bacon's Abridgment_, 498-9. "BAILIFF signifies a keeper or superintendent, and is directly derived from the French word _bailli_, which appears to come from the word _balivus_, and that from _bagalus_, a Latin word signifying generally a governor, tutor, or superintendent.... The French word _bailli_ is thus explained by Richelet, (_Dictionaire_, &c.:) _Bailli._--_He who in a province has the superintendence of justice, who is the ordinary judge of the nobles_, who is their head for the _ban_ and _arriere ban_,[97] and who maintains the right and property of others against those who attack them.... All the various officers who are called by this name, though differing as to the nature of their employments, seem to have some kind of superintendence intrusted to them by their superior."--_Political Dictionary._ "BAILIFF, _balivus_. From the French word _bayliff_, that is, _præfectus provinciæ_, and as the name, so the office itself was answerable to that of France, where there were eight parliaments, which were high courts from whence there lay no appeal, and within the precincts of the several parts of that kingdom which belonged to each parliament, _there were several provinces to which justice was administered by certain officers called bailiffs_; and in England we have several counties in which justice hath been, and still is, in small suits, administered to the inhabitants by the officer whom we now call _sheriff_, or _viscount_; (one of which names descends from the Saxons, the other from the Normans.) And, though the sheriff is not called _bailiff_, yet it was probable that was one of his names also, because the county is often called _balliva_; as in the return of a writ, where the person is not arrested, the sheriff saith, _infra-nominatus_, _A.B. non est inventus in balliva mea_, &c.; (the within named A.B. is not found in my bailiwick, &c.) And in the statute of Magna Carta, ch. 28, and 14 Ed. 3, ch. 9, the word _bailiff_ seems to comprise as well sheriffs, as bailiffs of hundreds. "_Bailies_, in Scotland, are magistrates of burghs, possessed of certain jurisdictions, having the same power within their territory as sheriffs in the county.... "As England is divided into counties, so every county is divided into hundreds; within which, in ancient times, the people had justice administered to them by the several officers of every hundred, which were the _bailiffs_. And it appears by Bracton, (_lib. 3, tract_. 2, ch. 34,) that _bailiffs_ of hundreds might anciently hold plea of appeal and approvers; but since that time the hundred courts, except certain franchises, are swallowed in the county courts; and now the _bailiff's_ name and office is grown into contempt, they being generally officers to serve writs, &c., within their liberties; though, in other respects, the name is still in good esteem, for the chief magistrates in divers towns are called _bailiffs_; and sometimes the persons to whom the king's castles are committed are termed _bailiffs_, as the _bailiff_ of Dover Castle, &c. "Of the ordinary _bailiffs_ there are several sorts, viz., _bailiffs_ of liberties; sheriffs' _bailiffs_; _bailiffs_ of lords of manors; _bailiffs_ of husbandry, &c.... "_Bailiffs_ of liberties or franchises are to be sworn to take distresses, truly impanel jurors, make returns by indenture between them and sheriffs, &c.... "_Bailiffs of courts baron_ summon those courts, and execute the process thereof.... "Besides these, there are also _bailiffs of the forest_ ..."--_Jacob's Law Dict. Tomlin's do._ "BAILIWICK, _balliva_,--is not only taken for the county, but signifies generally that liberty which is exempted from the sheriff of the county, over which the lord of the liberty appointeth a _bailiff_, with such powers within his precinct as an under-sheriff exerciseth under the sheriff of the county; such as the _bailiff_ of Westminster."--_Jacob's Law Dict. Tomlin's do._ "_A bailiff of a Leet, Court-baron, Manor, Balivus Letæ, Baronis, Manerii._--He is one that is appointed by the lord, or his steward, within every manor, to do such offices as appertain thereunto, as to summon the court, warn the tenants and resiants; also, to summon the Leet and Homage, levy fines, and make distresses, &c., of which you may read at large in _Kitchen's Court-leet and Court-baron_."--_A Law Dictionary, anonymous_, (_in Suffolk Law Library_.) "BAILIFF.--In England an officer appointed by the sheriff. Bailiffs are either special, and appointed, for their adroitness, to arrest persons; or bailiffs of hundreds, who collect fines, summon juries, attend the assizes, and execute writs and processes. _The sheriff in England is the king's bailiff...._ "_The office of bailiff formerly was high and honorable in England, and officers under that title on the continent are still invested with important functions._"--_Webster._ "BAILLI, (Scotland.)--An alderman; a magistrate who is second in rank in a royal burgh."--_Worcester._ "_Baili, or Bailiff._--(Sorte d'officier de justice.) A bailiff; a sort of magistrate."--_Boyer's French Dict._ "By some opinions, a _bailiff_, in Magna Carta, ch. 28, signifies _any judge_."--_Cunningham's Law Dict._ "BAILIFF.--In the court of the Greek emperors there was a grand _bajulos_, first tutor of the emperor's children. The superintendent of foreign merchants seems also to have been called _bajulos_; and, as he was appointed by the Venetians, this title (balio) was transferred to the Venetian ambassador. From Greece, the official _bajulos_ (_ballivus_, _bailli_, in France; _bailiff_, in England,) was introduced into the south of Europe, and denoted a superintendent; hence the eight _ballivi_ of the knights of St. John, which constitute its supreme council. In France, the royal bailiffs were commanders of the militia, administrators or stewards of the domains, _and judges of their districts_. In the course of time, only the first duty remained to the bailiff; hence he was _bailli d'épée_, _and laws were administered in his name by a lawyer, as his deputy, lieutenant de robe_. The seigniories, with which high courts were connected, employed bailiffs, who thus constituted, almost everywhere, _the lowest order of judges_. From the courts of the nobility, the appellation passed to the royal courts; from thence to the parliaments. In the greater bailiwicks of cities of importance, Henry II. established a collegial constitution under the name of _presidial courts_.... _The name of bailiff was introduced into England with William I._ The counties were also called _bailiwicks_, (_ballivæ_,) while the subdivisions were called _hundreds_; but, as the courts of the hundreds have long since ceased, the English bailiffs are only a kind of subordinate officers of justice, like the French _huissiers_. These correspond very nearly to the officers called _constables_ in the United States. Every sheriff has some of them under him, for whom he is answerable. In some cities the highest municipal officer yet bears this name, as the high bailiff of Westminster. In London, the Lord Mayor is at the same time bailiff, (which title he bore before the present became usual,) _and administers, in this quality, the criminal jurisdiction of the city, in the court of old Bailey_, where there are, annually, eight sittings of the court, for the city of London and the county of Middlesex. _Usually, the recorder of London supplies his place as judge._ In some instances the term _bailiff_, in England, is applied to the chief magistrates of towns, or to the commanders of particular castles, as that of Dover. The term _baillie_, in Scotland, is applied to a judicial police-officer, having powers very similar to those of justices of peace in the United States."--_Encyclopædia Americana._] [Footnote 93: Perhaps it may be said (and such, it has already been seen, is the opinion of Coke and others) that the chapter of Magna Carta, that "no _bailiff_ from henceforth shall put any man to his open law, (put him on trial,) nor to an oath (that is, an oath of self-exculpation) upon his (the bailiff's) own accusation or testimony, without credible witnesses brought in to prove the charge," _is itself_ a "provision in regard to the king's justices sitting in criminal trials," and therefore implies that _they are to sit_ in such trials. But, although the word _bailiff_ includes all _judicial_, as well as other, officers, and would therefore in this case apply to the king's justices, if they were to sit in criminal trials; yet this particular chapter of Magna Carta evidently does not contemplate "_bailiffs_" while acting in their _judicial_ capacity, (for they were not allowed to sit in criminal trials at all,) but only in the character of _witnesses_; and that the meaning of the chapter is, that the simple testimony (simplici loquela) of "no bailiff," (of whatever kind,) unsupported by other and "credible witnesses," shall be sufficient to put any man on trial, or to his oath of self-exculpation.[98] It will be noticed that the words of this chapter are _not_, "no bailiff _of ours_,"--that is, _of the king_,--as in some other chapters of Magna Carta; but simply "no bailiff," &c. The prohibition, therefore, applies to all "bailiffs,"--to those chosen by the people, as well as those appointed by the king. And the prohibition is obviously founded upon the idea (a very sound one in that age certainly, and probably also in this) that public officers (whether appointed by king or people) have generally, or at least frequently, too many interests and animosities against accused persons, to make it safe to convict any man on their testimony alone. The idea of Coke and others, that the object of this chapter was simply to forbid _magistrates_ to put a man on trial, when there were no witnesses against him, but only the simple accusation or testimony of the magistrates themselves, before whom he was to be tried, is preposterous; for that would be equivalent to supposing that magistrates acted in the triple character of judge, jury and witnesses, _in the same trial_; and that, therefore, _in such cases_, they needed to be prohibited from condemning a man on their own accusation or testimony alone. But such a provision would have been unnecessary and senseless, for two reasons; first, because the bailiffs or magistrates had no power to "hold pleas of the crown," still less to try or condemn a man; that power resting wholly with the juries; second, because if bailiffs or magistrates could try and condemn a man, without a jury, the prohibition upon their doing so upon their own accusation or testimony alone, would give no additional protection to the accused, so long as these same bailiffs or magistrates were allowed to decide what weight should be given, _both to their own testimony and that of other witnesses_; for, if they wished to convict, they would of course decide that any testimony, however frivolous or irrelevant, _in addition to their own_, was sufficient. Certainly a magistrate could always procure witnesses enough to testify to something or other, which _he himself_ could decide to be corroborative of his own testimony. And thus the prohibition would be defeated in fact, though observed in form.] [Footnote 94: In this chapter I have called the justices "_presiding_ officers," solely for the want of a better term. They are not "_presiding_ officers," in the sense of having any authority over the jury; but are only assistants to, and teachers and servants of, the jury. The foreman of the jury is properly the "presiding officer," so far as there is such an officer at all. The sheriff has no authority except over other persons than the jury.] [Footnote 95: In this extract, Palgrave seems to assume that the king himself had a right to sit as judge, in _jury_ trials, in the _county_ courts, in both civil and criminal cases. I apprehend he had no such power at the _common law_, but only to sit in the trial of appeals, and in the trial of peers, and of civil suits in which peers were parties, and possibly in the courts of ancient demesne.] [Footnote 96: _Alderman_ was a title anciently given to various _judicial_ officers, as the Alderman of all England, Alderman of the King, Alderman of the County, Alderman of the City or Borough, Alderman of the Hundred or Wapentake. These were all _judicial_ officers. See Law Dictionaries.] [Footnote 97: "_Ban and arriere ban_, a proclamation, whereby all that hold lands of the crown, (except some privileged officers and citizens,) are summoned to meet at a certain place in order to serve the king in his wars, either personally, or by proxy."--_Boyer._] [Footnote 98: At the common law, parties, in both civil and criminal cases, were allowed to swear in their own behalf; and it will be so again, if the true trial by jury should be reëstablished.] CHAPTER VIII. THE FREE ADMINISTRATION OF JUSTICE. The free administration of justice was a principle of the common law; and it must necessarily be a part of every system of government which is not designed to be an engine in the hands of the rich for the oppression of the poor. In saying that the free administration of justice was a principle of the common law, I mean only that parties were subjected to no costs for jurors, witnesses, writs, or other necessaries for the trial, _preliminary to the trial itself_. Consequently, no one could lose the benefit of a trial, for the want of means to defray expenses. _But after the trial_, the plaintiff or defendant was liable to be amerced, (by the jury, of course,) for having troubled the court with the prosecution or defence of an unjust suit.[99] But it is not likely that the losing party was subjected to an amercement as a matter of course, but only in those cases where the injustice of his cause was so evident as to make him inexcusable in bringing it before the courts. All the freeholders were required to attend the courts, that they might serve as jurors and witnesses, and do any other service that could legally be required of them; and their attendance was paid for by the state. In other words, their attendance and service at the courts were part of the rents which they paid the state for their lands. The freeholders, who were thus required always to attend the courts, were doubtless the only witnesses who were _usually_ required in _civil_ causes. This was owing to the fact that, in those days, when the people at large could neither write nor read, few contracts were put in writing. The expedient adopted for proving contracts, was that of making them in the presence of witnesses, who could afterwards testify to the transactions. Most contracts in regard to lands were made at the courts, in the presence of the freeholders there assembled.[100] In the king's courts it was specially provided by Magna Carta that "justice and right" should not be "sold;" that is, that the king should take nothing from the parties for administering justice. The oath of a party to the justice of his cause was all that was necessary to entitle him to the benefit of the courts free of all expense; (except the risk of being amerced after the trial, in case the jury should think he deserved it.[101]) _This principle of the free administration of justice connects itself necessarily with the trial by jury, because a jury could not rightfully give judgment against any man, in either a civil or criminal case, if they had any reason to suppose he had been unable to procure his witnesses._ The true trial by jury would also compel the free administration of justice from another necessity, viz., that of preventing private quarrels; because, unless the government enforced a man's rights and redressed his wrongs, _free of expense to him_, a jury would be bound to protect him in taking the law into his own hands. A man has a natural right to enforce his own rights and redress his own wrongs. If one man owe another a debt, and refuse to pay it, the creditor has a natural right to seize sufficient property of the debtor, wherever he can find it, to satisfy the debt. If one man commit a trespass upon the person, property or character of another, the injured party has a natural right, either to chastise the aggressor, or to take compensation for the injury out of his property. But as the government is an impartial party as between these individuals, it is more likely to do _exact_ justice between them than the injured individual himself would do. The government, also, having more power at its command, is likely to right a man's wrongs more peacefully than the injured party himself could do it. If, therefore, the government will do the work of enforcing a man's rights, and redressing his wrongs, _promptly, and free of expense to him_, he is under a moral obligation to leave the work in the hands of the government; but not otherwise. When the government forbids him to enforce his own rights or redress his own wrongs, and deprives him of all means of obtaining justice, except on the condition of his employing the government to obtain it for him, _and of paying the government for doing it_, the government becomes itself the protector and accomplice of the wrong-doer. If the government will forbid a man to protect his own rights, it is bound to do it for him, _free of expense to him_. And so long as government refuses to do this, juries, if they knew their duties, would protect a man in defending his own rights. Under the prevailing system, probably one half of the community are virtually deprived of all protection for their rights, except what the criminal law affords them. Courts of justice, for all civil suits, are as effectually shut against them, as though it were done by bolts and bars. Being forbidden to maintain their own rights by force,--as, for instance, to compel the payment of debts,--and being unable to pay the expenses of civil suits, they have no alternative but submission to many acts of injustice, against which the government is bound either to protect them, _free of expense_, or allow them to protect themselves. There would be the same reason in compelling a party to pay the judge and jury for their services, that there is in compelling him to pay the witnesses, or any other _necessary_ charges.[102] This compelling parties to pay the expenses of civil suits is one of the many cases in which government is false to the fundamental principles on which free government is based. What is the object of government, but to protect men's rights? On what principle does a man pay his taxes to the government, except on that of contributing his proportion towards the necessary cost of protecting the rights of all? Yet, when his own rights are actually invaded, the government, which he contributes to support, instead of fulfilling its implied contract, becomes his enemy, and not only refuses to protect his rights, (except at his own cost,) but even forbids him to do it himself. All free government is founded on the theory of voluntary association; and on the theory that all the parties to it _voluntarily_ pay their taxes for its support, on the condition of receiving protection in return. But the idea that any _poor_ man would voluntarily pay taxes to build up a government, which will neither protect his rights, (except at a cost which he cannot meet,) nor suffer himself to protect them by such means as may be in his power, is absurd. Under the prevailing system, a large portion of the lawsuits determined in courts, are mere contests of purses rather than of rights. And a jury, sworn to decide causes "according to the evidence" produced, are quite likely, _for aught they themselves can know_, to be deciding merely the comparative length of the parties' purses, rather than the intrinsic strength of their respective rights. Jurors ought to refuse to decide a cause at all, except upon the assurance that all the evidence, necessary to a full knowledge of the cause, is produced. This assurance they can seldom have, unless the government itself produces all the witnesses the parties desire. In criminal cases, the atrocity of accusing a man of crime, and then condemning him unless he prove his innocence at his own charges, is so evident that a jury could rarely, if ever, be justified in convicting a man under such circumstances. But the free administration of justice is not only indispensable to the maintenance of right between man and man; it would also promote simplicity and stability in the laws. The mania for legislation would be, in an important degree, restrained, if the government were compelled to pay the expenses of all the suits that grew out of it. The free administration of justice would diminish and nearly extinguish another great evil,--that of malicious _civil_ suits. It is an old saying, that "_multi litigant in foro, non ut aliquid lucrentur, sed ut vexant alios_." (Many litigate in court, not that they may gain anything, but that they may harass others.) Many men, from motives of revenge and oppression, are willing to spend their own money in prosecuting a groundless suit, if they can thereby compel their victims, who are less able than themselves to bear the loss, to spend money in the defence. Under the prevailing system, in which the parties pay the expenses of their suits, nothing but money is necessary to enable any malicious man to commence and prosecute a groundless suit, to the terror, injury, and perhaps ruin, of another man. In this way, a court of justice, into which none but a conscientious _plaintiff_ certainly should ever be allowed to enter, becomes an arena into which any rich and revengeful oppressor may drag any man poorer than himself, and harass, terrify, and impoverish him, to almost any extent. It is a scandal and an outrage, that government should suffer itself to be made an instrument, in this way, for the gratification of private malice. We might nearly as well have no courts of justice, as to throw them open, as we do, for such flagitious uses. Yet the evil probably admits of no remedy except a free administration of justice. Under a free system, plaintiffs could rarely be influenced by motives of this kind; because they could put their victim to little or no expense, _neither pending the suit_, (which it is the object of the oppressor to do,) nor at its termination. Besides, if the ancient common law practice should be adopted, of amercing a party for troubling the courts with groundless suits, the prosecutor himself would, in the end, be likely to be amerced by the jury, in such a manner as to make courts of justice a very unprofitable place for a man to go to seek revenge. In estimating the evils of this kind, resulting from the present system, we are to consider that they are not, by any means, confined to the actual suits in which this kind of oppression is practised; but we are to include all those cases in which the fear of such oppression is used as a weapon to compel men into a surrender of their rights. [Footnote 99: _2 Sullivan Lectures_, 234-5. _3 Blackstone_, 274-5, 376. Sullivan says that both plaintiffs and defendants were liable to amercement. Blackstone speaks of plaintiffs being liable, without saying whether defendants were so or not. What the rule really was I do not know. There would seem to be some reason in allowing defendants to defend themselves, _at their own charges_, without exposing themselves to amercement in case of failure.] [Footnote 100: When any other witnesses than freeholders were required in a civil suit, I am not aware of the manner in which their attendance was procured; but it was doubtless done at the expense either of the state or of the witnesses themselves. And it was doubtless the same in criminal cases.] [Footnote 101: "All claims were established in the first stage by the oath of the plaintiff, except when otherwise specially directed by the law. The oath, by which any claim was supported, was called the fore-oath, or 'Præjuramentum,' and it was the foundation of his suit. One of the cases which did not require this initiatory confirmation, was when cattle could be tracked into another man's land, and then the foot-mark stood for the fore-oath."--_2 Palgrave's Rise and Progress_, &c., 114.] [Footnote 102: Among the necessary expenses of suits, should be reckoned reasonable compensation to counsel, for they are nearly or quite as important to the administration of justice, as are judges, jurors, or witnesses; and the universal practice of employing them, both on the part of governments and of private persons, shows that their importance is generally understood. As a mere matter of economy, too, it would be wise for the government to pay them, rather than they should not be employed; because they collect and arrange the testimony and the law beforehand, so as to be able to present the whole case to the court and jury intelligibly, and in a short space of time. Whereas, if they were not employed, the court and jury would be under the necessity either of spending much more time than now in the investigation of causes, or of despatching them in haste, and with little regard to justice. They would be very likely to do the latter, thus defeating the whole object of the people in establishing courts. To prevent the abuse of this right, it should perhaps be left discretionary with the jury in each case to determine whether the counsel should receive any pay--and, if any, how much--from the government.] CHAPTER IX. THE CRIMINAL INTENT. It is a maxim of the common law that there can be no crime without a criminal intent. And it is a perfectly clear principle, although one which judges have in a great measure overthrown in practice, that _jurors_ are to judge of the moral intent of an accused person, and hold him guiltless, whatever his act, unless they find him to have acted with a criminal intent; that is, with a design to do what he knew to be criminal. This principle is clear, because the question for a jury to determine is, whether the accused be _guilty_, or _not guilty_. _Guilt_ is a personal quality of the actor,--not _necessarily_ involved in the act, but depending also upon the intent or motive with which the act was done. Consequently, the jury must find that he acted from a criminal motive, before they can declare him _guilty_. There is no moral justice in, nor any political necessity for, punishing a man for any act whatever that he may have committed, if he have done it without any criminal intent. There can be no _moral justice_ in punishing for such an act, because, there having been no _criminal motive_, there can have been no other motive which justice can take cognizance of, as demanding or justifying punishment. There can be no _political necessity_ for punishing, to warn against similar acts in future, because, if one man have injured another, however unintentionally, he is liable, and justly liable, to a _civil_ suit for damages; and in this suit he will be compelled to make compensation for the injury, notwithstanding his innocence of any intention to injure. He must bear the consequences of his own act, instead of throwing them upon another, however innocent he may have been of any intention to do wrong. And the damages he will have to pay will be a sufficient warning to him not to do the like act again. If it be alleged that there are crimes against the public, (as treason, for example, or any other resistance to government,) for which private persons can recover no damages, and that there is a political necessity for punishing for such offences, even though the party acted conscientiously, the answer is,--the government must bear with all resistance that is not so clearly wrong as to give evidence of criminal intent. In other words, the government, in all its acts, must keep itself so _clearly_ within the limits of justice, as that twelve men, taken at random, will all agree that it is in the right, or it must incur the risk of resistance, without any power to punish it. This is the mode in which the trial by jury operates to prevent the government from falling into the hands of a party, or a faction, and to keep it within such limits as _all_, or substantially _all_, the people are agreed that it may occupy. This necessity for a criminal intent, to justify conviction, is proved by the issue which the jury are to try, and the verdict they are to pronounce. The "issue" they are to try is, "_guilty_" or "_not guilty_." And those are the terms they are required to use in rendering their verdicts. But it is a plain falsehood to say that a man is "_guilty_," unless he have done an act which he knew to be criminal. This necessity for a criminal intent--in other words, for _guilt_--as a preliminary to conviction, makes it impossible that a man can be rightfully convicted for an act that is intrinsically innocent, though forbidden by the government; because guilt is an intrinsic quality of actions and motives, and not one that can be imparted to them by arbitrary legislation. All the efforts of the government, therefore, to "_make offences by statute_," out of acts that are not criminal by nature, must necessarily be ineffectual, unless a jury will declare a man "_guilty_" for an act that is really innocent. The corruption of judges, in their attempts to uphold the arbitrary authority of the government, by procuring the conviction of individuals for acts innocent in themselves, and forbidden only by some tyrannical statute, and the commission of which therefore indicates no criminal intent, is very apparent. To accomplish this object, they have in modern times held it to be unnecessary that indictments should charge, as by the common law they were required to do, that an act was done "_wickedly_," "_feloniously_," "_with malice aforethought_," or in any other manner that implied a criminal intent, without which there can be no criminality; but that it is sufficient to charge simply that it was done "_contrary to the form of the statute in such case made and provided_." This form of indictment proceeds plainly upon the assumption that the government is absolute, and that it has authority to prohibit any act it pleases, however innocent in its nature the act may be. Judges have been driven to the alternative of either sanctioning this new form of indictment, (which they never had any constitutional right to sanction,) or of seeing the authority of many of the statutes of the government fall to the ground; because the acts forbidden by the statutes were so plainly innocent in their nature, that even the government itself had not the face to allege that the commission of them implied or indicated any criminal intent. To get rid of the necessity of showing a criminal intent, and thereby further to enslave the people, by reducing them to the necessity of a blind, unreasoning submission to the arbitrary will of the government, and of a surrender of all right, on their own part, to judge what are their constitutional and natural rights and liberties, courts have invented another idea, which they have incorporated among the pretended _maxims_, upon which they act in criminal trials, viz., that "_ignorance of the law excuses no one_." As if it were in the nature of things possible that there could be an excuse more absolute and complete. What else than ignorance of the law is it that excuses persons under the years of discretion, and men of imbecile minds? What else than ignorance of the law is it that excuses judges themselves for all their erroneous decisions? Nothing. They are every day committing errors, which would be crimes, but for their ignorance of the law. And yet these same judges, who claim to be _learned_ in the law, and who yet could not hold their offices for a day, but for the allowance which the law makes for their ignorance, are continually asserting it to be a "maxim" that "ignorance of the law excuses no one;" (by which, of course, they really mean that it excuses no one but themselves; and especially that it excuses no _unlearned_ man, who comes before them charged with crime.) This preposterous doctrine, that "ignorance of the law excuses no one," is asserted by courts because it is an indispensable one to the maintenance of absolute power in the government. It is indispensable for this purpose, because, if it be once admitted that the people _have_ any rights and liberties which the government cannot lawfully take from them, then the question arises in regard to every statute of the government, whether it be law, or not; that is, whether it infringe, or not, the rights and liberties of the people. Of this question every man must of course judge according to the light in his own mind. And no man can be convicted unless the jury find, not only that the statute is _law_,--that it does _not_ infringe the rights and liberties of the people,--but also that it was so clearly law, so clearly consistent with the rights and liberties of the people, as that the individual himself, who transgressed it, _knew it to be so_, and therefore had no moral excuse for transgressing it. Governments see that if ignorance of the law were allowed to excuse a man for any act whatever, it must excuse him for transgressing all statutes whatsoever, which he himself thinks inconsistent with his rights and liberties. But such a doctrine would of course be inconsistent with the maintenance of arbitrary power by the government; and hence governments will not allow the plea, although they will not confess their true reasons for disallowing it. The only reasons, (if they deserve the name of reasons), that I ever knew given for the doctrine that ignorance of the law excuses no one, are these: 1. "The reason for the maxim is that of necessity. It prevails, 'not that all men know the law, but because it is an excuse which every man will make, and no man can tell how to confute him.'--_Selden_, (as quoted in the 2d edition of _Starkie on Slander_, Prelim. Disc., p. 140, note.)"--_Law Magazine_, (_London_,) vol. 27, p. 97. This reason impliedly admits that ignorance of the law is, _intrinsically_, an ample and sufficient excuse for a crime; and that the excuse ought to be allowed, if the fact of ignorance could but be ascertained. But it asserts that this fact is incapable of being ascertained, and that therefore there is a necessity for punishing the ignorant and the knowing--that is, the innocent and the guilty--without discrimination. This reason is worthy of the doctrine it is used to uphold; as if a plea of ignorance, any more than any other plea, must necessarily be believed simply because it is urged; and as if it were not a common and every-day practice of courts and juries, in both civil and criminal cases, to determine the mental capacity of individuals; as, for example, to determine whether they are of sufficient mental capacity to make reasonable contracts; whether they are lunatic; whether they are _compotes mentis_, "of sound mind and memory," &c. &c. And there is obviously no more difficulty in a jury's determining whether an accused person knew the law in a criminal case, than there is in determining any of these other questions that are continually determined in regard to a man's mental capacity. For the question to be settled by the jury is not whether the accused person knew the particular _penalty_ attached to his act, (for at common law no one knew what penalty a _jury_ would attach to an offence,) but whether he knew that his act was _intrinsically criminal_. If it were _intrinsically criminal_, it was criminal at common law. If it was not intrinsically criminal, it was not criminal at common law. (At least, such was the general principle of the common law. There may have been exceptions in practice, owing to the fact that the opinions of men, as to what was intrinsically criminal, may not have been in all cases correct.) A jury, then, in judging whether an accused person knew his act to be illegal, were bound first to use their own judgments, as to whether the act were _intrinsically_ criminal. If their own judgments told them the act was _intrinsically_ and _clearly_ criminal, they would naturally and reasonably infer that the accused also understood that it was intrinsically criminal, (and consequently illegal,) unless it should appear that he was either below themselves in the scale of intellect, or had had less opportunities of knowing what acts were criminal. In short, they would judge, from any and every means they might have of judging; and if they had any reasonable doubt that he knew his act to be criminal in itself, they would be bound to acquit him. The second reason that has been offered for the doctrine that ignorance of the law excuses no one, is this: "Ignorance of the municipal law of the kingdom, or of the penalty thereby inflicted on offenders, doth not excuse any that is of the age of discretion and compos mentis, from the penalty of the breach of it; because every person, of the age of discretion and compos mentis, _is bound to know the law_, and presumed to do so. _Ignorantia eorum, quæ quis scire tenetur non excusat_." (Ignorance of those things which every one is bound to know, does not excuse.)--_1 Hale's Pleas of the Crown_, 42. _Doctor and Student, Dialog. 2_, ch. 46. _Law Magazine_, (_London_,) vol. 27, p. 97. The sum of this reason is, that ignorance of the law excuses no one, (who is of the age of discretion and is compos mentis,) because every such person "_is bound to know the law_." But this is giving no reason at all for the doctrine, since saying that a man "is bound to know the law," is only saying, _in another form_, that "ignorance of the law does not excuse him." There is no difference at all in the two ideas. To say, therefore, that "ignorance of the law excuses no one, _because_ every one is bound to know the law," is only equivalent to saying that "ignorance of the law excuses no one, _because_ ignorance of the law excuses no one." It is merely reässerting the doctrine, without giving any reason at all. And yet these reasons, which are really no reasons at all, are the only ones, so far as I know, that have ever been offered for this absurd and brutal doctrine. The idea suggested, that "the age of discretion" determines the guilt of a person,--that there is a particular age, prior to which _all_ persons alike should be held incapable of knowing _any_ crime, and subsequent to which _all_ persons alike should be held capable of knowing _all_ crimes,--is another of this most ridiculous nest of ideas. All mankind acquire their knowledge of crimes, as they do of other things, _gradually_. Some they learn at an early age; others not till a later one. One individual acquires a knowledge of crimes, as he does of arithmetic, at an earlier age than others do. And to apply the same presumption to all, on the ground of age alone, is not only gross injustice, but gross folly. A universal presumption might, with nearly or quite as much reason, be founded upon weight, or height, as upon age.[103] This doctrine, that "ignorance of the law excuses no one," is constantly repeated in the form that "every one is bound to know the law." The doctrine is true in civil matters, especially in contracts, so far as this: that no man, who has the _ordinary_ capacity to make reasonable contracts, can escape the consequences of his own agreement, on the ground that he did not know the law applicable to it. When a man makes a contract, he gives the other party rights; and he must of necessity judge for himself, and take his own risk, as to what those rights are,--otherwise the contract would not be binding, and men could not make contracts that would convey rights to each other. Besides, the capacity to make reasonable contracts, _implies and includes_ a capacity to form a reasonable judgment as to the law applicable to them. But in _criminal_ matters, where the question is one of punishment, or not; where no second party has acquired any right to have the crime punished, unless it were committed with criminal intent, (but only to have it compensated for by damages in a civil suit;) and when the criminal intent is the only moral justification for the punishment, the principle does not apply, and a man is bound to know the law _only as well as he reasonably may_. The criminal law requires neither impossibilities nor extraordinaries of any one. It requires only thoughtfulness and a good conscience. It requires only that a man fairly and properly use the judgment he possesses, and the means he has of learning his duty. It requires of him only the same care to know his duty in regard to the law, that he is morally bound to use in other matters of equal importance. _And this care it does require of him._ Any ignorance of the law, therefore, that is unnecessary, or that arises from indifference or disregard of one's duty, is no excuse. An accused person, therefore, may be rightfully held responsible for such a knowledge of the law as is common to men in general, having no greater natural capacities than himself, and no greater opportunities for learning the law. And he can rightfully be held to no greater knowledge of the law than this. To hold him responsible for a greater knowledge of the law than is common to mankind, when other things are equal, would be gross injustice and cruelty. The mass of mankind can give but little of their attention to acquiring a knowledge of the law. Their other duties in life forbid it. Of course, they cannot investigate abstruse or difficult questions. All that can rightfully be required of each of them, then, is that he exercise such a candid and conscientious judgment as it is common for mankind generally to exercise in such matters. If he have done this, it would be monstrous to punish him criminally for his errors; errors not of conscience, but only of judgment. It would also be contrary to the first principles of a free government (that is, a government formed by voluntary association) to punish men in such cases, because it would be absurd to suppose that any man would voluntarily assist to establish or support a government that would punish himself for acts which he himself did not know to be crimes. But a man may reasonably unite with his fellow-men to maintain a government to punish those acts which he himself considers criminal, and may reasonably acquiesce in his own liability to be punished for such acts. As those are the only grounds on which any one can be supposed to render any voluntary support to a government, it follows that a government formed by voluntary association, and of course having no powers except such as _all_ the associates have consented that it may have, can have no power to punish a man for acts which he did not himself know to be criminal. The safety of society, which is the only object of the criminal law, requires only that those acts _which are understood by mankind at large to be intrinsically criminal_, should be punished as crimes. The remaining few (if there are any) may safely be left to go unpunished. Nor does the safety of society require that any individuals, other than those who have sufficient mental capacity to understand that their acts are criminal, should be criminally punished. All others may safely be left to their liability, under the _civil_ law, to compensate for their unintentional wrongs. The only real object of this absurd and atrocious doctrine, that "ignorance of the law (that is, of crime) excuses no one," and that "every one is bound to know the _criminal_ law," (that is, bound to know what is a crime,) is to maintain an entirely arbitrary authority on the part of the government, and to deny to the people all right to judge for themselves what their own rights and liberties are. In other words, the whole object of the doctrine is to deny to the people themselves all right to judge what statutes and other acts of the government are consistent or inconsistent with their own rights and liberties; and thus to reduce the people to the condition of mere slaves to a despotic power, such as the people themselves would never have voluntarily established, and the justice of whose laws the people themselves cannot understand. Under the true trial by jury all tyranny of this kind would be abolished. A jury would not only judge what acts were really criminal, but they would judge of the mental capacity of an accused person, and of his opportunities for understanding the true character of his conduct. In short, they would judge of his moral intent from all the circumstances of the case, and acquit him, if they had any reasonable doubt that he knew that he was committing a crime.[104] [Footnote 103: This presumption, founded upon age alone, is as absurd in civil matters as in criminal. What can be more entirely ludicrous than the idea that all men (not manifestly imbecile) become mentally competent to make all contracts whatsoever on the day they become twenty-one years of age?--and that, previous to that day, no man becomes competent to make any contract whatever, except for the present supply of the most obvious wants of nature? In reason, a man's _legal_ competency to make _binding_ contracts, in any and every case whatever, depends wholly upon his _mental_ capacity to make _reasonable_ contracts in each particular case. It of course requires more capacity to make a reasonable contract in some cases than in others. It requires, for example, more capacity to make a reasonable contract in the purchase of a large estate, than in the purchase of a pair of shoes. But the mental capacity to make a reasonable contract, in any particular case, is, in reason, the only legal criterion of the legal competency to make a binding contract in that case. The age, whether more or less than twenty-one years, is of no legal consequence whatever, except that it is entitled to some consideration as _evidence of capacity_. It may be mentioned, in this connection, that the rules that prevail, that every man is entitled to freedom from parental authority at twenty-one years of age, and no one before that age, are of the same class of absurdities with those that have been mentioned. The only ground on which a parent is ever entitled to exercise authority over his child, is that the child is incapable of taking reasonable care of himself. The child would be entitled to his freedom from his birth, if he were at that time capable of taking reasonable care of himself. Some become capable of taking care of themselves at an earlier age than others. And whenever any one becomes capable of taking reasonable care of himself, and not until then, he is entitled to his freedom, be his age more or less. These principles would prevail under the true trial by jury, the jury being the judges of the capacity of every individual whose capacity should be called in question.] [Footnote 104: In contrast to the doctrines of the text, it may be proper to present more distinctly the doctrines that are maintained by judges, and that prevail in courts of justice. Of course, no judge, either of the present day, or perhaps within the last five hundred years, has admitted the right of a jury to judge of the _justice_ of a law, or to hold any law invalid for its injustice. Every judge asserts the power of the government to punish for acts that are intrinsically innocent, and which therefore involve or evince no criminal intent. To accommodate the administration of law to this principle, all judges, so far as I am aware, hold it to be unnecessary that an indictment should charge, or that a jury should find, that an act was done with a criminal intent, except in those cases where the act is _malum in se_,--criminal in itself. In all other cases, so far as I am aware, they hold it sufficient that the indictment charge, and consequently that the jury find, simply that the act was done "contrary to the form of the statute in such case made and provided;" in other words, contrary to the orders of the government. All these doctrines prevail universally among judges, and are, I think, uniformly practised upon in courts of justice; and they plainly involve the most absolute despotism on the part of the government. But there is still another doctrine that extensively, and perhaps most generally, prevails in practice, although judges are not agreed in regard to its soundness. It is this: that it is not even necessary that the jury should see or know, _for themselves_, what the law _is_ that is charged to have been violated; nor to see or know, _for themselves_, that the act charged was in violation of any law whatever;--but that it is sufficient that they be simply _told by the judge_ that any act whatever, charged in an indictment, is in violation of law, and that they are then bound blindly to receive the declaration as true, and convict a man accordingly, if they find that he has done the act charged. This doctrine is adopted by many among the most eminent judges, and the reasons for it are thus given by Lord Mansfield: "They (the jury) do not know, and are not presumed to know, the law. They are not sworn to decide the law;[105] they are not required to do it.... The jury ought not to assume the jurisdiction of law. They do not know, and are not presumed to know, anything of the matter. They do not understand the language in which it is conceived, or the meaning of the terms. They have no rule to go by but their passions and wishes."--_3 Term Rep._, 428, note. What is this but saying that the people, who are supposed to be represented in juries, and who institute and support the government, (of course for the protection of their own rights and liberties, _as they understand them_, for plainly no other motive can be attributed to them,) are really the slaves of a despotic power, whose arbitrary commands even they are not supposed competent to understand, but for the transgression of which they are nevertheless to be punished as criminals? This is plainly the sum of the doctrine, because the jury are the peers (equals) of the accused, and are therefore supposed to know the law as well as he does, and as well as it is known by the people at large. If _they_ (the jury) are not presumed to know the law, neither the accused nor the people at large can be presumed to know it. Hence, it follows that one principle of the _true_ trial by jury is, that no accused person shall be held responsible for any other or greater knowledge of the law than is common to his political equals, who will generally be men of nearly similar condition in life. But the doctrine of Mansfield is, that the body of the people, from whom jurors are taken, are responsible to a law, _which it is agreed they cannot understand_. What is this but despotism?--and not merely despotism, but insult and oppression of the intensest kind? This doctrine of Mansfield is the doctrine of all who deny the right of juries to judge of the law, although all may not choose to express it in so blunt and unambiguous terms. But the doctrine evidently admits of no other interpretation or defence.] [Footnote 105: This declaration of Mansfield, that juries in England "are not sworn to decide the law" in criminal cases, is a plain falsehood. They are sworn to try the whole case at issue between the king and the prisoner, and that includes the law as well as the fact. See _juror's oath_, page 86.] CHAPTER X. MORAL CONSIDERATIONS FOR JURORS. The trial by jury must, if possible, be construed to be such that a man can rightfully sit in a jury, and unite with his fellows in giving judgment. But no man can rightfully do this, unless he hold in his own hand alone a veto upon any judgment or sentence whatever to be rendered by the jury against a defendant, which veto he must be permitted to use according to his own discretion and conscience, and not bound to use according to the dictation of either legislatures or judges. The prevalent idea, that a juror may, at the mere dictation of a legislature or a judge, and without the concurrence of his own conscience or understanding, declare a man "_guilty_," and thus in effect license the government to punish him; and that the legislature or the judge, and not himself, has in that case all the moral responsibility for the correctness of the principles on which the judgment was rendered, is one of the many gross impostures by which it could hardly have been supposed that any sane man could ever have been deluded, but which governments have nevertheless succeeded in inducing the people at large to receive and act upon. As a moral proposition, it is perfectly self-evident that, unless juries have all the legal rights that have been claimed for them in the preceding chapters,--that is, the rights of judging what the law is, whether the law be a just one, what evidence is admissible, what weight the evidence is entitled to, whether an act were done with a criminal intent, and the right also to _limit_ the sentence, free of all dictation from any quarter,--they have no _moral_ right to sit in the trial at all, and cannot do so without making themselves accomplices in any injustice that they may have reason to believe may result from their verdict. It is absurd to say that they have no moral responsibility for the use that may be made of their verdict by the government, when they have reason to suppose it will be used for purposes of injustice. It is, for instance, manifestly absurd to say that jurors have no moral responsibility for the enforcement of an unjust law, when they consent to render a verdict of _guilty_ for the transgression of it; which verdict they know, or have good reason to believe, will be used by the government as a justification for inflicting a penalty. It is absurd, also, to say that jurors have no moral responsibility for a punishment inflicted upon a man _against law_, when, at the dictation of a judge as to what the law is, they have consented to render a verdict against their own opinions of the law. It is absurd, too, to say that jurors have no moral responsibility for the conviction and punishment of an innocent man, when they consent to render a verdict against him on the strength of evidence, or laws of evidence, dictated to them by the court, if any evidence or laws of evidence have been excluded, which _they_ (the jurors) think ought to have been admitted in his defence. It is absurd to say that jurors have no moral responsibility for rendering a verdict of "_guilty_" against a man, for an act which he did not know to be a crime, and in the commission of which, therefore, he could have had no criminal intent, in obedience to the instructions of courts that "ignorance of the law (that is, of crime) excuses no one." It is absurd, also, to say that jurors have no moral responsibility for any cruel or unreasonable _sentence_ that may be inflicted even upon a _guilty_ man, when they consent to render a verdict which they have reason to believe will be used by the government as a justification for the infliction of such sentence. The consequence is, that jurors must have the whole case in their hands, and judge of law, evidence, and sentence, or they incur the moral responsibility of accomplices in any injustice which they have reason to believe will be done by the government on the authority of their verdict. The same principles apply to civil cases as to criminal. If a jury consent, at the dictation of the court, as to either law or evidence, to render a verdict, on the strength of which they have reason to believe that a man's property will be taken from him and given to another, against their own notions of justice, they make themselves morally responsible for the wrong. Every man, therefore, ought to refuse to sit in a jury, and to take the oath of a juror, unless the form of the oath be such as to allow him to use his own judgment, on every part of the case, free of all dictation whatsoever, and to hold in his own hand a veto upon any verdict that can be rendered against a defendant, and any sentence that can be inflicted upon him, even if he be guilty. Of course, no man can rightfully take an oath as juror, to try a case "according to law," (if by law be meant anything other than his own ideas of justice,) nor "according to the law and the evidence, _as they shall be given him_." Nor can he rightfully take an oath even to try a case "_according to the evidence_," because in all cases he may have good reason to believe that a party has been unable to produce all the evidence legitimately entitled to be received. The only oath which it would seem that a man can rightfully take as juror, in either a civil or criminal case, is, that he "will try the case _according to his conscience_." Of course, the form may admit of variation, but this should be the substance. Such, we have seen, were the ancient common law oaths. CHAPTER XI. AUTHORITY OF MAGNA CARTA. Probably no political compact between king and people was ever entered into in a manner to settle more authoritatively the fundamental law of a nation, than was Magna Carta. Probably no people were ever more united and resolute in demanding from their king a definite and unambiguous acknowledgment of their rights and liberties, than were the English at that time. Probably no king was ever more completely stripped of all power to maintain his throne, and at the same time resist the demands of his people, than was John on the 15th day of June, 1215. Probably no king ever consented, more deliberately or explicitly, to hold his throne subject to specific and enumerated limitations upon his power, than did John when he put his seal to the Great Charter of the Liberties of England. And if any political compact between king and people was ever valid to settle the liberties of the people, or to limit the power of the crown, that compact is now to be found in Magna Carta. If, therefore, the constitutional authority of Magna Carta had rested solely upon the compact of John with his people, that authority would have been entitled to stand forever as the supreme law of the land, unless revoked by the will of the people themselves. But the authority of Magna Carta does not rest alone upon the compact with _John_. When, in the next year, (1216,) his son, Henry III., came to the throne, the charter was ratified by him, and again in 1217, and again in 1225, in substantially the same form, and especially without allowing any new powers, legislative, judicial, or executive, to the king or his judges, and without detracting in the least from the powers of the jury. And from the latter date to this, the charter has remained unchanged. In the course of two hundred years the charter was confirmed by Henry and his successors more than thirty times. And although they were guilty of numerous and almost continual breaches of it, and were constantly seeking to evade it, yet such were the spirit, vigilance and courage of the nation, that the kings held their thrones only on the condition of their renewed and solemn promises of observance. And it was not until 1429, (as will be more fully shown hereafter,) when a truce between themselves, and a formal combination against the mass of the people, had been entered into, by the king, the nobility, and the "_forty shilling freeholders_," (a class whom Mackintosh designates as "_a few freeholders then accounted wealthy_,"[106]) by the exclusion of all others than such freeholders from all voice in the election of knights to represent the counties in the House of Commons, that a repetition of these confirmations of Magna Carta ceased to be demanded and obtained.[107] The terms and the formalities of some of these "confirmations" make them worthy of insertion at length. Hume thus describes one which took place in the 38th year of Henry III. (1253): "But as they (the barons) had experienced his (the king's) frequent breach of promise, they required that he should ratify the Great Charter in a manner still more authentic and solemn than any which he had hitherto employed. All the prelates and abbots were assembled. They held burning tapers in their hands. The Great Charter was read before them. They denounced the sentence of excommunication against every one who should thenceforth violate that fundamental law. They threw their tapers on the ground, and exclaimed, _May the soul of every one who incurs this sentence so stink and corrupt in hell!_ The king bore a part in this ceremony, and subjoined, 'So help me God! I will keep all these articles inviolate, as I am a man, as I am a Christian, as I am a knight, and as I am a king crowned and anointed.'"--_Hume_, ch. 12. See also _Blackstone's Introd. to the Charters. Black. Law Tracts_, Oxford ed., p. 332. _Mackintosh's Hist. of Eng._, ch. 3. _Lardner's Cab. Cyc._, vol. 45, p. 233-4. The following is the form of "the sentence of excommunication" referred to by Hume: "_The Sentence of Curse, Given by the Bishops, against the Breakers of the Charters._ "The year of our Lord a thousand two hundred and fifty-three, the third day of May, in the great Hall of the King at Westminster, _in the presence, and by the assent, of the Lord Henry, by the Grace of God King of England_, and the Lords Richard, Earl of Cornwall, his brother, Roger (Bigot) Earl of Norfolk and Suffolk, marshal of England, Humphrey, Earl of Hereford, Henry, Earl of Oxford, John, Earl of Warwick, and other estates of the Realm of England: We, Boniface, by the mercy of God Archbishop of Canterbury, Primate of all England, F. of London, H. of Ely, S. of Worcester, E. of Lincoln, W. of Norwich, P. of Hereford, W. of Salisbury, W. of Durham, R. of Exeter, M. of Carlisle, W. of Bath, E. of Rochester, T. of Saint David's, Bishops, apparelled in Pontificals, with tapers burning, against the breakers of the Church's Liberties, and of the Liberties or free customs of the Realm of England, and especially of those which are contained in the Charter of the Common Liberties of the Realm, and the Charter of the Forest, have solemnly denounced the sentence of Excommunication in this form. By the authority of Almighty God, the Father, the Son, and the Holy Ghost, and of the glorious Mother of God, and perpetual Virgin Mary, of the blessed Apostles Peter and Paul, and of all apostles, of the blessed Thomas, Archbishop and Martyr, and of all martyrs, of blessed Edward of England, and of all Confessors and virgins, and of all the saints of heaven: We excommunicate, accurse, and from the thresholds (liminibus) of our Holy Mother the Church, We sequester, all those that hereafter willingly and maliciously deprive or spoil the Church of her right: And all those that by any craft or wiliness do violate, break, diminish, or change the Church's Liberties, or the ancient approved customs of the Realm, and especially the Liberties and free Customs contained in the Charters of the Common Liberties, and of the Forest, conceded by our Lord the King, to Archbishops, Bishops, and other Prelates of England; and likewise to the Earls, Barons, Knights, and other Freeholders of the Realm: And all that secretly, or openly, by deed, word, or counsel, _do make statutes, or observe them being made_, and that bring in Customs, or keep them when they be brought in, against the said Liberties, or any of them, the Writers and Counsellors of said statutes, and the Executors of them, and all those that shall presume to judge according to them. All and every which persons before mentioned, that wittingly shall commit anything of the premises, let them well know that they incur the aforesaid sentence, _ipso facto_, (i.e., upon the deed being done.) And those that ignorantly do so, and be admonished, except they reform themselves within fifteen days after the time of the admonition, and make full satisfaction for that they have done, at the will of the ordinary, shall be from that time forth included in the same sentence. And with the same sentence we burden all those that presume to perturb the peace of our sovereign Lord the King, and of the Realm. To the perpetual memory of which thing, We, the aforesaid Prelates, have put our seals to these presents."--_Statutes of the Realm_, vol. 1, p. 6. _Ruffhead's Statutes_, vol. 1, p. 20. One of the Confirmations of the Charters, by Edward I., was by statute, in the 25th year of his reign, (1297,) in the following terms. The statute is usually entitled "_Confirmatio Cartarum_," (Confirmation of the Charters.) _Ch. 1._ "Edward, by the Grace of God, King of England, Lord of Ireland, and Duke of Guyan, To all those that these presents shall hear or see, Greeting. Know ye, that We, to the honor of God, and of Holy Church, and to the profit of our Realm, have granted, for us and our heirs, that the Charter of Liberties, and the Charter of the Forest, which were made by common assent of all the Realm, in the time of King Henry our Father, shall be kept in every point without breach. And we will that the same Charters shall be sent under our seal, as well to our justices of the Forest, as to others, and to all Sheriffs of shires, and to all our other officers, and to all our cities throughout the Realm, together with our writs, in the which it shall be contained, that they cause the aforesaid Charters to be published, and to declare to the people that We have confirmed them at all points; and to our Justices, Sheriffs, Mayors, and other ministers, which under us have the Laws of our Land to guide, that they allow the same Charters, in all their points, in pleas before them, and in judgment; that is, to wit, the Great Charter as the Common Law, and the Charter of the Forest for the wealth of our Realm. _Ch. 2._ "And we will that if any judgment be given from henceforth contrary to the points of the charters aforesaid by the justices, or by any others our ministers that hold plea before them, against the points of the Charters, it shall be undone and holden for naught. _Ch. 3._ "And we will, that the same Charters shall be sent, under our seal, to Cathedral Churches throughout our Realm, there to remain, and shall be read before the people two times in the year. _Ch. 4._ "And that all Archbishops and Bishops shall pronounce the sentence of excommunication against all those that by word, deed, or counsel, do contrary to the foresaid charters, or that in any point break or undo them. And that the said Curses be twice a year denounced and published by the prelates aforesaid. And if the same prelates, or any of them, be remiss in the denunciation of the said sentences, the Archbishops of Canterbury and York, for the time being, shall compel and distrain them to make the denunciation in the form aforesaid."--_St. 25 Edward I._, (1297.) _Statutes of the Realm_, vol. 1, p. 123. It is unnecessary to repeat the terms of the various confirmations, most of which were less formal than those that have been given, though of course equally authoritative. Most of them are brief, and in the form of a simple statute, or promise, to the effect that "The Great Charter, and the Charter of the Forest, shall be firmly kept and maintained in all points." They are to be found printed with the other statutes of the realm. One of them, after having "again granted, renewed and confirmed" the charters, requires as follows: "That the Charters be delivered to every sheriff of England under the king's seal, to be read four times in the year before the people in the full county," (that is, at the county court,) "that is, to wit, the next county (court) after the feast of Saint Michael, and the next county (court) after Christmas, and at the next county (court) after Easter, and at the next county (court) after the feast of Saint John."--_28 Edward I._, ch. 1, (1300.) Lingard says, "The Charter was ratified four times by Henry III., twice by Edward I., fifteen times by Edward III., seven times by Richard II., six times by Henry IV., and once by Henry V.;" making thirty-five times in all.--_3 Lingard_, 50, note, Philad. ed. Coke says Magna Carta was confirmed thirty-two times.--Preface_ to_ 2 _Inst_., p. 6. Lingard calls these "thirty-five successive ratifications" of the charter, "a sufficient proof how much its provisions were abhorred by the sovereign, and how highly they were prized by the nation."--_3 Lingard_, 50. Mackintosh says, "For almost five centuries (that is, until 1688) it (Magna Carta) was appealed to as the decisive authority on behalf of the people, though commonly so far only as the necessities of each case demanded."--_Mackintosh's Hist. of Eng._ ch. 3. _45 Lardner's Cab. Cyc._, 221. Coke, who has labored so hard to overthrow the most vital principles of Magna Carta, and who, therefore, ought to be considered good authority when he speaks in its favor,[108] says: "It is called Magna Carta, not that it is great in quantity, for there be many voluminous charters commonly passed, specially in these later times, longer than this is; nor comparatively in respect that it is greater than _Charta de Foresta_, but in respect of the great importance and weightiness of the matter, as hereafter shall appear; and likewise for the same cause _Charta de Foresta_; and both of them are called _Magnæ Chartæ Libertatum Angliæ_, (The Great Charters of the Liberties of England.) ... "And it is also called _Charta Libertatum regni_, (Charter of the Liberties of the kingdom;) and upon great reason it is so called of the effect, _quia liberos facit_, (because it makes men free.) Sometime for the same cause (it is called) _communis libertas_, (common liberty,) and _le chartre des franchises_, (the charter of franchises.) ... "It was for the most part declaratory of the principal grounds of the fundamental laws of England, and for the residue it is additional to supply some defects of the common law.... "Also, by the said act of 25 Edward I., (called _Confirmatio Chartarum_,) it is adjudged in parliament that the Great Charter and the Charter of the Forest shall be taken as the common law.... "They (Magna Carta and Carta de Foresta) were, for the most part, but declarations of the ancient common laws of England, to the observation and keeping whereof, the king was bound and sworn. "After the making of Magna Charta, and Charta de Foresta, divers learned men in the laws, that I may use the words of the record, kept schools of the law in the city of London, and taught such as resorted to them the laws of the realm, taking their foundation of Magna Charta and Charta de Foresta. "And the said two charters have been confirmed, established, and commanded to be put in execution by thirty-two several acts of parliament in all. "This appeareth partly by that which hath been said, for that it hath so often been confirmed by the wise providence of so many acts of parliament. "And albeit judgments in the king's courts are of high regard in law, and _judicia_ (judgments) are accounted as _jurisdicta_, (the speech of the law itself,) yet it is provided by act of parliament, that if any judgment be given contrary to any of the points of the Great Charter and Charta de Foresta, by the justices, or by any other of the king's ministers, &c., it shall be undone, and holden for naught. "And that both the said charters shall be sent under the great seal to all cathedral churches throughout the realm, there to remain, and shall be read to the people twice every year. "The highest and most binding laws are the statutes which are established by parliament; and by authority of that highest court it is enacted (only to show their tender care of Magna Carta and Carta de Foresta) that if any statute be made contrary to the Great Charter, or the Charter of the Forest, that shall be holden for none; by which words all former statutes made against either of those charters are now repealed; and the nobles and great officers were to be sworn to the observation of Magna Charta and Charta de Foresta. "_Magna fuit quondam magnæ reverentia chartæ._" (Great was formerly the reverence for Magna Carta.)--_Coke's Proem to 2 Inst._, p. 1 to 7. Coke also says, "All pretence of prerogative against Magna Charta is taken away."--_2 Inst._, 36. He also says, "That after this parliament (_52 Henry_ III., in 1267) neither Magna Carta nor Carta de Foresta was ever attempted to be impugned or questioned."--_2 Inst._, 102.[109] To give all the evidence of the authority of Magna Carta, it would be necessary to give the constitutional history of England since the year 1215. This history would show that Magna Carta, although continually violated and evaded, was still acknowledged as law by the government, and was held up by the people as the great standard and proof of their rights and liberties. It would show also that the judicial tribunals, _whenever it suited their purposes to do so_, were in the habit of referring to Magna Carta as authority, in the same manner, and with the same real or pretended veneration, with which American courts now refer to the constitution of the United States, or the constitutions of the states. And, what is equally to the point, it would show that these same tribunals, the mere tools of kings and parliaments, would resort to the same artifices of assumption, _precedent_, construction, and false interpretation, to evade the requirements of Magna Carta, and to emasculate it of all its power for the preservation of liberty, that are resorted to by American courts to accomplish the same work on our American constitutions. I take it for granted, therefore, that if the authority of Magna Carta had rested simply upon its character as a _compact_ between the king and the people, it would have been forever binding upon the king, (that is, upon the government, for the king was the government,) in his legislative, judicial, and executive character; and that there was no _constitutional_ possibility of his escaping from its restraints, unless the people themselves should freely discharge him from them. But the authority of Magna Carta does not rest, either wholly or mainly, upon its character as a compact. For centuries before the charter was granted, its main principles constituted "the Law of the Land,"--the fundamental and constitutional law of the realm, which the kings were sworn to maintain. And the principal benefit of the charter was, that it contained a _written_ description and acknowledgment, by the king himself, of what the constitutional law of the kingdom was, which his coronation oath bound him to observe. Previous to Magna Carta, this constitutional law rested mainly in precedents, customs, and the memories of the people. And if the king could but make one innovation upon this law, without arousing resistance, and being compelled to retreat from his usurpation, he would cite that innovation as a precedent for another act of the same kind; next, assert a custom; and, finally, raise a controversy as to what the Law of the Land really was. The great object of the barons and people, in demanding from the king a written description and acknowledgment of the Law of the Land, was to put an end to all disputes of this kind, and to put it out of the power of the king to plead any misunderstanding of the constitutional law of the kingdom. And the charter, no doubt, accomplished very much in this way. After Magna Carta, it required much more audacity, cunning, or strength, on the part of the king, than it had before, to invade the people's liberties with impunity. Still, Magna Carta, like all other written constitutions, proved inadequate to the full accomplishment of its purpose; for when did a parchment ever have power adequately to restrain a government, that had either cunning to evade its requirements, or strength to overcome those who attempted its defence? The work of usurpation, therefore, though seriously checked, still went on, to a great extent, after Magna Carta. Innovations upon the Law of the Land are still made by the government. One innovation was cited as a precedent; precedents made customs; and customs became laws, so far as practice was concerned; until the government, composed of the king, the high functionaries of the church, the nobility, a House of Commons representing the "forty shilling freeholders," and a dependent and servile judiciary, all acting in conspiracy against the mass of the people, became practically absolute, as it is at this day. As proof that Magna Carta embraced little else than what was previously recognized as the common law, or Law of the Land, I repeat some authorities that have been already cited. Crabbe says, "It is admitted on all hands that it (Magna Carta) contains nothing but what was confirmatory of the common law and the ancient usages of the realm; and is, properly speaking, only an enlargement of the charter of Henry I. and his successors."--_Crabbe's Hist. of the Eng. Law_, p. 127. Blackstone says, "It is agreed by all our historians that the Great Charter of King John was, for the most part, compiled from the ancient customs of the realm, or the laws of Edward the Confessor; by which they mean the old common law which was established under our Saxon princes."--_Blackstone's Introd. to the Charters._ See _Blackstone's Law Tracts_, Oxford ed., p. 289. Coke says, "The common law is the most general and ancient law of the realm.... The common law appeareth in the statute of _Magna Carta_, and other ancient statutes, (which for the most part are affirmations of the common law,) in the original writs, in judicial records, and in our books of terms and years."--_1 Inst._, 115 b. Coke also says, "It (Magna Carta) was for the most part declaratory of the principal grounds of the fundamental laws of England, and for the residue it was additional to supply some defects of the common law.... They (Magna Carta and Carta de Foresta) were, for the most part, but declarations of the ancient common laws of England, _to the observation and keeping whereof the king was bound and sworn_."--_Preface to 2 Inst._, p. 3 and 5. Hume says, "We may now, from the tenor of this charter, (Magna Carta,) conjecture what those laws were of King Edward, (the Confessor,) which the English nation during so many generations still desired, with such an obstinate perseverance, to have recalled and established. They were chiefly these latter articles of Magna Carta; and the barons who, at the beginning of these commotions, demanded the revival of the Saxon laws, undoubtedly thought that they had sufficiently satisfied the people, by procuring them this concession, which comprehended the principal objects to which they had so long aspired."--_Hume_, ch. 11. Edward the First confessed that the Great Charter was substantially identical with the common law, as far as it went, when he commanded his justices to allow "the Great Charter as the Common Law," "in pleas before them, and in judgment," as has been already cited in this chapter.--_25 Edward_ I., ch. 1, (1297.) In conclusion of this chapter, it may be safely asserted that the veneration, attachment, and pride, which the English nation, for more than six centuries, have felt towards Magna Carta, are in their nature among the most irrefragable of all proofs that it was the fundamental law of the land, and constitutionally binding upon the government; for, otherwise, it would have been, in their eyes, an unimportant and worthless thing. What those sentiments were I will use the words of others to describe,--the words, too, of men, who, like all modern authors who have written on the same topic, had utterly inadequate ideas of the true character of the instrument on which they lavished their eulogiums. Hume, speaking of the Great Charter and the Charter of the Forest, as they were confirmed by Henry III., in 1217, says: "Thus these famous charters were brought nearly to the shape in which they have ever since stood; and they were, during many generations, the peculiar favorites of the English nation, and esteemed the most sacred rampart to national liberty and independence. As they secured the rights of all orders of men, they were anxiously defended by all, and became the basis, in a manner, of the English monarchy, and a kind of original contract, which both limited the authority of the king and ensured the conditional allegiance of his subjects. Though often violated, they were still claimed by the nobility and people; and, as no precedents were supposed valid that infringed them, they rather acquired than lost authority, from the frequent attempts made against them in several ages, by regal and arbitrary power."--_Hume_, ch. 12. Mackintosh says, "It was understood by the simplest of the unlettered age for whom it was intended. It was remembered by them.... For almost five centuries it was appealed to as the decisive authority on behalf of the people.... To have produced it, to have preserved it, to have matured it, constitute the immortal claim of England on the esteem of mankind. Her Bacons and Shakspeares, her Miltons and Newtons, with all the truth which they have revealed, and all the generous virtues which they have inspired, are of inferior value when compared with the subjection of men and their rulers to the principles of justice; if, indeed, it be not more true that these mighty spirits could not have been formed except under equal laws, nor roused to full activity without the influence of that spirit which the Great Charter breathed over their forefathers."--_Mackintosh's Hist. of Eng._, ch. 3.[110] Of the Great Charter, the trial by jury is the vital part, and the only part that places the liberties of the people in their own keeping. Of this Blackstone says: "The trial by jury, or the country, _per patriam_, is also that trial by the peers of every Englishman, which, as the grand bulwark of his liberties, is secured to him by the Great Charter; _nullus liber homo capiatur, vel imprisonetur, aut exuletur, aut aliquo modo destruatur, nisi per legale judicium parium suorum, vel per legem terrae...._ The liberties of England cannot but subsist so long as this palladium remains sacred and inviolate, not only from all open attacks, which none will be so hardy as to make, but also from all secret machinations which may sap and undermine it."[111] "The trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law.... It is the most transcendent privilege which any subject can enjoy or wish for, that he cannot be affected in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbors and equals."[112] Hume calls the trial by jury "An institution admirable in itself, and the best calculated for the preservation of liberty and the administration of justice, that ever was devised by the wit of man."[113] An old book, called "English Liberties," says: "English Parliaments have all along been most zealous for preserving this great Jewel of Liberty, trials by juries having no less than fifty-eight several times, since the Norman Conquest, been established and confirmed by the legislative power, no one privilege besides having been ever so often remembered in parliament."[114] [Footnote 106: _Mackintosh's Hist. of Eng._, ch. 3. _45 Lardner's Cab. Cyc._, 354.] [Footnote 107: "_Forty shilling freeholders_" were those "people dwelling and resident in the same counties, whereof every one of them shall have free land or tenement to the value of forty shillings by the year at the least above all charges." By statute _8 Henry_ 6, ch. 7, (1429,) these freeholders only were allowed to vote for members of Parliament from the _counties_.] [Footnote 108: He probably speaks in its favor only to blind the eyes of the people to the frauds he has attempted upon its true meaning.] [Footnote 109: It will be noticed that Coke calls these confirmations of the charter "acts of parliament," instead of acts of the king alone. This needs explanation. It was one of Coke's ridiculous pretences, that laws anciently enacted by the king, at the request, or with the consent, or by the advice, of his parliament, was "an act of parliament," instead of the act of the king. And in the extracts cited, he carries this idea so far as to pretend that the various confirmations of the Great Charter were "acts of parliament," instead of the acts of the kings. He might as well have pretended that the original grant of the Charter was an "act of parliament;" because it was not only granted at the request, and with the consent, and by the advice, but on the compulsion even, of those who commonly constituted his parliaments. Yet this did not make the grant of the charter "an act of parliament." It was simply an act of the king. The object of Coke, in this pretence, was to furnish some color for the palpable falsehood that the legislative authority, which parliament was trying to assume in his own day, and which it finally succeeded in obtaining, had a precedent in the ancient constitution of the kingdom. There would be as much reason in saying that, because the ancient kings were in the habit of passing laws in special answer to the _petitions_ of their subjects, therefore those _petitioners_ were a part of the legislative power of the kingdom. One great objection to this argument of Coke, for the legislative authority of the ancient parliaments, is that a very large--probably much the larger--number of legislative acts were done _without_ the advice, consent, request, or even presence, of a parliament. Not only were many formal statutes passed without any mention of the consent or advice of parliament, but a simple order of the king in council, or a simple proclamation, writ, or letter under seal, issued by his command, had the same force as what Coke calls "an act of parliament." And this practice continued, to a considerable extent at least, down to Coke's own time. The kings were always in the habit of consulting their parliaments, more or less, in regard to matters of legislation,--not because their consent was constitutionally necessary, but in order to make influence in favor of their laws, and thus induce the people to observe them, and the juries to enforce them. The general duties of the ancient parliaments were not legislative, but judicial, as will be shown more fully hereafter. The _people_ were not represented in the parliaments at the time of Magna Carta, but only the archbishops, bishops, earls, barons, and knights; so that little or nothing would have been gained for liberty by Coke's idea that parliament had a legislative power. He would only have substituted an aristocracy for a king. Even after the Commons were represented in parliament, they for some centuries appeared only as _petitioners_, except in the matter of taxation, when their _consent_ was asked. And almost the only source of their influence on legislation was this: that they would sometimes refuse their consent to the taxation, unless the king would pass such laws as they petitioned for; or, as would seem to have been much more frequently the case, unless he would abolish such laws and practices as they remonstrated against. The _influence_ or power of parliament, and especially of the Commons, in the general legislation of the country, was a thing of slow growth, having its origin in a device of the king to get money contrary to law, (as will be seen in the next volume,) and not at all a part of the constitution of the kingdom, nor having its foundation in the consent of the people. The power, _as at present exercised_, was not fully established until 1688, (near five hundred years after Magna Carta,) when the House of Commons (falsely so called) had acquired such influence as the representative, _not of the people, but of the wealth, of the nation_, that they compelled the king to discard the oath fixed by the constitution of the kingdom; (which oath has been already given in a former chapter,(page 101) and was, in substance, to preserve and execute the Common Law, the Law of the Land,--or, in the words of the oath, "_the just laws and customs which the common people had chosen_;") and to swear that he would "govern the people of this kingdom of England, and the dominions thereto belonging, _according to the statutes in parliament agreed on_, and the laws and customs of the same."[115] The passage and enforcement of this statute, and the assumption of this oath by the king, were plain violations of the English constitution, inasmuch as they abolished, so far as such an oath could abolish, the legislative power of the king, and also "those just laws and customs which the common people (through their juries) had chosen," and substituted the will of parliament in their stead. Coke was a great advocate for the legislative power of parliament, as a means of restraining the power of the king. As he denied all power to _juries_ to decide upon the obligation of laws, and as he held that the legislative power was "_so transcendent and absolute as (that) it cannot be confined, either for causes or persons, within any bounds_,"[116] he was perhaps honest in holding that it was safer to trust this terrific power in the hands of parliament, than in the hands of the king. His error consisted in holding that either the king or parliament had any such power, or that they had any power at all to pass laws that should be binding upon a jury. These declarations of Coke, that the charter was confirmed by thirty-two "acts of parliament," have a mischievous bearing in another respect. They tend to weaken the authority of the charter, by conveying the impression that the charter itself might be _abolished_ by "act of parliament." Coke himself admits that it could not be revoked or rescinded by the _king_; for he says, "All pretence of prerogative against Magna Carta is taken away." (_2 Inst._, 36.) He knew perfectly well, and the whole English nation knew, that the _king_ could not lawfully infringe Magna Carta. Magna Carta, therefore, made it impossible that absolute power could ever be practically established in England, _in the hands of the king_. Hence, as Coke was an advocate for absolute power,--that is, for a legislative power "so transcendent and absolute as (that) it cannot be confined, either for causes or persons, within any bounds,"--there was no alternative for him but to vest this absolute power in parliament. Had he not vested it in parliament, he would have been obliged to abjure it altogether, and to confess that the people, _through their juries_, had the right to judge of the obligation of all legislation whatsoever; in other words, that they had the right to confine the government within the limits of "those just laws and customs which the common people (acting as jurors) had chosen." True to his instincts, as a judge, and as a tyrant, he assumed that this absolute power was vested in the hands of parliament. But the truth was that, as by the English constitution parliament had no authority at all for _general_ legislation, it could no more confirm, than it could abolish, Magna Carta. These thirty-two confirmations of Magna Carta, which Coke speaks of as "acts of parliament," were merely acts of the king. The parliaments, indeed, by refusing to grant him money, except on that condition, and otherwise, had contributed to oblige him to make the confirmations; just as they had helped to oblige him by arms to grant the charter in the first place. But the confirmations themselves were nevertheless constitutionally, as well as formally, the acts of the king alone.] [Footnote 110: Under the head of "_John._"] [Footnote 111: _4 Blackstone_, 349-50.] [Footnote 112: _3 Blackstone_, 379.] [Footnote 113: _Hume_, ch. 2.] [Footnote 114: Page 203, 5th edition, 1721.] [Footnote 115: St. 1 _William and Mary_, ch. 6, (1688.)] [Footnote 116: 4 _Inst._, 36.] CHAPTER XII. LIMITATIONS IMPOSED UPON THE MAJORITY BY THE TRIAL BY JURY. The principal objection, that will be made to the doctrine of this essay, is, that under it, a jury would paralyze the power of the majority, and veto all legislation that was not in accordance with the will of the whole, or nearly the whole, people. The answer to this objection is, that the limitation, which would be thus imposed upon the legislative power, (whether that power be vested in the majority, or minority, of the people,) is the crowning merit of the trial by jury. It has other merits; but, though important in themselves, they are utterly insignificant and worthless in comparison with this. It is this power of vetoing all partial and oppressive legislation, and of restricting the government to the maintenance of such laws as the _whole_, or substantially the whole, people _are agreed in_, that makes the trial by jury "the palladium of liberty." Without this power it would never have deserved that name. The will, or the pretended will, of the majority, is the last lurking place of tyranny at the present day. The dogma, that certain individuals and families have a divine appointment to govern the rest of mankind, is fast giving place to the one that the larger number have a right to govern the smaller; a dogma, which may, or may not, be less oppressive in its practical operation, but which certainly is no less false or tyrannical in principle, than the one it is so rapidly supplanting. Obviously there is nothing in the nature of majorities, that insures justice at their hands. They have the same passions as minorities, and they have no qualities whatever that should be expected to prevent them from practising the same tyranny as minorities, if they think it will be for their interest to do so. There is no particle of truth in the notion that the majority have a _right_ to rule, or to exercise arbitrary power over, the minority, simply because the former are more numerous than the latter. Two men have no more natural right to rule one, than one has to rule two. Any single man, or any body of men, many or few, have a natural right to maintain justice for themselves, and for any others who may need their assistance, against the injustice of any and all other men, without regard to their numbers; and majorities have no right to do any more than this. The relative numbers of the opposing parties have nothing to do with the question of right. And no more tyrannical principle was ever avowed, than that the will of the majority ought to have the force of law, without regard to its justice; or, what is the same thing, that the will of the majority ought always to be presumed to be in accordance with justice. Such a doctrine is only another form of the doctrine that might makes right. When _two_ men meet _one_ upon the highway, or in the wilderness, have they a right to dispose of his life, liberty, or property at their pleasure, simply because they are the more numerous party? Or is he bound to submit to lose his life, liberty, or property, if they demand it, merely because he is the less numerous party? Or, because they are more numerous than he, is he bound to presume that they are governed only by superior wisdom, and the principles of justice, and by no selfish passion that can lead them to do him a wrong? Yet this is the principle, which it is claimed should govern men in all their civil relations to each other. Mankind fall in company with each other on the highway or in the wilderness of life, and it is claimed that the more numerous party, simply by virtue of their superior numbers, have the right arbitrarily to dispose of the life, liberty, and property of the minority; and that the minority are bound, by reason of their inferior numbers, to practise abject submission, and consent to hold their natural rights,--any, all, or none, as the case may be,--at the mere will and pleasure of the majority; as if all a man's natural rights expired, or were suspended by the operation of a paramount law, the moment he came into the presence of superior numbers. If such be the true nature of the relations men hold to each other in this world, it puts an end to all such things as crimes, unless they be perpetrated upon those who are equal or superior, in number, to the actors. All acts committed against persons _inferior_ in number to the aggressors, become but the exercise of rightful authority. And consistency with their own principles requires that all governments, founded on the will of the majority, should recognize this plea as a sufficient justification for all crimes whatsoever. If it be said that the majority should be allowed to rule, not because they are stronger than the minority, but because their superior numbers furnish a _probability_ that they are in the right; one answer is, that the lives, liberties, and properties of men are too valuable to them, and the natural presumptions are too strong in their favor, to justify the destruction of them by their fellow-men on a mere balancing of probabilities, _or on any ground whatever short of certainty beyond a reasonable doubt_. This last is the moral rule universally recognized to be binding upon single individuals. And in the forum of conscience the same rule is equally binding upon governments, for governments are mere associations of individuals. This is the rule on which the trial by jury is based. And it is plainly the only rule that ought to induce a man to submit his rights to the adjudication of his fellow-men, or dissuade him from a forcible defence of them. Another answer is, that if two opposing parties could be supposed to have no personal interests or passions involved, to warp their judgments, or corrupt their motives, the fact that one of the parties was more numerous than the other, (a fact that leaves the comparative intellectual competency of the two parties entirely out of consideration,) might, perhaps, furnish a slight, but at best only a very slight, probability that such party was on the side of justice. But when it is considered that the parties are liable to differ in their intellectual capacities, and that one, or the other, or both, are undoubtedly under the influence of such passions as rivalry, hatred, avarice, and ambition,--passions that are nearly certain to pervert their judgments, and very likely to corrupt their motives,--all probabilities founded upon a mere numerical majority, in one party, or the other, vanish at once; and the decision of the majority becomes, to all practical purposes, a mere decision of chance. And to dispose of men's properties, liberties, and lives, by the mere process of enumerating such parties, is not only as palpable gambling as was ever practised, but it is also the most atrocious that was ever practised, except in matters of government. And where government is instituted on this principle, (as in the United States, for example,) the nation is at once converted into one great gambling establishment; where all the rights of men are the stakes; a few bold bad men throw the dice--(dice loaded with all the hopes, fears, interests, and passions which rage in the breasts of ambitious and desperate men,)--and all the people, from the interests they have depending, become enlisted, excited, agitated, and generally corrupted, by the hazards of the game. The trial by jury disavows the majority principle altogether; and proceeds upon the ground that every man should be presumed to be entitled to life, liberty, and such property as he has in his possession; and that the government should lay its hand upon none of them, (except for the purpose of bringing them before a tribunal for adjudication,) unless it be first ascertained, _beyond a reasonable doubt_, in every individual case, that justice requires it. To ascertain whether there be such reasonable doubt, it takes twelve men _by lot_ from the whole body of mature men. If any of these twelve are proved to be under the influence of any _special_ interest or passion, that may either pervert their judgments, or corrupt their motives, they are set aside as unsuitable for the performance of a duty requiring such absolute impartiality and integrity; and others substituted in their stead. When the utmost practicable impartiality is attained on the part of the whole twelve, they are sworn to the observance of justice; and their unanimous concurrence is then held to be necessary to remove that reasonable doubt, which, unremoved, would forbid the government to lay its hand on its victim. Such is the caution which the trial by jury both practises and inculcates, against the violation of justice, on the part of the government, towards the humblest individual, in the smallest matter affecting his civil rights, his property, liberty, or life. And such is the contrast, which the trial by jury presents, to that gambler's and robber's rule, that the majority have a right, by virtue of their superior numbers, and without regard to justice, to dispose at pleasure of the property and persons of all bodies of men less numerous than themselves. The difference, in short, between the two systems, is this. The trial by jury protects person and property, inviolate to their possessors, from the hand of the law, unless _justice, beyond a reasonable doubt_, require them to be taken. The majority principle takes person and property from their possessors, at the mere arbitrary will of a majority, who are liable and likely to be influenced, in taking them, by motives of oppression, avarice, and ambition. If the relative numbers of opposing parties afforded sufficient evidence of the comparative justice of their claims, the government should carry the principle into its courts of justice; and instead of referring controversies to impartial and disinterested men,--to judges and jurors, sworn to do justice, and bound patiently to hear and weigh all the evidence and arguments that can be offered on either side,--it should simply _count_ the plaintiffs and defendants in each case, (where there were more than one of either,) and then give the case to the majority; after ample opportunity had been given to the plaintiffs and defendants to reason with, flatter, cheat, threaten, and bribe each other, by way of inducing them to change sides. Such a process would be just as rational in courts of justice, as in halls of legislation; for it is of no importance to a man, who has his rights taken from him, whether it be done by a legislative enactment, or a judicial decision. In legislation, the people are all arranged as plaintiffs and defendants in their own causes; (those who are in favor of a particular law, standing as plaintiffs, and those who are opposed to the same law, standing as defendants); and to allow these causes to be decided by majorities, is plainly as absurd as it would be to allow judicial decisions to be determined by the relative number of plaintiffs and defendants. If this mode of decision were introduced into courts of justice, we should see a parallel, and only a parallel, to that system of legislation which we witness daily. We should see large bodies of men conspiring to bring perfectly groundless suits, against other bodies of men, for large sums of money, and to carry them by sheer force of numbers; just as we now continually see large bodies of men conspiring to carry, by mere force of numbers, some scheme of legislation that will, directly or indirectly, take money out of other men's pockets, and put it into their own. And we should also see distinct bodies of men, parties in separate suits, combining and agreeing all to appear and be counted as plaintiffs or defendants in each other's suits, for the purpose of ekeing out the necessary majority; just as we now see distinct bodies of men, interested in separate schemes of ambition or plunder, conspiring to carry through a batch of legislative enactments, that shall accomplish their several purposes. This system of combination and conspiracy would go on, until at length whole states and a whole nation would become divided into two great litigating parties, each party composed of several smaller bodies, having their separate suits, but all confederating for the purpose of making up the necessary majority in each case. The individuals composing each of these two great parties, would at length become so accustomed to acting together, and so well acquainted with each others' schemes, and so mutually dependent upon each others' fidelity for success, that they would become organized as permanent associations; bound together by that kind of honor that prevails among thieves; and pledged by all their interests, sympathies, and animosities, to mutual fidelity, and to unceasing hostility to their opponents; and exerting all their arts and all their resources of threats, injuries, promises, and bribes, to drive or seduce from the other party enough to enable their own to retain or acquire such a majority as would be necessary to gain their own suits, and defeat the suits of their opponents. All the wealth and talent of the country would become enlisted in the service of these rival associations; and both would at length become so compact, so well organized, so powerful, and yet always so much in need of recruits, that a private person would be nearly or quite unable to obtain justice in the most paltry suit with his neighbor, except on the condition of joining one of these great litigating associations, who would agree to carry through his cause, on condition of his assisting them to carry through all the others, good and bad, which they had already undertaken. If he refused this, they would threaten to make a similar offer to his antagonist, and suffer their whole numbers to be counted against him. Now this picture is no caricature, but a true and honest likeness. And such a system of administering justice, would be no more false, absurd, or atrocious, than that system of working by majorities, which seeks to accomplish, by legislation, the same ends which, in the case supposed, would be accomplished by judicial decisions. Again, the doctrine that the minority ought to submit to the will of the majority, proceeds, not upon the principle that government is formed by voluntary association, and for an _agreed purpose_, on the part of all who contribute to its support, but upon the presumption that all government must be practically a state of war and plunder between opposing parties; and that, in order to save blood, and prevent mutual extermination, the parties come to an agreement that they will count their respective numbers periodically, and the one party shall then be permitted quietly to rule and plunder, (restrained only by their own discretion,) and the other submit quietly to be ruled and plundered, until the time of the next enumeration. Such an agreement may possibly be wiser than unceasing and deadly conflict; it nevertheless partakes too much of the ludicrous to deserve to be seriously considered as an expedient for the maintenance of civil society. It would certainly seem that mankind might agree upon a cessation of hostilities, upon more rational and equitable terms than that of unconditional submission on the part of the less numerous body. Unconditional submission is usually the last act of one who confesses himself subdued and enslaved. How any one ever came to imagine that condition to be one of freedom, has never been explained. And as for the system being adapted to the maintenance of justice among men, it is a mystery that any human mind could ever have been visited with an insanity wild enough to originate the idea. If it be said that other corporations, than governments, surrender their affairs into the hands of the majority, the answer is, that they allow majorities to determine only trifling matters, that are in their nature mere questions of discretion, and where there is no natural presumption of justice or right on one side rather than the other. They _never_ surrender to the majority the power to dispose of, or, what is practically the same thing, to _determine_, the _rights_ of any individual member. The _rights_ of every member are determined by the written compact, to which all the members have voluntarily agreed. For example. A banking corporation allows a majority to determine such questions of discretion as whether the note of A or of B shall be discounted; whether notes shall be discounted on one, two, or six days in the week; how many hours in a day their banking-house shall be kept open; how many clerks shall be employed; what salaries they shall receive, and such like matters, which are in their nature mere subjects of discretion, and where there are no natural presumptions of justice or right in favor of one course over the other. But no banking corporation allows a majority, or any other number of its members less than the whole, to divert the funds of the corporation to any other purpose than the one to which _every member_ of the corporation has legally agreed that they may be devoted; nor to take the stock of one member and give it to another; nor to distribute the dividends among the stockholders otherwise than to each one the proportion which he has agreed to accept, and all the others have agreed that he shall receive. Nor does any banking corporation allow a majority to impose taxes upon the members for the payment of the corporate expenses, except in such proportions as _every member_ has consented that they may be imposed. All these questions, involving the _rights_ of the members as against each other, are fixed by the articles of the association,--that is, by the agreement to which _every member_ has personally assented. What is also specially to be noticed, and what constitutes a vital difference between the banking corporation and the political corporation, or government, is, that in case of controversy among the members of the banking corporation, as to the _rights_ of any member, the question is determined, not by any number, either majority, or minority, of the corporation itself, _but by persons out of the corporation_; by twelve men acting as jurors, or by other tribunals of justice, of which no member of the corporation is allowed to be a part. But in the case of the political corporation, controversies among the parties to it, as to the rights of individual members, must of necessity be settled by members of the corporation itself, because there are no persons out of the corporation to whom the question can be referred. Since, then, all questions as to the _rights_ of the members of the political corporation, must be determined by members of the corporation itself, the trial by jury says that no man's _rights_,--neither his right to his life, his liberty, nor his property,--shall be determined by any such standard as the mere will and pleasure of majorities; but only by the unanimous verdict of a tribunal fairly representing the whole people,--that is, a tribunal of twelve men, taken, at random from the whole body, and ascertained to be as impartial as the nature of the case will admit, _and sworn to the observance of justice_. Such is the difference in the two kinds of corporations; and the custom of managing by majorities the mere discretionary matters of business corporations, (the majority having no power to determine the _rights_ of any member,) furnishes no analogy to the practice, adopted by political corporations, of disposing of all the _rights_ of their members by the arbitrary will of majorities. But further. The doctrine that the majority have a _right_ to rule, proceeds upon the principle that minorities have no _rights_ in the government; for certainly the minority cannot be said to have any _rights_ in a government, so long as the majority alone determine what their rights shall be. They hold everything, or nothing, as the case may be, at the mere will of the majority. It is indispensable to a "_free_ government," (in the political sense of that term,) that the minority, the weaker party, have a veto upon the acts of the majority. Political liberty is liberty for the _weaker party_ in a nation. It is only the weaker party that lose their liberties, when a government becomes oppressive. The stronger party, in all governments, are free by virtue of their superior strength. They never oppress themselves. Legislation is the work of this stronger party; and if, in addition to the sole power of legislating, they have the sole power of determining what legislation shall be enforced, they have all power in their hands, and the weaker party are the subjects of an absolute government. Unless the weaker party have a veto, either upon the making, or the enforcement of laws, they have no power whatever in the government, and can of course have no liberties except such as the stronger party, in their arbitrary discretion, see fit to permit them to enjoy. In England and the United States, the trial by jury is the only institution that gives the weaker party any veto upon the power of the stronger. Consequently it is the only institution, that gives them any effective voice in the government, or any guaranty against oppression. Suffrage, however free, is of no avail for this purpose; because the suffrage of the minority is overborne by the suffrage of the majority, and is thus rendered powerless for purposes of legislation. The responsibility of officers can be made of no avail, because they are responsible only to the majority. The minority, therefore, are wholly without rights in the government, wholly at the mercy of the majority, unless, through the trial by jury, they have a veto upon such legislation as they think unjust. Government is established for the protection of the weak against the strong. This is the principal, if not the sole, motive for the establishment of all legitimate government. Laws, that are sufficient for the protection of the weaker party, are of course sufficient for the protection of the stronger party; because the strong can certainly need no more protection than the weak. It is, therefore, right that the weaker party should be represented in the tribunal which is finally to determine what legislation may be enforced; and that no legislation shall be enforced against their consent. They being presumed to be competent judges of what kind of legislation makes for their safety, and what for their injury, it must be presumed that any legislation, which _they_ object to enforcing, tends to their oppression, and not to their security. There is still another reason why the weaker party, or the minority, should have a veto upon all legislation which they disapprove. _That reason is, that that is the only means by which the government can be kept within the limits of the contract, compact, or constitution, by which the whole people agree to establish government._ If the majority were allowed to interpret the compact for themselves, and enforce it according to their own interpretation, they would, of course, make it authorize them to do whatever they wish to do. The theory of free government is that it is formed by the voluntary contract of the people individually with each other. This is the theory, (although it is not, as it ought to be, the fact,) in all the governments in the United States, as also in the government of England. The theory assumes that each man, who is a party to the government, and contributes to its support, has individually and freely consented to it. Otherwise the government would have no right to tax him for its support,--for taxation without consent is robbery. This theory, then, necessarily supposes that this government, which is formed by the free consent of all, has no powers except such as _all_ the parties to it have individually agreed that it shall have; and especially that it has no power to pass any _laws_, except such as _all_ the parties have agreed that it may pass. This theory supposes that there may be certain laws that will be beneficial to _all_,--so beneficial that _all_ consent to be taxed for their maintenance. For the maintenance of these specific laws, in which all are interested, all associate. And they associate for the maintenance of those laws _only_, in which _all_ are interested. It would be absurd to suppose that all would associate, and consent to be taxed, for purposes which were beneficial only to a part; and especially for purposes that were injurious to any. A government of the whole, therefore, can have no powers except such as _all_ the parties consent that it may have. It can do nothing except what _all_ have consented that it may do. And if any portion of the people,--no matter how large their number, if it be less than the whole,--desire a government for any purposes other than those that are common to all, and desired by all, they must form a separate association for those purposes. They have no right,--by perverting this government of the whole, to the accomplishment of purposes desired only by a part,--to compel any one to contribute to purposes that are either useless or injurious to himself. Such being the principles on which the government is formed, the question arises, how shall this government, when formed, be kept within the limits of the contract by which it was established? How shall this government, instituted by the whole people, agreed to by the whole people, supported by the contributions of the whole people, be confined to the accomplishment of those purposes alone, which the whole people desire? How shall it be preserved from degenerating into a mere government for the benefit of a part only of those who established, and who support it? How shall it be prevented from even injuring a part of its own members, for the aggrandizement of the rest? Its laws must be, (or at least now are,) passed, and most of its other acts performed, by mere agents,--agents chosen by a part of the people, and not by the whole. How can these agents be restrained from seeking their own interests, and the interests of those who elected them, at the expense of the rights of the remainder of the people, by the passage and enforcement of laws that shall be partial, unequal, and unjust in their operation? That is the great question. And the trial by jury answers it. And how does the trial by jury answer it? It answers it, as has already been shown throughout this volume, by saying that these mere agents and attorneys, who are chosen by a part only of the people, and are liable to be influenced by partial and unequal purposes, shall not have unlimited authority in the enactment and enforcement of laws; that they shall not exercise _all_ the functions of government. It says that they shall never exercise that ultimate power of compelling obedience to the laws by punishing for disobedience, or of executing the laws against the person or property of any man, without first getting the consent of the people, through a tribunal that may fairly be presumed to represent the whole, or substantially the whole, people. It says that if the power to make laws, and the power also to enforce them, were committed to these agents, they would have all power,--would be absolute masters of the people, and could deprive them of their rights at pleasure. It says, therefore, that the people themselves will hold a veto upon the enforcement of any and every law, which these agents may enact, and that whenever the occasion arises for them to give or withhold their consent,--inasmuch as the whole people cannot assemble, or devote the time and attention necessary to the investigation of each case,--twelve of their number shall be taken by lot, or otherwise at random, from the whole body; that they shall not be chosen by majorities, (the same majorities that elected the agents who enacted the laws to be put in issue,) nor by any interested or suspected party; that they shall not be appointed by, or be in any way dependent upon, those who enacted the law; that their opinions, whether for or against the law that is in issue, shall not be inquired of beforehand; and that if these twelve men give their consent to the enforcement of the law, their consent shall stand for the consent of the whole. This is the mode, which the trial by jury provides, for keeping the government within the limits designed by the whole people, who have associated for its establishment. And it is the only mode, provided either by the English or American constitutions, for the accomplishment of that object. But it will, perhaps, be said that if the minority can defeat the will of the majority, then the minority _rule_ the majority. But this is not true in any unjust sense. The minority enact no laws of their own. They simply refuse their assent to such laws of the majority as they do not approve. The minority assume no authority over the majority; they simply defend themselves. They do not interfere with the right of the majority to seek their own happiness in their own way, so long as they (the majority) do not interfere with the minority. They claim simply not to be oppressed, and not to be compelled to assist in doing anything which they do not approve. They say to the majority, "We will unite with you, if you desire it, for the accomplishment of all those purposes, in which we have a common interest with you. You can certainly expect us to do nothing more. If you do not choose to associate with us on those terms, there must be two separate associations. You must associate for the accomplishment of your purposes; we for the accomplishment of ours." In this case, the minority assume no authority over the majority; they simply refuse to surrender their own liberties into the hands of the majority. They propose a union; but decline submission. The majority are still at liberty to refuse the connection, and to seek their own happiness in their own way, except that they cannot be gratified in their desire to become absolute masters of the minority. But, it may be asked, how can the minority be trusted to enforce even such legislation as is equal and just? The answer is, that they are as reliable for that purpose as are the majority; they are as much presumed to have associated, and are as likely to have associated, for that object, as are the majority; and they have as much interest in such legislation as have the majority. They have even more interest in it; for, being the weaker party, they must rely on it for their security,--having no other security on which they can rely. Hence their consent to the establishment of government, and to the _taxation_ required for its support, is _presumed_, (although it ought not to be presumed,) without any express consent being given. This presumption of their consent to be taxed for the maintenance of laws, would be absurd, if they could not themselves be trusted to act in good faith in enforcing those laws. And hence they cannot be presumed to have consented to be taxed for the maintenance of any laws, except such as they are themselves ready to aid in enforcing. It is therefore unjust to tax them, unless they are eligible to seats in a jury, with power to judge of the justice of the laws. Taxing them for the support of the laws, on the assumption that they are in favor of the laws, and at the same time refusing them the right, as jurors, to judge of the justice of the laws, on the assumption that they are opposed to the laws, are flat contradictions. But, it will be asked, what motive have the majority, when they have all power in their own hands, to submit their will to the veto of the minority? One answer is, that they have the motive of justice. It would be _unjust_ to compel the minority to contribute, by taxation, to the support of any laws which they did not approve. Another answer is, that if the stronger party wish to use their power only for purposes of justice, they have no occasion to fear the veto of the weaker party; for the latter have as strong motives for the maintenance of _just_ government, as have the former. Another answer is, that if the stronger party use their power _unjustly_, they will hold it by an uncertain tenure, especially in a community where knowledge is diffused; for knowledge will enable the weaker party to make itself in time the stronger party. It also enables the weaker party, even while it remains the weaker party, perpetually to annoy, alarm, and injure their oppressors. Unjust power,--or rather power that is _grossly_ unjust, and that is known to be so by the minority,--can be sustained only at the expense of standing armies, and all the other machinery of force; for the oppressed party are always ready to risk their lives for purposes of vengeance, and the acquisition of their rights, whenever there is any tolerable chance of success. Peace, safety, and quiet for all, can be enjoyed only under laws that obtain the consent of all. Hence tyrants frequently yield to the demands of justice from those weaker than themselves, as a means of buying peace and safety. Still another answer is, that those who are in the majority on one law, will be in the minority on another. All, therefore, need the benefit of the veto, at some time or other, to protect themselves from injustice. That the limits, within which legislation would, by this process, be confined, would be exceedingly narrow, in comparison with those it at present occupies, there can be no doubt. All monopolies, all special privileges, all sumptuary laws, all restraints upon any traffic, bargain, or contract, that was naturally lawful,[117] all restraints upon men's natural rights, the whole catalogue of _mala prohibita_, and all taxation to which the taxed parties had not individually, severally, and freely consented, would be at an end; because all such legislation implies a violation of the rights of a greater or less minority. This minority would disregard, trample upon, or resist, the execution of such legislation, and then throw themselves upon a jury of the whole people for justification and protection. In this way all legislation would be nullified, except the legislation of that general nature which impartially protected the rights, and subserved the interests, of all. The only legislation that could be sustained, would probably be such as tended directly to the maintenance of justice and liberty; such, for example, as should contribute to the enforcement of contracts, the protection of property, and the prevention and punishment of acts intrinsically criminal. In short, government in practice would be brought to the necessity of a strict adherence to natural law, and natural justice, instead of being, as it now is, a great battle, in which avarice and ambition are constantly fighting for and obtaining advantages over the natural rights of mankind. [Footnote 117: Such as restraints upon banking, upon the rates of interest, upon traffic with foreigners, &c., &c.] APPENDIX. TAXATION. It was a principle of the Common Law, as it is of the law of nature, and of common sense, that no man can be taxed without his personal consent. The Common Law knew nothing of that system, which now prevails in England, of _assuming_ a man's own consent to be taxed, because some pretended representative, whom he never authorized to act for him, has taken it upon himself to consent that he may be taxed. That is one of the many frauds on the Common Law, and the English constitution, which have been introduced since Magna Carta. Having finally established itself in England, it has been stupidly and servilely copied and submitted to in the United States. If the trial by jury were reëstablished, the Common Law principle of taxation would be reëstablished with it; for it is not to be supposed that juries would enforce a tax upon an individual which he had never agreed to pay. Taxation without consent is as plainly robbery, when enforced against one man, as when enforced against millions; and it is not to be imagined that juries could be blind to so self-evident a principle. Taking a man's money without his consent, is also as much robbery, when it is done by millions of men, acting in concert, and calling themselves a government, as when it is done by a single individual, acting on his own responsibility, and calling himself a highwayman. Neither the numbers engaged in the act, nor the different characters they assume as a cover for the act, alter the nature of the act itself. If the government can take a man's money without his consent, there is no limit to the additional tyranny it may practise upon him; for, with his money, it can hire soldiers to stand over him, keep him in subjection, plunder him at discretion, and kill him if he resists. And governments always will do this, as they everywhere and always have done it, except where the Common Law principle has been established. It is therefore a first principle, a very _sine qua non_ of political freedom, that a man can be taxed only by his personal consent. And the establishment of this principle, with _trial by jury_, insures freedom of course; because: 1. No man would pay his money unless he had first contracted for such a government as he was willing to support; and, 2. Unless the government then kept itself within the terms of its contract, juries would not enforce the payment of the tax. Besides, the agreement to be taxed would probably be entered into but for a year at a time. If, in that year, the government proved itself either inefficient or tyrannical, to any serious degree, the contract would not be renewed. The dissatisfied parties, if sufficiently numerous for a new organization, would form themselves into a separate association for mutual protection. If not sufficiently numerous for that purpose, those who were conscientious would forego all governmental protection, rather than contribute to the support of a government which they deemed unjust. All legitimate government is a mutual insurance company, voluntarily agreed upon by the parties to it, for the protection of their rights against wrong-doers. In its voluntary character it is precisely similar to an association for mutual protection against fire or shipwreck. Before a man will join an association for these latter purposes, and pay the premium for being insured, he will, if he be a man of sense, look at the articles of the association; see what the company promises to do; what it is likely to do; and what are the rates of insurance. If he be satisfied on all these points, he will become a member, pay his premium for a year, and then hold the company to its contract. If the conduct of the company prove unsatisfactory, he will let his policy expire at the end of the year for which he has paid; will decline to pay any further premiums, and either seek insurance elsewhere, or take his own risk without any insurance. And as men act in the insurance of their ships and dwellings, they would act in the insurance of their properties, liberties and lives, in the political association, or government. The political insurance company, or government, have no more right, in nature or reason, to _assume_ a man's consent to be protected by them, and to be taxed for that protection, when he has given no actual consent, than a fire or marine insurance company have to assume a man's consent to be protected by them, and to pay the premium, when his actual consent has never been given. To take a man's property without his consent is robbery; and to assume his consent, where no actual consent is given, makes the taking none the less robbery. If it did, the highwayman has the same right to assume a man's consent to part with his purse, that any other man, or body of men, can have. And his assumption would afford as much moral justification for his robbery as does a like assumption, on the part of the government, for taking a man's property without his consent. The government's pretence of protecting him, as an equivalent for the taxation, affords no justification. It is for himself to decide whether he desires such protection as the government offers him. If he do not desire it, or do not bargain for it, the government has no more right than any other insurance company to impose it upon him, or make him pay for it. Trial by the country, and no taxation without consent, were the two pillars of English liberty, (when England had any liberty,) and the first principles of the Common Law. They mutually sustain each other; and neither can stand without the other. Without both, no people have any guaranty for their freedom; with both, no people can be otherwise than free.[118] By what force, fraud, and conspiracy, on the part of kings, nobles, and "a few wealthy freeholders," these pillars have been prostrated in England, it is designed to show more fully in the next volume, if it should be necessary. [Footnote 118: Trial by the country, and no taxation without consent, mutually sustain each other, and can be sustained only by each other, for these reasons: 1. Juries would refuse to enforce a tax against a man who had never agreed to pay it. They would also protect men in forcibly resisting the collection of taxes to which they had never consented. Otherwise the jurors would authorize the government to tax themselves without their consent,--a thing which no jury would be likely to do. In these two ways, then, trial by the country would sustain the principle of no taxation without consent. 2. On the other hand, the principle of no taxation without consent would sustain the trial by the country, because men in general would not consent to be taxed for the support of a government under which trial by the country was not secured. Thus these two principles mutually sustain each other. But, if either of these principles were broken down, the other would fall with it, and for these reasons: 1. If trial by the country were broken down, the principle of no taxation without consent would fall with it, because the government would then be _able_ to tax the people without their consent, inasmuch as the legal tribunals would be mere tools of the government, and would enforce such taxation, and punish men for resisting such taxation, as the government ordered. 2. On the other hand, if the principle of no taxation without consent were broken down, trial by the country would fall with it, because the government, if it could tax people without their consent, would, of course, take enough of their money to enable it to employ all the force necessary for sustaining its own tribunals, (in the place of juries,) and carrying their decrees into execution.]